ERRAF Emera Inc (PK)

 

As filed with the Securities and Exchange Commission on November 15, 2024.

Registration No. 333-

 

 

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM F-10 and FORM S-4

 

 

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

Form F-10		Form S-4
Emera Incorporated
		(FOR CO-REGISTRANTS, PLEASE SEE TABLE OF CO- REGISTRANTS ON THE FOLLOWING PAGE)
(Exact Name of Registrant as Specified in its Charter)

Nova Scotia, Canada		4911		Not Applicable
(State or Other Jurisdiction of Incorporation or Organization)		(Primary Standard Industrial Classification Code Number)		(I.R.S. Employer Identification No.)

 

5151 Terminal Road

Halifax NS Canada

B3J 1A1

Telephone: (902) 428-6096

(Address and telephone number of Registrant’s principal executive offices)

 

 

EUSHI Finance, Inc.

37 Route 236

Kittery Properties Suite 101

Kittery, ME 03904

Telephone: (902) 428-6213

(Name, address and telephone number of agent for service)

 

Copies to:

 

Brian C. Curry		Byron B. Rooney		John Macfarlane
5151 Terminal Road Halifax Nova Scotia Canada B3J 1A1 (902) 428-6996		Davis Polk & Wardwell LLP 450 Lexington Avenue New York, New York U.S.A., 10017 (212) 450-4000		Osler, Hoskin & Harcourt LLP Box 50, 1 First Canadian Place Toronto, Ontario, Canada M5X 1B8 (416) 362-2111

 

 

Form F-10		Form S-4
Province of Nova Scotia, Canada (Principal Jurisdiction Regulating this Form F-10 Offering)   It is proposed that this filing shall become effective (check appropriate box):   A. ☐ upon filing with the Commission, pursuant to Rule 467(a) (if in connection with an offering being made contemporaneously in the United States and Canada).   B. ☐ at some future date (check appropriate box below):   1. ☐ Pursuant to Rule 467(b) on ( ) at ( ) (designate a time not sooner than seven calendar days after filing).   2. ☐ Pursuant to Rule 467(b) on ( ) at ( ) (designate a time seven calendar days or sooner after filing) because the securities regulatory authority in the review jurisdiction has issued a receipt or notification of clearance on ( ).   3. ☐ Pursuant to Rule 467(b) as soon as practicable after notification of the Commission by the registrant or the Canadian securities regulatory authority of the review jurisdiction that a receipt or notification of clearance has been issued with respect hereto.   4. ☒ After the filing of the next amendment to this form (if preliminary material is being filed).   If any of the securities being registered on this Form F- 10 are to be offered on a delayed or continuous basis pursuant to the home jurisdiction’s shelf prospectus offering procedures, check the following box.		Approximate date of commencement of proposed sale of the securities to the public:  As soon as practicable after the effective date of this Registration Statement.   If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instructions G, check the following box.  ☐   If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐    If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐    Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer”, “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (check one)   Large accelerated filer  ☐       Accelerated filer                    ☐   Non-accelerated filer    ☒       Smaller reporting company  ☐   Emerging growth company  ☐   If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐   If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:   Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer)  ☐   Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)  ☐

The registrants hereby amend this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrants shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act, or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.

 

TABLE OF ADDITIONAL CO-REGISTRANTS

 

Form S-4

 

Exact Name of Registrant Issuer as Specified in  its Charter (or Other Organizational Document)		State or Other Jurisdiction of Incorporation or Organization		Primary Standard Industrial Classification Code Number		I.R.S. Employer Identification Number		Addresses and Telephone Numbers of Principal  Executive Offices
EUSHI Finance, Inc.		Delaware		4911		81-2897494		EUSHI Finance, Inc. 37 Route 236  Kittery Properties Suite 101 Kittery, ME 03904  Telephone: (902) 428-6213

Exact Name of Registrant Guarantor as Specified in  its Charter (or Other Organizational Document)		State or Other Jurisdiction of Incorporation or Organization		Primary Standard Industrial Classification Code Number		I.R.S. Employer Identification Number		Addresses and Telephone Numbers of Principal  Executive Offices
Emera US Holdings Inc.		Delaware		4911		02-0527409		Emera US Holdings Inc. 702 N Franklin Street  Tampa, FL 33602 Telephone: (813) 228-1111

 

PART 1  

INFORMATION REQUIRED TO BE DELIVERED

TO OFFEREES OR PURCHASERS

 

PROSPECTUS (SUBJECT TO COMPLETION)

The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and we are not soliciting offers to buy these securities in any state where the offer or sale is not permitted.

 

EUSHI FINANCE, INC.

 

Offer to Exchange the Outstanding Securities below:

 

Series	Registered CUSIP	Rule 144A CUSIP	Regulation S CUSIP
7.625% Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2054	29882D AB9	29882D AA1	U2915E AA4

 

We are offering to exchange new US$500,000,000 7.625% Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2054 (the “New Notes”), which have been registered under the Securities Act of 1933, as amended (the “Securities Act”) for our currently outstanding US$500,000,000 7.625% Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2054 (the “Old Notes”). We refer to the Old Notes and the New Notes together as the “Notes.” The terms of the New Notes are identical in all material respects to the terms of the Old Notes, except that the New Notes have been registered under the Securities Act, and the transfer restrictions and registration rights relating to the Old Notes do not apply to the New Notes.  The Old Notes are, and the New Notes will be, fully and unconditionally guaranteed by Emera Incorporated, a Nova Scotia company (“Emera”) and Emera US Holdings Inc., a Delaware corporation (“EUSHI,” and together with Emera, “Guarantors”), on a joint, several and subordinated basis, subject to customary release provisions as set forth in the indenture dated June 18, 2024 between EUSHI Finance, Inc. (the “Issuer”), the Guarantors and Equiniti Trust Company, LLC (the “Trustee”), as supplemented by a first supplemental indenture dated June 18, 2024 (collectively, the “Indenture”).

 

The Exchange Offer

 

·

We will exchange all Old Notes that are validly tendered and not validly withdrawn for an equal principal amount of New Notes that are freely tradable in the United States.

·

You may withdraw tenders of Old Notes at any time prior to the expiration date of the exchange offer.

·

The exchange offer expires at 11:59 p.m., New York City time, on  , 2024, unless extended. We do not currently intend to extend the expiration date.

·

The exchange of Old Notes for New Notes in the exchange offer will not be a taxable event for U.S. federal income tax purposes.

·

We will not receive any proceeds from the exchange offer.

 

The New Notes

 

·

The New Notes are being offered in order to satisfy certain of our obligations under the registration rights agreement entered into in connection with the placement of the Old Notes.

·

The terms of the New Notes to be issued in the exchange offer are substantially identical to the Old Notes, except that the New Notes will be freely tradable in the United States.

·

The Notes will be fully and unconditionally guaranteed, on a joint, several and subordinated basis (the “Guarantees”), by the Guarantors. See “Description of the New Notes—Guarantees.” EUSHI is a direct and indirect wholly-owned subsidiary of Emera and the Issuer is a direct, wholly-owned subsidiary of EUSHI.

 

Resales of New Notes

 

·

The New Notes may be sold in the over-the-counter market, in negotiated transactions or through a combination of such methods. We do not plan to list the New Notes on a national market.

·

You are required to make the representations described on page 22 to us.

 

All untendered Old Notes will continue to be subject to the restrictions on transfer set forth in the Old Notes and in the Indenture. In general, the Old Notes may not be offered or sold, unless registered under the Securities Act, except pursuant to an exemption from, or in a transaction not subject to, the Securities Act, and applicable state securities laws. Other than in connection with the exchange offer, we do not currently anticipate that we will register the Old Notes under the Securities Act.

 

See “Risk Factors” beginning on page 12 for a discussion of risk factors that should be considered by you prior to tendering your Old Notes in the exchange offer.

 

The Notes have not been approved or disapproved by the United States Securities and Exchange Commission (the “SEC”) or any state securities commission nor has the SEC or any state securities commission passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.

 

Emera is permitted, under the multi-jurisdictional disclosure system adopted in the U.S., to prepare this prospectus in accordance with Canadian disclosure requirements. You should be aware that such requirements are different from those in the U.S.

 

Financial statements incorporated herein have been prepared in accordance with U.S. generally accepted accounting principles.

 

Owning the Notes may subject you to tax consequences both in the United States and Canada.

 

Your ability to enforce civil liabilities under U.S. federal securities laws may be affected adversely by the fact that Emera is organized under the laws of Nova Scotia, that some or all of the officers and directors of Emera may be residents of Canada, that some or all of the experts named herein may be residents of Canada and that all or a substantial portion of our assets and the assets of said persons are located outside of the U.S.

 

Prospective investors should be aware that, during the period of the exchange offer, the registrants or their respective affiliates, directly or indirectly, may bid for or make purchases of the debt securities to be distributed or to be exchanged, or certain related debt securities, as permitted by applicable laws or regulations of Canada, or its provinces or territories.

 

Each broker-dealer that receives New Notes for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of such New Notes. The letter of transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of New Notes received in exchange for Old Notes where such Old Notes were acquired by such broker-dealer as a result of market-making activities or other trading activities. We have agreed that, for a period of six months after the expiration date, we will make this prospectus available to any broker-dealer for use in connection with any such resale. See “Plan of Distribution.”

 

The date of this prospectus is                       , 2024

 

table of contents 

Page

 

ABOUT THIS PROSPECTUS	iii
TAX CONSIDERATIONS	v
ABOUT THIS PROSPECTUS	vi
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS	vii
DOCUMENTS INCORPORATED BY REFERENCE	ix
CURRENCY	xi
THIRD PARTY SOURCES AND INDUSTRY DATA	xii
SUMMARY	1
THE EXCHANGE OFFER	2
THE NEW NOTES	7
RISK FACTORS	12
GUARANTEED DEBT	19
USE OF PROCEEDS	20
CONSOLIDATED CAPITALIZATION	21
THE EXCHANGE OFFER	22
DESCRIPTION OF THE NEW NOTES	32
MATERIAL UNITED STATES TAX CONSEQUENCES OF THE EXCHANGE OFFER	48
CERTAIN CANADIAN FEDERAL INCOME TAX CONSIDERATIONS	49
PLAN OF DISTRIBUTION	50
VALIDITY OF SECURITIES	51
EXPERTS	52
DOCUMENTS FILED AS PART OF THE REGISTRATION STATEMENT	53

 

ABOUT THIS PROSPECTUS

 

We have not authorized anyone to provide you with any information other than that contained or incorporated by reference in this prospectus or in any free writing prospectus prepared by or on behalf of us or to which we have referred you. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We are offering the Notes for exchange only in jurisdictions where such offers are permitted. The information contained in this prospectus is accurate only as of the date hereof, regardless of the time of delivery of this prospectus or of the exchange of the Notes offered hereby.

 

Unless otherwise indicated by the context, the terms (i) “we,” “our,” and “us” refer to Emera Incorporated, EUSHI Finance, Inc., Emera US Holdings Inc., and, if the context requires, Emera Incorporated’s subsidiaries, (ii) “Emera” refers to Emera Incorporated and, if the context requires, its subsidiaries, (iii) the “Issuer” refers to EUSHI Finance Inc., (iv) the “Guarantors” refers collectively to Emera Incorporated and Emera US Holdings Inc., and (v) “EUSHI” refers to Emera US Holdings Inc.

 

In this prospectus, unless otherwise specified or the context otherwise requires, all dollar amounts are expressed in Canadian dollars. References to “dollars,” “$,” “CAD” or “Cdn$” are to lawful currency of Canada. References to “U.S. dollars,” “USD” or “US$” are to lawful currency of the United States of America.

 

The “Old Notes” consisting of the US$500,000,000 7.625% Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2054 which were issued June 18, 2024 and the “New Notes” consisting of the US$500,000,000 7.625% Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2054 offered pursuant to this prospectus are sometimes collectively referred to in this prospectus as the “Notes.”

 

Each broker-dealer that receives New Notes for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of such New Notes. The letter of transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of New Notes received in exchange for Notes where such Notes were acquired by such broker-dealer as a result of market-making activities or other trading activities.

 

We and the guarantors have agreed that, starting on the expiration date and ending on the close of business six months after the expiration date, we will make this prospectus available to any broker-dealer for use in connection with any such resale. See “Plan of Distribution.”

 

TAX CONSIDERATIONS

 

Holders of Notes are advised to consult their own tax advisors as to the consequences of the exchange described herein and the acquiring, holding and disposing of the New Notes, including, without limitation, the application of United States and Canadian federal tax laws to their particular situations, as well as any consequences to them under the laws of any other taxing jurisdiction. See “Material United States Tax Consequences of the Exchange Offer” and “Certain Canadian Federal Income Tax Considerations.”

 

ABOUT THIS PROSPECTUS

 

Emera is a reporting issuer in Canada, and as such Emera is subject to continuous disclosure and other obligations applicable to Canadian reporting issuers under applicable Canadian provincial securities laws. Emera files annual and quarterly reports, management’s discussion and analysis, management information circulars, annual information forms and other information with the various securities commissions or other securities regulatory authorities in the provinces of Canada (the “CSA”). The filings that Emera makes with the CSA may be retrieved, accessed and printed, free of charge, through SEDAR+, the secure web-based system used by all market participants to file, disclose and search for information in Canada's capital markets maintained on behalf of the CSA. The URL of that website is http://www.sedarplus.ca. In addition, the SEC maintains an Internet site at http://www.sec.gov (“EDGAR”) that contains reports, proxy and information statements and other information Emera has filed or furnished electronically with the SEC. Emera also makes this and other information available on its corporate website at http://www.emera.com. The information found on its corporate website and the information that it files on SEDAR or files or furnishes on EDGAR does not, except as specifically set forth below, form part of this prospectus and is not incorporated by reference herein.

 

Emera does not endorse or accept any responsibility for the content on, or the use of, SEDAR+ or EDGAR. Reference is made to SEDAR+ and EDGAR for informational purposes only, and is not intended for trading or investment purposes. Emera does not guarantee the sequence, accuracy or completeness of any information or data displayed through SEDAR+ or EDGAR, nor shall they be liable in any way to any offeree or to any other person, firm or corporation whatsoever for any delays, inaccuracies, errors in, or omission of any such information or data or the transmission thereof, or for any action taken in reliance thereon, or for any damages arising therefrom or occasioned thereby or by reason of nonperformance or interruption, or termination, of the information or data for any cause whatsoever.

 

SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS

 

This prospectus, including the documents incorporated herein by reference, contains “forward-looking information” and “forward-looking statements” within the meaning of applicable securities laws (collectively, “forward-looking information”). The words “anticipates,” “believes,” “budget,” “could,” “estimates,” “expects,” “forecast,” “intends,” “may,” “might,” “plans,” “projects,” “schedule,” “should,” “targets,” “will,” “would” and similar expressions are often intended to identify forward-looking information, although not all forward-looking information contains these identifying words.

 

The forward-looking information in this prospectus, including the documents incorporated herein by reference, includes statements which reflect the current view of Emera’s management with respect to Emera’s expectations regarding future growth, results of operations, performance, the expected timing and outcome of the pending sale of New Mexico Gas Company, Inc., carbon dioxide emissions reduction goals, business prospects and opportunities. The forward-looking information reflects management’s current beliefs and is based on information currently available to Emera’s management and should not be read as guarantees of future events, performance or results, and will not necessarily be accurate indications of whether, or the time(s) at which, such events, performance or results will be achieved. All such forward-looking information in this prospectus is provided pursuant to safe harbour provisions contained in applicable securities laws.

 

The forward-looking information in this prospectus, including the documents incorporated by reference, is based on reasonable assumptions and is subject to risks, uncertainties and other factors that could cause actual results to differ materially from historical results or results anticipated by the forward-looking information. Factors which could cause results or events to differ from current expectations are discussed in the “Business Overview and Outlook” section of Emera Incorporated Management’s Discussion and Analysis for the three-month and nine month period ended September 30, 2024, filed as Exhibit 99.1 to Emera’s Form 6-K furnished November 12, 2024 and may also include, without limits, statements regarding: Emera’s revenue, earnings and cash flow; the growth and diversification of Emera’s business and earnings base; future annual net income and dividend growth; expansion of Emera’s business; the expected compliance by Emera with the regulation of its operations; the expected timing of regulatory decisions; forecasted capital investment; the nature, timing and costs associated with certain capital projects; the expected impact on Emera of challenges in the global economy; estimated energy consumption rates; expectations related to annual operating cash flows; the expectation that Emera will continue to have reasonable access to capital in the near to medium term; expected debt maturities, repayments and renewals; expectations about increases in interest expense and/or fees associated with debt securities and credit facilities; no material adverse credit rating actions expected in the near term; the successful development of relationships with various stakeholders, the impact of currency fluctuations; expected changes in electricity rates; and the impacts of planned investment by the industry of gas transportation infrastructure within the United States.

 

The forecasts and projections that make up the forward-looking information are based on reasonable assumptions which include, but are not limited to: the receipt of applicable regulatory approvals and requested rate decisions; no significant operational disruptions or environmental liability due to a catastrophic event or environmental upset caused by severe weather or global climate change, other acts of nature or other major events; seasonal weather patterns remaining stable; no significant cyber or physical attacks or disruptions to Emera’s systems; the continued ability to maintain transmission and distribution systems to ensure their continued performance; continued investment in solar, wind and hydro generation; continued natural gas activity; no severe and/or prolonged downturn in economic conditions; sufficient liquidity and capital resources; the continued ability to hedge exposures to fluctuations in interest rates, foreign exchange rates and commodity prices; no significant variability in interest rates; expectations regarding the nature, timing and costs of capital investment of Emera and its subsidiaries; expectations regarding rate base growth; the continued competitiveness of electricity pricing when compared with other alternative sources of energy; the continued availability of commodity supply; the absence of significant changes in government energy plans and environmental laws and regulations that may materially affect Emera’s operations and cash flows; maintenance of adequate insurance coverage; the ability to obtain and maintain licenses and permits; no material decrease in market energy sales prices; favourable labour relations; and sufficient human resources to deliver service and execute Emera’s capital investment plan.

 

The forward-looking information is based on reasonable assumptions and is subject to risks, uncertainties and other factors that could cause actual results to differ materially from historical results or results anticipated by the forward-looking information. Factors that could cause results or events to differ from current expectations include, without limitation: regulatory and political risk; operating and maintenance risks; changes in economic conditions; commodity price and availability risk; liquidity and capital market risk; changes in credit ratings; future dividend

 

growth, rate base growth, and adjusted earnings per common share growth, timing and costs associated with certain capital investments; the expected impacts on Emera of challenges in the global economy; estimated energy consumption rates; risks related to the Notes; maintenance of adequate insurance coverage; changes in customer energy usage patterns; developments in technology that could reduce demand for electricity; global climate change; weather risk, including higher frequency and severity of weather events; risk of wildfires; unanticipated maintenance and other expenditures; system operating and maintenance risk; derivative financial instruments and hedging; interest rate risk; inflation risk; counterparty risk; disruption of fuel supply; country risks; supply chain risk; environmental risks; foreign exchange; regulatory and government decisions, including changes to environmental legislation, financial reporting and tax legislation; risks associated with pension plan performance and funding requirements; loss of service area; risk of failure of information technology infrastructure and cybersecurity risks; uncertainties associated with infectious diseases, pandemics and similar public health threats; market energy sales prices; labour relations; and availability of labour and management resources.

 

Readers are cautioned not to place undue reliance on forward-looking information as actual results could differ materially from the plans, expectations, estimates or intentions and statements expressed in the forward-looking information. All forward-looking information in this prospectus and in the documents incorporated herein by reference is qualified in its entirety by the above cautionary statements and, except as required by law, Emera undertakes no obligation to revise or update any forward-looking information as a result of new information, future events or otherwise.

 

DOCUMENTS INCORPORATED BY REFERENCE

 

The disclosure documents of Emera listed below and filed with the appropriate securities commissions or similar regulatory authorities in each of the provinces of Canada (available on SEDAR+ at www.sedarplus.ca) and filed or furnished with the SEC (available on EDGAR at www.sec.gov) include important business and financial information about Emera and are specifically incorporated by reference into and form an integral part of this prospectus:

 

(a)

Annual Information Form of Emera dated February 26, 2024 for the year ended December 31, 2023, filed as Exhibit 99.1 to Emera’s Form 40-F filed February 26, 2024;

 

(b)

Audited consolidated financial statements of Emera as at and for the years ended December 31, 2023 and December 31, 2022, together with the auditor’s report thereon, filed as Exhibit 99.3 to Emera’s Form 40-F filed February 26, 2024;

 

(c)

Management’s Discussion and Analysis of Emera for the year ended December 31, 2023, filed as Exhibit 99.2 to Emera’s Form 40-F furnished on February 26, 2024;

 

(d)

Unaudited condensed consolidated interim financial statements of Emera as at and for the three and nine months ended September 30, 2024 and 2023, filed as Exhibit 99.2 to Emera’s Form 6-K furnished on November 12, 2024;

 

(e)

Management’s Discussion and Analysis of Emera for the three and nine months ended September 30, 2024, filed as Exhibit 99.1 to Emera’s Form 6-K furnished on November 12, 2024; and

 

(f)

Management Information Circular of Emera distributed in connection with Emera’s annual meeting of shareholders held on May 23, 2024, furnished as Exhibit 99.1 to Emera’s Form 6-K filed April 12, 2024.

 

Any statement contained in a document incorporated or deemed to be incorporated by reference in this prospectus shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained herein, or in any other subsequently filed or furnished document which also is incorporated or is deemed to be incorporated by reference herein, modifies or supersedes such statement. The modifying or superseding statement need not state that it has modified or superseded a prior statement or include any other information set forth in the document that it modifies or supersedes. The making of a modifying or superseding statement will not be deemed to be an admission for any purpose that the modified or superseded statement, when made, constituted a misrepresentation, an untrue statement of a material fact or an omission to state a material fact that is required to be stated or that is necessary to make a statement not misleading in light of the circumstances in which it was made. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.

 

Any documents of the type required by National Instrument 44-101 Short Form Prospectus Distributions to be incorporated by reference in this prospectus, including any material change reports (excluding confidential material change reports), unaudited interim consolidated financial statements, annual consolidated financial statements and the auditors’ report thereon, management’s discussion and analysis, information circulars, annual information forms and business acquisition reports filed by us with the securities commissions or similar authorities in Canada subsequent to the date of this prospectus and prior to the termination of the exchange offer shall be deemed to be incorporated by reference in this prospectus. To the extent that any document or information incorporated by reference into this prospectus is included in a report that is filed with or furnished to the SEC on Form 40-F, 20-F, 10-K, 10-Q, 8-K or 6-K (or any respective successor form), such document or information shall also be deemed to be incorporated by reference as an exhibit to the registration statement of which this prospectus forms a part. In addition, any document or information filed with or furnished to the SEC on Form 6-K should be deemed to be incorporated by reference as an exhibit to the registration statement of which this prospectus forms a part if the Form 6-K expressly so states.

 

Copies of Emera’s documents incorporated herein by reference may be obtained on request without charge from the Corporate Secretary of Emera at 5151 Terminal Road, Halifax, Nova Scotia B3J 1A1 (telephone 902-428-6096). These documents are also available through the internet on Emera’s website at www.emera.com or on SEDAR+ which can be accessed at www.sedarplus.ca. These documents are also available through the internet on

 

EDGAR, which can be accessed at www.sec.gov. The information contained on, or accessible through, any of these websites is not incorporated by reference into this prospectus and is not, and should not be considered to be, a part of this prospectus, unless it is explicitly so incorporated.

 

 

CURRENCY

 

In this prospectus, unless otherwise specified or the context otherwise requires, all dollar amounts are expressed in Canadian dollars. References to “Canadian dollars”, “$”, “CAD” or “Cdn$” are to lawful currency of Canada. References to “U.S. dollars”, “USD”, “US$” or “U.S.$” are to lawful currency of the United States of America.

 

The following table sets forth, for each of the periods indicated, the daily average exchange rate, the average of the daily average exchange rates and the high and low daily average exchange rates of one U.S. dollar in exchange for Canadian dollars as reported by the Bank of Canada.

 

		Nine months ended September 30								Year ended December 31
		2024				2023				2023				2022				2021
High			1.3858			1.3807					1.3875				1.3856				1.2942
Low			1.3316			1.3128					1.3128				1.2451				1.2040
Average			1.3604			1.3457					1.3497				1.3013				1.2535
Period End			1.3499			1.3520					1.3226				1.3544				1.2678

 

On November 14, 2024, the daily average exchange rate as reported by the Bank of Canada was US$1.00 = $1.4027.

 

THIRD PARTY SOURCES AND INDUSTRY DATA

 

This prospectus contains or incorporates by reference information from publicly available third party sources as well as industry data prepared by Emera’s management on the basis of its knowledge of the regulated electric and gas utility industry in which Emera operates (including management’s estimates and assumptions relating to the industry based on that knowledge). Emera’s management’s knowledge of the regulated utility industry has been developed through its experience and participation in the industry. Emera’s management believes that its industry data is accurate and that its estimates and assumptions are reasonable, but there can be no assurance as to the accuracy or completeness of this data. Third-party sources generally state that the information contained therein has been obtained from sources believed to be reliable, but there can be no assurance as to the accuracy or completeness of included information. Although Emera’s management believes it to be reliable, Emera has not independently verified any of the data from third-party sources referred to in this prospectus or the documents incorporated by reference herein or analyzed or verified the underlying studies or surveys relied upon or referred to by such sources, or ascertained the underlying economic assumptions relied upon or referred to by such sources.

 

 

RISK FACTORS

 

An investment in the Notes involves certain risks. A prospective purchaser of the Notes should carefully consider the risk factors set forth below as well as the other information contained in this prospectus and the documents incorporated by reference herein before you decide to tender Old Notes in the exchange offer, including, without limitation, the risk factors discussed under (i) the heading “Risk Factors” in the Emera’s Annual Information Form dated February 26, 2024 for the year ended December 31, 2023 (filed on EDGAR as Exhibit 99.1 to Emera’s Form 40-F filed February 26, 2024 and incorporated by reference herein); (ii) the heading “Principal Financial Risks and Uncertainties” in note 27 to Emera’s audited consolidated financial statements as at and for the years ended December 31, 2023 and 2022 filed on Exhibit 99.3 to Emera’s Form 40-F filed February 26, 2024; (iii) the heading “Enterprise Risk and Risk Management” in Emera’s Management’s Discussion and Analysis for the year ended December 31, 2023; and (iv) the heading “Principal Financial Risks and Uncertainties” in note 21 to Emera’s unaudited condensed consolidated interim financial statements as at and for the three and nine months ended September 30, 2024 and September 30, 2023 filed on Exhibit 99.2 to Emera’s Form 6-K furnished on November 12, 2024. The risks described below are not the only risks that may affect us. Additional risks and uncertainties not currently known to us or those we currently view to be immaterial may also materially and adversely affect our business, financial condition or results of operations. Any of the following risks could materially and adversely affect our business, financial condition or results of operations. In such a case, you may lose all or a part of your investment.

 

Risks Related to the Exchange Offer

 

If you choose not to exchange your Old Notes in the exchange offer, the transfer restrictions currently applicable to your Old Notes will remain in force and the market price of your Old Notes could decline.

 

If you do not exchange your Old Notes for New Notes in the exchange offer, then you will continue to be subject to the transfer restrictions on the Old Notes as set forth in the prospectus distributed in connection with the private offering of the Old Notes. In general, the Old Notes may not be offered or sold unless they are registered or exempt from registration under the Securities Act and applicable state securities laws. Except as required by the registration rights agreement entered into in connection with the private offering of the Old Notes, we do not intend to register resales of the Old Notes under the Securities Act. The tender of Old Notes under the exchange offer will reduce the principal amount of the Old Notes outstanding, which may have an adverse effect upon, and increase the volatility of, the market price of the Old Notes due to a reduction in liquidity. Holders who do not tender their Old Notes will not have any further registration rights or any right to receive additional interest under the registration rights agreement or otherwise.

 

You must follow the exchange offer procedures carefully in order to receive the New Notes.

 

If you do not follow the procedures described in this prospectus, you will not receive any New Notes. If you want to tender your Old Notes in exchange for New Notes, you will need to contact a DTC participant to complete the book-entry transfer procedures, or otherwise complete and transmit a letter of transmittal, in each case described under “The Exchange Offer,” prior to the expiration date, and you should allow sufficient time to ensure timely completion of these procedures to ensure delivery. No one is under any obligation to give you notification of defects or irregularities with respect to tenders of Old Notes for exchange. For additional information, see the section captioned “The Exchange Offer” in this prospectus.

 

You may not be able to sell your Old Notes if you do not exchange them for New Notes in the exchange offer.

 

If you do not exchange your Old Notes for New Notes in the exchange offer, your Old Notes will continue to be subject to the restrictions on transfer as stated in the legend on the Old Notes.  In general, you may not reoffer, resell or otherwise transfer the Old Notes in the United States unless they are:  

 

·

registered under the Securities Act;

 

·

offered or sold under an exemption from the Securities Act and applicable state securities laws; or

 

·

offered or sold in a transaction not subject to the Securities Act and applicable state securities laws.

 

We do not currently anticipate that we will register the Old Notes under the Securities Act.

 

The market for Old Notes may be significantly more limited after the exchange offer and you may not be able to sell your Old Notes after the exchange offer.

 

If Old Notes are tendered and accepted for exchange under the exchange offer, the trading market for Old Notes that remain outstanding may be significantly more limited.  As a result, the liquidity of the Old Notes not tendered for exchange could be adversely affected.  The extent of the market for Old Notes and the availability of price quotations would depend upon a number of factors, including the number of holders of Old Notes remaining outstanding and the interest of securities firms in maintaining a market in the Old Notes.  An issue of securities with a similar outstanding market value available for trading, which is called the “float,” may command a lower price than would be comparable to an issue of securities with a greater float.  As a result, the market price for Old Notes that are not exchanged in the exchange offer may be affected adversely as Old Notes exchanged in the exchange offer reduce the float.  The reduced float also may make the trading price of the Old Notes that are not exchanged more volatile.

 

Your Old Notes will not be accepted for exchange if you fail to follow the exchange offer procedures and, as a result, your Old Notes will continue to be subject to existing transfer restrictions and you may not be able to sell your Old Notes.

 

We will not accept your Old Notes for exchange if you do not follow the exchange offer procedures.  We will issue New Notes as part of the exchange offer only after timely receipt of your Old Notes, a properly completed and duly executed letter of transmittal and all other required documents.  Therefore, if you want to tender your Old Notes, please allow sufficient time to ensure timely delivery.  If we do not receive your Old Notes, letter of transmittal and other required documents by the expiration date of the exchange offer, we will not accept your Old Notes for exchange.  We are under no duty to give notification of defects or irregularities with respect to the tenders of Old Notes for exchange.  If there are defects or irregularities with respect to your tender of Old Notes, we will not accept your Old Notes for exchange.

 

There is no established trading market for the New Notes.

 

The New Notes will constitute a new issue of securities with no established trading market.  A trading market for the New Notes may not develop.  If a market does develop, it may not provide you the ability to sell your New Notes.  Further, you may not be able to sell your New Notes at a favorable price or at all.  If a market does develop, the New Notes could trade at prices that may be higher or lower than their principal amount or purchase price, depending on many factors, including prevailing interest rates, the market for similar notes and our financial performance.

 

Some persons who participate in the exchange offer must deliver a prospectus in connection with resales of the New Notes.

 

Based on interpretations of the staff of the SEC contained in Exxon Capital Holdings Corp., SEC No-Action Letter available May 13, 1988, Morgan Stanley & Co., Incorporated, SEC No-Action Letter available June 5, 1991 and Shearman & Sterling, SEC No-Action Letter available July 2, 1993, we believe that you may offer for resale, resell or otherwise transfer the New Notes without compliance with the registration and prospectus delivery requirements of the Securities Act.  However, in some instances described in this prospectus under “Plan of Distribution,” you will remain obligated to comply with the registration and prospectus delivery requirements of the Securities Act to transfer your New Notes.  In these cases, if you transfer any New Note without delivering a prospectus meeting the requirements of the Securities Act or without an exemption from registration of your New Notes under the Securities Act, you may incur liability under this Act.  We do not and will not assume, or indemnify you against, this liability.

 

Risks Related to the Notes

 

Emera has a substantial amount of indebtedness which may adversely affect its cash flow and ability to operate its business.

 

Emera has incurred a significant amount of debt. As of September 30, 2024, Emera has approximately Cdn$19,343 million of total indebtedness outstanding.

 

The Notes are obligations of the Issuer and the Guarantors and not of the Issuer’s or the Guarantors’ subsidiaries and will be subordinated to all other indebtedness of the Issuer and the Guarantors (other than any unsecured indebtedness the Issuer or the Guarantors may incur in the future that ranks junior to or pari passu with the Notes) and structurally subordinated to the claims of the Issuer’s and the Guarantors’ subsidiaries’ creditors.

 

The Notes will be subordinated in right of payment to all of the Issuer’s and the Guarantors’ existing and future Senior Indebtedness. This means that, in the event of (a) the Issuer’s or the Guarantors’ dissolution, winding-up, liquidation or reorganization, (b) the Issuer’s or the Guarantors’ failure to pay any interest, principal or other monetary amounts due on any of its Senior Indebtedness when due (and continuance of that default beyond any applicable grace period) or (c) acceleration of the maturity of any of the Issuer’s or the Guarantors’ Senior Indebtedness as a result of a default, the Issuer will not be permitted to make any payments on the Notes until, in the case of clause (a), all amounts due or to become due on all of its Senior Indebtedness have been paid in full, or, in the case of clauses (b) and (c), all amounts due on its Senior Indebtedness have been paid in full. For additional information about the subordination of the Notes to our Senior Indebtedness, see “Description of the New Notes— Subordination”

 

The Notes will also be structurally subordinated to any indebtedness and other liabilities of Emera’s subsidiaries (other than EUSHI and the Issuer). As of September 30, 2024, the Issuer and the Guarantors had Cdn$3,442 million of indebtedness, none of which was secured, and Emera’s subsidiaries (other than EUSHI and the Issuer) had approximately Cdn$15,901 million in indebtedness.

 

Due to the subordination of the Notes to the Senior Indebtedness and the effective subordination of the Notes to any secured indebtedness of the Issuer and the Guarantors, if either the Issuer’s or the Guarantors’ assets are distributed upon their respective dissolution, winding-up, liquidation or reorganization, holders of their Senior Indebtedness and any secured indebtedness would likely recover more, ratably, than the holders of the Notes, and it is possible that no payments would be made to the holders of the Notes.

 

The Notes will rank equally in right of payment with any existing and future unsecured and subordinated indebtedness that the Issuer or the Guarantors may incur from time to time if the terms of such indebtedness provide that it ranks equally with the Notes in right of payment.

 

The Issuer can defer interest payments on the Notes for one or more Optional Deferral Periods of up to 20 consecutive semi-annual Interest Payment Periods each. This may affect the market price of the Notes.

 

So long as no Event of Default with respect to the Notes has occurred and is continuing, the Issuer may, at its option, defer interest payments on the Notes, from time to time, for one or more Optional Deferral Periods of up to 20 consecutive semi-annual Interest Payment Periods each, except that no such Optional Deferral Period may extend beyond the final maturity date of the Notes or end on a day other than the day immediately preceding an interest payment date. In other words, the Issuer may declare at its discretion up to a ten-year interest payment moratorium on the Notes and may choose to do that on one or more occasions. Moreover, following the end of any Optional Deferral Period, if all amounts then due on the Notes are paid, the Issuer could immediately start a new Optional Deferral Period of up to 20 consecutive semi-annual Interest Payment Periods. No interest will be paid or payable on the Notes during any Optional Deferral Period unless the Issuer elects, at its option, to redeem Notes during such Optional Deferral Period, in which case accrued and unpaid interest to but excluding the redemption date will be due and payable on such redemption date only on the Notes being redeemed, or unless the principal of and interest on the Notes shall have been declared due and payable as a result of an Event of Default with respect to the Notes, in which case all accrued and unpaid interest on the Notes shall become due and payable. Instead, interest on the Notes would be deferred but would continue to accrue at the then-applicable interest rate on the Notes (as reset from time to time on any Reset Date occurring during such Optional Deferral Period in accordance with the terms of the Notes). In addition, during any Optional Deferral Period, interest on the deferred interest would accrue at the then-applicable interest rate on the Notes (as reset from time to time on any Reset Date occurring during such Optional Deferral Period in accordance with the terms of the Notes), compounded semi-annually, to the extent permitted by applicable law. If the Issuer exercises this interest deferral right, the Notes may trade at a price that does not reflect the value of accrued and unpaid interest on the Notes or that is otherwise substantially less than the price at which the Notes would have traded if the Issuer had not exercised such deferral right. If the Issuer exercises this interest deferral right and you sell your Notes during an Optional Deferral Period, you may not receive the same return on your investment as a holder that continues to hold its Notes until the Issuer pays the deferred interest following the end of such Optional Deferral Period. In addition, as a result of the Issuer’s right to defer interest payments, the market price of the Notes may be more volatile than other securities that do not have these rights.

 

 

The Issuer or the Guarantors could enter into various transactions that could increase the amount of its outstanding indebtedness, or adversely affect their capital structure or credit ratings, or otherwise adversely affect holders of the Notes.

 

The terms of the Notes will not prevent the Issuer or the Guarantors from entering into a variety of acquisition, refinancing, recapitalization or other highly-leveraged transactions. As a result, the Issuer or the Guarantors may enter into a transaction even though the transaction could increase the total amount of their outstanding indebtedness, adversely affect their capital structure or credit ratings or otherwise adversely affect the holders of the Notes.

 

Each Guarantor’s Guarantee of the Notes could be voided or subordinated by applicable federal bankruptcy law and insolvency laws in the United States or Canada.

 

The Issuer’s obligations under the Notes will be guaranteed by the Guarantors. In the United States, under federal bankruptcy law and comparable provisions of state fraudulent transfer laws, each Guarantor’s Guarantee could be voided, or claims in respect of such Guarantee could be subordinated to all other debts of such Guarantor if, among other things, such Guarantor, at the time it incurred the indebtedness evidenced by its Guarantee, received less than reasonably equivalent value or fair consideration for the incurrence of such Guarantee; and

 

·

was insolvent or rendered insolvent by reason of such incurrence;

 

·

was engaged in a business or transactions for which its remaining assets constituted unreasonably small capital; or

 

·

intended to incur, or believed that it would incur, debts beyond its ability to pay such debts as they mature.

 

In addition, any payment by a Guarantor pursuant to its Guarantee could be voided and required to be returned to the Guarantor or to a fund for the benefit of the creditors of the Guarantor.

 

As one of the Guarantors, Emera, is organized under the laws of the province of Nova Scotia, Canada and a portion of its assets are located in Canada, applicable Canadian statutes may also allow courts to void the Notes and/or the Guarantees. The Issuer’s creditors or creditors of the Guarantors could challenge the Guarantees as fraudulent transfers, conveyances, preferences, transfers at undervalue or on other grounds under applicable Canadian federal or provincial law. Payments made to the holders of the Notes may be required to be returned or the Guarantees may be avoided or set aside under Canadian federal or provincial legislation if it is judicially determined that, among other things:

 

·

at the time of the payment or of the making of the Guarantee, the payor or Guarantor, as the case may be, was insolvent and the payment or had the effect of or was given with a view to giving a preference to, or conferred a fraudulent or unjust preference on, the recipient or another Guarantor;

 

·

the payment or making of the Guarantee was a transfer at undervalue and at the time of the repayment or the making of the Guarantee the payor or the Guarantor, as the case may be, was insolvent or was rendered insolvent by the payment or the making of the Guarantee;

 

·

the payment or making of the Guarantee was intended to defeat, hinder, delay or defraud creditors; or

 

·

the payment or making of the Guarantee was oppressive to creditors.

 

The measure of insolvency for purposes of these fraudulent transfer laws will vary depending upon the law applied in any proceeding to determine whether a fraudulent transfer has occurred. Generally, however, a guarantor would be considered insolvent if:

 

·

the sum of its debts, including contingent liabilities, was greater than the fair saleable value of all of its assets;

 

·

the present fair saleable value of its assets was less than the amount that would be required to pay its probable liability on its existing debts, including contingent liabilities, as they become absolute and mature; or

 

·

it could not pay its debts as they become due.

 

We cannot be sure as to the standards that a court would use to determine whether or not each Guarantor was solvent at the relevant time, or, regardless of the standard that the court uses, that the issuance of each Guarantee of the Notes would not be voided or each Guarantee of the Notes would not be subordinated to each Guarantor’s other debt.

 

If a Guarantee were legally challenged, such Guarantee could also be subject to the claim that, since the Guarantee was incurred for the Issuer’s benefit, and only indirectly for the benefit of the Guarantor, the obligations of the Guarantor were incurred for less than fair consideration.

 

A court could thus void the obligations under each Guarantee or subordinate each Guarantee to each Guarantor’s other debt or take other action detrimental to holders of the Notes.

 

Canadian bankruptcy and insolvency laws may impair the Trustee’s ability to enforce remedies under the Notes.

 

Emera is a company governed by the laws of the Province of Nova Scotia, Canada, and a portion of its assets are located in Canada. Therefore, Canadian bankruptcy and insolvency laws will apply in the event of Emera’s bankruptcy or insolvency.

 

Canadian bankruptcy, insolvency, winding-up, reorganization and other restructuring or similar corporate arrangement legislation (collectively, “Canadian insolvency laws”), may impair, delay, stay, compromise, or otherwise restrict the rights of the Trustee, as applicable, to enforce remedies under the Indenture governing the Notes or the Guarantees, or the Notes or the Guarantees if the benefit of applicable Canadian insolvency laws is sought with respect to Emera. For example, the Bankruptcy and Insolvency Act (Canada) and the Companies’ Creditors Arrangement Act (Canada), the Winding-Up and Restructuring Act (Canada) and other corporate arrangement legislation each contain provisions enabling a debtor to obtain a stay of proceedings or other rights and remedies in favor of itself and its property against its creditors and others and to prepare and file a restructuring proposal, a plan of arrangement or a plan of compromise or arrangement to be voted on by the various classes of its affected creditors. A restructuring proposal, plan of arrangement or plan of compromise or arrangement, as applicable, if accepted by the requisite majorities of each affected class of creditors, and if approved by the relevant Canadian court and implemented, would be binding on all affected creditors within each affected class, including those affected creditors that did not vote to accept the proposal, plan of arrangement or plan of compromise or arrangement. In addition, the relevant Canadian court may, subject to certain conditions, create court-ordered charges on the assets of the debtor to secure interim financing, professional fees, post-filing amounts owing to critical suppliers, director liabilities or other obligations, in priority to the security interests that secure the Notes and the Guarantees. Moreover, Canadian insolvency laws, in certain instances, permit the debtor (or its court appointed receiver) to retain possession and administration of its property (including property that constitutes collateral), subject to court oversight, even though it may be in default under the applicable debt instrument or security document during the applicable proceedings and notwithstanding the ability of its creditors to enforce their rights upon such default are impaired, delayed, stayed, compromised, or otherwise restricted,. In addition, it may be possible to restructure certain debt obligations, including Guarantees, under the applicable governing federal or provincial corporate statute without commencing formal insolvency proceedings.

 

In this regard, any approval threshold requirements provided in the Indenture governing the Notes for modification of certain rights of the holders of Notes may be disregarded in a restructuring of Emera’s debt under applicable law or the order or decree of a court having jurisdiction. In an insolvency, bankruptcy corporate arrangement in respect of a compromise of the debt of the debtors or similar proceeding, the applicable statute or the court will establish the approval threshold. The approval threshold requirements under the Indenture governing the Notes may also be disregarded in a restructuring by way of a court approved arrangement under a Canadian corporate statute. Stays of proceedings have also been granted in connection with these corporate debt restructurings.

 

 

The powers of the court under Canadian insolvency laws, and particularly the Companies’ Creditors Arrangement Act (Canada), have been interpreted and exercised broadly and remedially so as to preserve the enterprise value of a restructuring entity and protect such entity and its assets from actions taken by creditors and other parties. Accordingly, the Issuer cannot predict whether payments under the Notes or the Guarantees thereof would be made during any bankruptcy, insolvency, corporate arrangement in respect of a compromise of the debt of the debtors or other restructuring proceedings, whether (and to what extent) or when the Trustee could exercise its rights under the Indenture governing the Notes or the Guarantees during any such proceedings, or whether (and to what extent) holders of the Notes would be compensated for any delays in payment of principal, interest and costs, including the fees and disbursements of the Trustee. Accordingly, if Emera were to become subject to any bankruptcy, insolvency, corporate arrangement in respect of a compromise of the debt of the debtors or other restructuring proceedings, Emera may cease making payments on the Guarantees and the Trustee may not be able to exercise its rights under the Indenture governing the Notes and Guarantees, respectively, following commencement of or during such proceedings, without leave of the court.

 

In addition, under Canadian insolvency laws, courts have jurisdiction over a debtor’s property wherever it is located, including property situated in other countries. However, courts outside of Canada may not recognize the Canadian court’s jurisdiction. Accordingly, absent recognition of the Canadian proceeding in the foreign jurisdiction, there may be difficulty administering a Canadian bankruptcy or insolvency proceeding involving the Issuer or the Guarantors in respect of property located outside of Canada, and any orders or judgments of a Canadian court may not be enforceable against the Issuer or the Guarantors with respect to their property located outside Canada.

 

Investors in the Notes located outside of Canada may have difficulties enforcing civil liabilities.

 

Emera is organized under the laws of Nova Scotia, Canada. Moreover, substantially all of our directors and officers, as well as certain of the experts named in this prospectus, are residents of Canada or other jurisdictions outside of the United States, and all or a substantial portion of their assets and a substantial portion of our assets are located outside of the United States. We will agree, in accordance with the terms of the Indenture, to accept service of process in any suit, action or proceeding with respect to the Indenture or the Notes brought in any federal or state court located in New York City by an agent designated for such purpose, and to submit to the jurisdiction of such courts in connection with such suits, actions or proceedings. Nevertheless, it may be difficult for holders of the Notes to effect service of process within the United States upon directors, officers and experts who are not residents of the United States or to realize in the United States upon judgments of courts of the United States predicated upon civil liability under U.S. federal or state securities laws or other laws of the United States. In addition, there is doubt as to the enforceability in Canada against Emera or against Emera’s directors, officers and experts who are not residents of the United States, in original actions or in actions for enforcement of judgments of courts of the United States, of liabilities predicated solely upon U.S. federal or state securities laws.

 

The Issuer’s cash flow is dependent on the operating cash flows of Emera and its other subsidiaries and their ability to pay cash to the Issuer.

 

The Issuer’s cash flow is dependent on the operating cash flows of Emera and its subsidiaries and their ability to pay cash to the Issuer. As a result, distributions or advances from Emera and its subsidiaries are the principal source of funds necessary to meet the debt service obligations of the Issuer. Contractual provisions or laws, as well as Emera’s and its subsidiaries’ financial condition and operating requirements, may limit the ability of the Issuer to obtain cash from Emera and its subsidiaries that it requires to pay its debt service obligations, and may also limit the ability of the Guarantors to meet their obligations under their respective Guarantees, including any payments required to be made under the Notes. In addition, certain of Emera’s businesses are regulated by entities that possess broad oversight powers to ensure that the needs of utility customers are being met. While Emera is not currently aware of any plans to do so, such regulators could attempt to impose restrictions on the ability of Emera or its subsidiaries to pay cash to the Issuer pursuant to these broad powers. Other than EUSHI and the Issuer, the subsidiaries of Emera are legally distinct and have no obligations to pay amounts due on the indebtedness of the Issuer or the Guarantors, or to make funds available for such payment. In addition, nonguarantor subsidiaries of Emera will be permitted under the terms of the Indenture to incur additional indebtedness that may restrict or prohibit the making of distributions, the payment of dividends or the making of loans by such subsidiaries to the Issuer and the Guarantors. The agreements governing current and future indebtedness of Emera’s subsidiaries may not permit such subsidiaries to provide Emera with sufficient dividends, distributions or loans to fund payments on the Notes when due.

 

The Guarantors are holding companies.

 

The Guarantors are holding companies and depend on dividends and other distributions from their subsidiaries.

 

Each of Emera and EUSHI conducts substantially all its operations through subsidiaries, and those subsidiaries generate substantially all of its operating income and cash flow. As a result, distributions or advances from those subsidiaries are the principal source of funds necessary to meet the debt service obligations of the Guarantors. Contractual provisions or laws, as well as the subsidiaries’ financial condition and operating requirements, may limit the ability of the Guarantors to obtain cash from their subsidiaries that they require to pay their debt service obligations, including any payments required to be made under the Notes.

 

An increase in interest rates could result in a decrease in the relative value of the Notes.

 

In general, as market interest rates rise, Notes bearing interest at a fixed rate generally decline in value because the premium, if any, over market interest rates will decline. Consequently, if you purchase Notes and market interest rates increase, the market value of your Notes may decline. We cannot predict future levels of market interest rates.

 

The trading prices for the Notes will be directly affected by many factors, including our credit rating.

 

Credit rating agencies continually revise their ratings for companies they follow or discontinue rating companies, which could include the Issuer. Any ratings downgrade or decisions by a credit rating agency to discontinue rating us could adversely affect the trading price of the Notes, or the trading market for the Notes, to the extent a trading market for the Notes develops. The condition of the financial and credit markets and prevailing interest rates have fluctuated in the past and are likely to fluctuate in the future and any fluctuation may impact the trading price of the Notes.

 

We expect the Notes to be rated by “nationally recognized statistical rating organizations” within the meaning of the Exchange Act. The Notes may in the future be rated by additional rating agencies. We cannot assure you that any rating so assigned will remain for any given period of time or that a rating will not be lowered or withdrawn entirely by a rating agency if, in that rating agency’s judgment, circumstances relating to the basis of the rating, such as adverse changes to our business, so warrant. Any lowering or withdrawal of a rating by a rating agency could reduce the liquidity or market value of the Notes.

 

Rating agencies may change their practices for rating the Notes, which change may affect the market price of the Notes. In addition, the Issuer may redeem the Notes if a rating agency makes certain changes in the equity credit methodology for securities such as the Notes.

 

The rating agencies that currently or may in the future publish a rating for the Issuer, including Moody’s Investors Service, Inc., S&P Global Ratings and Fitch Ratings, Inc., each of which published a rating of the Notes, may, from time to time in the future, change the way they analyze securities with features similar to the Notes. This may include, for example, changes to the relationship between ratings assigned to an issuer’s senior securities and ratings assigned to subordinated securities with features similar to the Notes. If any rating agencies change their practices for rating these types of securities in the future, and the ratings of the Notes are subsequently lowered, the trading price of the Notes could be negatively affected. In addition, the Issuer may redeem the Notes, at its option, in whole but not in part, if a rating agency makes certain changes in the equity credit methodology for securities such as the Notes. See “Description of the New Notes—Redemption—Redemption Following a Rating Agency Event.”

 

Your ability to transfer the Notes may be limited by the absence of a trading market for the Notes.

 

There is no established trading market for the Notes, and we have no plans to list the Notes on a securities exchange. We have been advised by each initial purchaser of the Old Notes that it presently intends to make a market for the Notes; however, no initial purchaser of the Old Notes is obligated to do so. Any market making activity, if initiated, may be discontinued at any time, for any reason, without notice. If the initial purchasers of the Old Notes cease to act as market makers for the Notes for any reason, we cannot assure you that another firm or person will make a market in such Notes. The liquidity of any market for the Notes will depend upon the number of holders of such Notes, our results of operations and financial condition, the market for similar securities, the interest of securities dealers in making a market in the Notes and other factors. An active or liquid trading market may not develop for the Notes.

 

GUARANTEED DEBT

 

As of September 30, 2024, Emera had $2.95 billion USD (as of December 31, 2023 - $2.75 billion USD) unsecured notes outstanding, which include the 3.550% Senior Notes due 2026, the 2.639% Senior Notes due 2031 and the 4.750% Senior Notes due 2046 issued by Emera US Finance LP. Emera Owns, directly or indirectly, all of the limited and general partnership interests in Emera US Finance LP.

 

The Notes are fully and unconditionally guaranteed, on a joint, several and subordinated basis, by Emera and EUSHI (in such capacity, the “Guarantor Subsidiaries”). The Issuer is owned indirectly by Emera through EUSHI.

 

Other subsidiaries of Emera do not guarantee the Notes (such subsidiaries are referred to as the "Non-Guarantor Subsidiaries"); however, Emera has unrestricted access to the assets of consolidated entities.

 

In compliance with Rule 13-01 of Regulation S-X, Emera is including summarized financial information for Emera, EUSHI, and the Issuer (together, the "Obligor Group"), on a combined basis after transactions and balances between the combined entities have been eliminated. Investments in and equity earnings of the Non-Guarantor Subsidiaries have been excluded from the summarized financial information.

 

The Obligor Group was not determined using geographic, service line or other similar criteria and, as a result, the summarized financial information includes portions of Emera’s domestic and international operations. Accordingly, this basis of presentation is not intended to present Emera’s financial condition or results of operations for any purpose other than to comply with the specific requirements for guarantor reporting.

 

Summarized Statement of Income (Loss)

 

For the millions of dollars		Nine months ended September 30, 2024				Year ended December 31, 2023
Loss from operations		$	(253	)		$	(62	)
Net gains (1)		$	257			$	398

 

(1)

Includes $858 million (as of December 31, 2023 - $828 million) in interest and dividend income, net, from non-guarantor subsidiaries.

 

Summarized Balance Sheet

 

As at millions of dollars		September 30, 2024				December 31, 2023
Current assets (1)		$	445			$	274
Goodwill		$	5,498			$	5,871
Other assets (2)		$	2,933			$	2,624
Total assets (3)		$	8,876			$	8,769
Current liabilities (4)		$	966			$	1,258
Long-term liabilities (5)		$	8,650			$	8,346
Total liabilities		$	9,616			$	9,604

 

(1)

Includes $240 million (as of December 31, 2023 - $181 million) in amounts due from Non-Guarantor Subsidiaries.

 

(2)

Includes $2,334 million (as of December 31, 2023 - $2,267 million) in amounts due from Non-Guarantor Subsidiaries.

 

(3)

Excludes investments in Non-Guarantor Subsidiaries. Consolidated Emera total assets are $39,674 million (as of December 31, 2023 - $39,480 million).

 

(4)

Includes $231 million (as of December 31, 2023 - $167 million) due to Non-Guarantor Subsidiaries.

 

(5)

Includes $5,568 million (as of December 31, 2023 - $5,854 million) due to Non-Guarantor Subsidiaries.

 

USE OF PROCEEDS

 

We will not receive any cash proceeds from the issuance of the New Notes pursuant to the exchange offer. In consideration for issuing the New Notes as contemplated in this prospectus, we will receive in exchange a like principal amount of Old Notes, the terms of which are identical in all material respects to the New Notes, except that the New Notes are registered under the Securities Act, are not entitled to the registration rights which are applicable to the Old Notes, and will not provide for any additional interest upon our failure to fulfill our obligations under the registration rights agreement. The Old Notes surrendered in exchange for the New Notes will be retired and canceled and cannot be reissued. Accordingly, issuance of the New Notes will not result in any material change in our capitalization.

 

CONSOLIDATED CAPITALIZATION

 

There have been no material changes in the share and local capital of Emera, on a consolidated basis, since September 30, 2024, and the issuance of the New Notes will not result in any material changes in our capitalization. See “Use of Proceeds.”

 

THE EXCHANGE OFFER

 

Purpose and Effect of the Exchange Offer

 

We and the Guarantors have entered into a registration rights agreement with the initial purchasers of the Old Notes in which we and the Guarantors agreed, under some circumstances, to file a registration statement relating to an offer to exchange the Old Notes for New Notes and to use our reasonable best efforts to consummate the exchange offer within 365 days after the issue date of the Old Notes and to keep the exchange offer open for at least 20 business days (or longer, if required by the federal securities laws). The New Notes will have terms substantially identical to the Old Notes, except that the New Notes will not contain terms with respect to transfer restrictions in the United States, registration rights and additional interest for failure to observe certain obligations in the registration rights agreement. The Old Notes were issued on June 18, 2024.

 

Under the circumstances set below, we will use our reasonable best efforts to cause the SEC to declare effective a shelf registration statement with respect to the resale of the Old Notes within the time periods specified in the registration rights agreement and to keep such shelf registration statement continuously effective until the earlier of (A) the time when all such Old Notes covered by the shelf registration statement can be sold pursuant to Rule 144 without any limitations by non-affiliates of ours under clause (d) of Rule 144, (B) the date on which all such Old Notes are disposed of in accordance with the shelf registration statement, (C) one year after  the effective date of the shelf registration statement, or (D) the Old Notes cease to be registrable securities. These circumstances include:

 

(1) effecting this exchange offer would violate any applicable law or applicable interpretations of the staff of the SEC; or

 

(2) for any other reason we do not consummate the exchange offer within 365 days of the issue date of the Old Notes; or

 

(3) any initial purchaser of the Old Notes shall notify us following consummation of the exchange offer that notes held by it are not eligible to be exchanged for New Notes in the exchange offer.

 

Under the registration rights agreement, in the event that (i) the exchange offer registration has not been consummated or, if required in lieu thereof, such shelf registration statement has not become effective or been declared effective by the SEC within the time periods described above, or (iii) if any exchange offer registration statement or shelf registration statement is filed and declared effective but shall thereafter cease to be effective or usable (except as specifically permitted in the registration rights agreement) (each such event referred to in clauses (i) and (ii), a “Registration Default” and each period during which Registration Default has occurred and is continuing, a “Registration Default Period”), then, additional interest shall accrue in a rate equal to 0.25% per annum for the first 90 days of the Registration Default Period, and such rate will increase by an additional 0.25% 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% per annum. A copy of the registration rights agreement has been filed as an exhibit to the registration statement of which this prospectus is a part.

 

If we fail to comply with certain obligations under the registration rights agreement, we will be required to pay additional interest to holders of the Old Notes.

 

If you wish to exchange your Old Notes for New Notes in the exchange offer, you will be required to make the following written representations:

 

·

you are not our affiliate or an affiliate of any Guarantor within the meaning of Rule 405 of the Securities Act;

·

you have no arrangement or understanding with any person to participate in a distribution (within the meaning of the Securities Act) of the New Notes in violation of the provisions of the Securities Act;

·

you are not engaged in, and do not intend to engage in, a distribution of the New Notes; and

·

you are acquiring the New Notes in the ordinary course of your business.

 

Each broker-dealer that receives New Notes for its own account in exchange for Old Notes, where the broker-dealer acquired the Old Notes as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such New Notes in the United States. See “Plan of Distribution.”

 

 

Resale of New Notes

 

The Issuer has not entered into any arrangement or understanding with any person who will receive New Notes in the exchange offer to distribute those securities following completion of the exchange offer. The Issuer is not aware of any person that will participate in the exchange offer with a view to distribute the New Notes.

 

Based on interpretations by the SEC set forth in no-action letters issued to third parties, we believe that you may resell or otherwise transfer New Notes issued in the exchange offer in the United States without complying with the registration and prospectus delivery provisions of the Securities Act if:

 

·

you are not our affiliate or an affiliate of any Guarantor within the meaning of Rule 405 under the Securities Act;

·

you do not have an arrangement or understanding with any person to participate in a distribution of the New Notes;

·

you are not engaged in, and do not intend to engage in, a distribution of the New Notes; and

·

you are acquiring the New Notes in the ordinary course of your business.

 

We have not sought, and do not intend to seek, a no-action letter from the SEC with respect to the effects of the exchange offer, and we cannot assure you that the SEC would make a similar determination with respect to the New Notes as it has in such no-action letters.

 

If you are our affiliate or are engaging in, or intend to engage in, or have any arrangement or understanding with any person to participate in, a distribution of the New Notes, or are not acquiring the New Notes in the ordinary course of your business:

 

·

you cannot rely on the position of the SEC set forth in Morgan Stanley & Co. Incorporated (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC’s letter to Shearman & Sterling, dated July 2, 1993, or similar no-action letters; and

·

in the absence of an exception from the position stated immediately above, you must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale of the New Notes in the United States.

 

This prospectus may be used for an offer to resell, resale or other transfer of New Notes only as specifically set forth in this prospectus. With regard to broker-dealers, only broker-dealers that acquired the Old Notes as a result of market-making activities or other trading activities may participate in the exchange offer. Each broker-dealer that receives New Notes for its own account in exchange for Old Notes, where such Old Notes were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of the New Notes in the United States. Please read “Plan of Distribution” for more details regarding the transfer of New Notes.

 

Terms of the Exchange Offer

 

On the terms and subject to the conditions set forth in this prospectus and in the letter of transmittal, we will accept for exchange in the exchange offer any Old Notes that are properly tendered and not withdrawn prior to the expiration date. Old Notes may only be tendered in minimum denominations of US$2,000 and integral multiples of US$1,000 in excess of US$2,000. We will issue New Notes in a principal amount identical to Old Notes surrendered in the exchange offer.

 

The form and terms of the New Notes will be substantially identical to the form and terms of the Old Notes except the New Notes will be registered under the Securities Act, will not bear legends restricting their transfer in the United States and will not provide for any additional interest upon our failure to fulfill our obligations under the registration rights agreement to complete the exchange offer, or file, and cause to be effective, a registration statement, if required thereby, within the specified time periods described above. The New Notes will evidence the same continuing debt as is evidenced by the Old Notes and will not constitute new debt. The New Notes will be issued under and entitled to the benefits of the Indenture. Consequently, the Old Notes and the New Notes will be treated as a single class of debt securities under the Indenture. For a description of the Indenture, see “Description of the New Notes.”

 

 

The exchange offer is not conditioned upon any minimum aggregate principal amount of Old Notes being tendered for exchange.

 

As of the date of this prospectus, US$500 million aggregate principal amount of 7.625% Fixed-to-Fixed Reset Rate Junior Subordinated Notes due December 15, 2054 are outstanding. This prospectus and a letter of transmittal are being sent to all registered holders of Old Notes. There will be no fixed record date for determining registered holders of Old Notes entitled to participate in the exchange offer. We intend to conduct the exchange offer in accordance with the provisions of the registration rights agreement, the applicable requirements of the Securities Act, the Exchange Act and other applicable securities laws, and the rules and regulations of the SEC. Old Notes that are not tendered for exchange in the exchange offer will remain outstanding and continue to accrue interest and will be entitled to the rights and benefits the holders have under the indenture relating to the Old Notes and the registration rights agreement, except for any rights under the registration rights agreement that by their terms terminate upon the consummation of the exchange offer.

 

We will be deemed to have accepted for exchange properly tendered Old Notes when we have given written notice of the acceptance to the exchange agent. The exchange agent will act as agent for the tendering holders for the purposes of receiving the New Notes from us and delivering New Notes to holders. Subject to the terms of the registration rights agreement, we expressly reserve the right to amend or terminate the exchange offer and to refuse to accept for exchange any Old Notes not previously accepted for exchange, upon the occurrence of any of the conditions specified below under “— Conditions to the Exchange Offer.”

 

If you tender your Old Notes in the exchange offer, you will not be required to pay brokerage commissions or fees or, subject to the instructions in the letter of transmittal, transfer taxes with respect to the exchange of Old Notes. We will pay all charges and expenses, other than certain applicable taxes described below in connection with the exchange offer. It is important that you read “— Fees and Expenses” below for more details regarding fees and expenses incurred in the exchange offer.

 

Expiration Date, Extensions and Amendments

 

As used in this prospectus, the term “expiration date” means midnight, New York City time, on,  , 2024. However, if we, in our sole discretion, extend the period of time for which the exchange offer is open, the term “expiration date” will mean the latest time and date to which we shall have extended the expiration of the exchange offer.

 

To extend the period of time during which the exchange offer is open, we will notify the exchange agent of any extension by written notice, followed by notification by press release or other public announcement to the registered holders of the Old Notes no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled expiration date.

 

We reserve the right, in our sole discretion:

 

·

to delay accepting for exchange any Old Notes (only in the case that we amend or extend the exchange offer);

·

to extend the exchange offer or to terminate the exchange offer and refuse to accept Old Notes not previously accepted if any of the conditions set forth below under “— Conditions to the Exchange Offer” have not been satisfied, by giving written notice of such delay, extension or termination to the exchange agent; and

·

subject to the terms of the registration rights agreement, to amend the terms of the exchange offer in any manner. In the event of a material change in the exchange offer, including the waiver of a material condition, we will extend the offer period, if necessary, so that at least five business days remain in such offer period following notice of the material change.

 

 

Any delay in acceptance, extension, termination or amendment will be followed as promptly as practicable by written notice to the registered holders of the Old Notes. If we amend the exchange offer in a manner that we determine to constitute a material change, we will promptly disclose the amendment in a manner reasonably calculated to inform the holders of the Old Notes of that amendment.

 

Without limiting the manner in which we may choose to make public announcements of any delay in acceptance, extension, termination or amendment of the exchange offer, we will have no obligation to publish, advertise, or otherwise communicate any public announcement, other than by making a timely release to a financial news service.

 

Conditions to the Exchange Offer

 

Despite any other term of the exchange offer, we will not be required to accept for exchange, or to issue New Notes in exchange for, any Old Notes and we may terminate or amend the exchange offer as provided in this prospectus prior to the expiration date if in our reasonable judgment:

 

·

the exchange offer or the making of any exchange by a holder violates any applicable law or interpretation of the SEC;

·

any action or proceeding has been instituted or threatened in writing in any court or by or before any governmental agency with respect to the exchange offer that, in our judgment, would reasonably be expected to impair our ability to proceed with the exchange offer or to realize the anticipated benefits of the exchange offer;

·

there shall have occurred: (a) any general suspension of or limitation on trading in securities in Canadian or United States securities or financial markets, whether or not mandatory, (b) any material adverse change in the prices of the Old Notes that are the subject of the exchange offer, (c) a material impairment in the general trading market for debt securities, (d) a declaration of a banking moratorium or any suspension of payments in respect of banks by federal or state authorities in Canada or the United States, whether or not mandatory, (e) a commencement of a war, armed hostilities, a terrorist act or other national or international calamity directly or indirectly relating to Canada or the United States, (f) any limitation, whether or not mandatory, by any governmental authority on, or other event having a reasonable likelihood of affecting, the extension of credit by banks or other lending institutions in Canada or the United States, (g) any material adverse change in the securities or financial markets in Canada or the United States generally or (h) in the case of any of the foregoing existing at the time of the commencement of the exchange offer, a material acceleration or worsening thereof; or

·

the Trustee with respect to the Indenture shall have been directed by any holders of Old Notes to object in any respect to, or take any action that could adversely affect the consummation of the exchange offer or the exchange of Old Notes for New Notes under the exchange offer, or the Trustee shall have taken any action that challenges the validity or effectiveness of the procedures used by us in making the exchange offer or the exchange of Old Notes for New Notes under the exchange offer.

 

In addition, we will not be obligated to accept for exchange the Old Notes of any holder that has not made to us:

 

·

the representations described under “— Purpose and Effect of the Exchange Offer,” “— Procedures for Tendering Old Notes” and “Plan of Distribution”; or

·

any other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to make available to us an appropriate form for registration of the New Notes under the Securities Act.

 

We expressly reserve the right at any time or at various times to extend the period of time during which the exchange offer is open. Consequently, we may delay acceptance of any Old Notes by giving written notice of such extension to their holders. We will return any Old Notes that we do not accept for exchange for any reason without expense to their tendering holder promptly after the expiration or termination of the exchange offer.

 

We expressly reserve the right to amend or terminate the exchange offer and to reject for exchange any Old Notes not previously accepted for exchange, upon the occurrence of any of the conditions of the exchange offer specified above. We will give written notice of any extension, amendment, non-acceptance or termination to the exchange agent and holders of the Old Notes as promptly as practicable. In the case of any extension, such notice will be issued no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled expiration date.

 

These conditions are for our sole benefit, and we may assert them regardless of the circumstances that may give rise to them or waive them in whole or in part at any or at various times prior to the expiration date in our sole discretion. If we fail at any time to exercise any of the foregoing rights, this failure will not constitute a waiver of such rights. Each such right will be deemed an ongoing right that we may assert at any time or at various times prior to the expiration date.

 

In addition, we will not accept for exchange any Old Notes tendered, and will not issue New Notes in exchange for any such Old Notes, if at such time any stop order is threatened or in effect with respect to the registration statement of which this prospectus constitutes a part or the qualification of the Indenture under the Trust Indenture Act of 1939, as amended.

 

Interest on the New Notes

 

The New Notes will bear interest (i) from and including the original issue date to but excluding the First Reset Date, at the rate of 7.625% per annum and (ii) from and including the First Reset Date, during each Reset Period, at a rate per annum equal to the Five-year U.S. Treasury Rate as of the most recent Reset Interest Determination Date plus a spread of 3.136%, to be reset on each Reset Date. On the first interest payment date following the exchange, holders of New Notes will receive interest for the period from and including the last interest payment date on which interest was paid on the Old Notes; provided that holders of Old Notes who become holders on or after the record date for an interest payment date and who participate in the exchange will receive interest from and including such interest payment date. Interest on the New Notes will be payable semi-annually in arrears on June 15 and December 15 of each year, commencing on December 15, 2024, and on the maturity date.

 

Procedures for Tendering Old Notes

 

To tender your Old Notes in the exchange offer, you must comply with either of the following:

 

·

complete, sign and date the letter of transmittal and have the signature(s) on the letter of transmittal guaranteed if required by the letter of transmittal and mail or deliver such letter of transmittal (or a copy thereof if the letter of transmittal does not require a signature guarantee), to the exchange agent at the address set forth below under “— Exchange Agent” prior to the expiration date; or

·

comply with DTC’s Automated Tender Offer Program procedures described below.

 

In addition, either:

 

·

the exchange agent must receive certificates for the Old Notes along with the letter of transmittal prior to the expiration date;

·

the exchange agent must receive a timely confirmation of book-entry transfer of the Old Notes into the exchange agent’s account at DTC according to the procedures for book-entry transfer described below and a properly transmitted agent’s message prior to the expiration date; or

·

you must comply with the guaranteed delivery procedures described below.

 

Your tender, if not withdrawn prior to the expiration date, constitutes an agreement between us and you upon the terms and subject to the conditions described in this prospectus and in the letter of transmittal.

 

The method of delivery of Old Notes, letter of transmittal and all other required documents to the exchange agent is at your election and risk. We recommend that instead of delivery by mail, you use an overnight or hand delivery service, properly insured. In all cases, you should allow sufficient time to assure timely delivery to the exchange agent before the expiration date. You should not send letters of transmittal or certificates representing Old Notes to us. You may request that your broker, dealer, commercial bank, trust company or nominee effect the above transactions for you.

 

 

If you are a beneficial owner whose Old Notes are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and you wish to tender your Old Notes, you should promptly contact the registered holder and instruct the registered holder to tender on your behalf. If you wish to tender the Old Notes yourself, you must, prior to completing and executing the letter of transmittal and delivering your Old Notes, either:

 

·

make appropriate arrangements to register ownership of the Old Notes in your name; or

·

obtain a properly completed bond power from the registered holder of Old Notes.

 

The transfer of registered ownership may take considerable time and may not be able to be completed prior to the expiration date. Signatures on the letter of transmittal or a notice of withdrawal, as the case may be, must be guaranteed by a member firm of a registered national securities exchange or of the Financial Industry Regulatory Authority, Inc., a commercial bank or trust company having an office or correspondent in the United States or another “eligible guarantor institution” within the meaning of Rule 17A(d)-15 under the Exchange Act unless the Old Notes surrendered for exchange are tendered:

 

·

by a registered holder of the Old Notes who has not completed the box entitled “Special Registration Instructions” or “Special Delivery Instructions” on the letter of transmittal; or

·

for the account of an eligible guarantor institution.

 

If the letter of transmittal is signed by a person other than the registered holder of any Old Notes listed on the Old Notes, such Old Notes must be endorsed or accompanied by a properly completed bond power. The bond power must be signed by the registered holder as the registered holder’s name appears on the Old Notes, and an eligible guarantor institution must guarantee the signature on the bond power.

 

If the letter of transmittal, any certificates representing Old Notes or bond powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, those persons should also indicate when signing and, unless waived by us, they should also submit evidence satisfactory to us of their authority to so act.

 

The exchange agent and DTC have confirmed that any financial institution that is a participant in DTC’s system may use DTC’s Automated Tender Offer Program to tender Old Notes. Participants in the program may, instead of physically completing and signing the letter of transmittal and delivering it to the exchange agent, electronically transmit their acceptance of the exchange by causing DTC to transfer the Old Notes to the exchange agent in accordance with DTC’s Automated Tender Offer Program procedures for transfer. DTC will then send an agent’s message to the exchange agent. The term “agent’s message” means a message transmitted by DTC, received by the exchange agent and forming part of the book-entry confirmation, which states that:

 

·

DTC has received an express acknowledgment from a participant in its Automated Tender Offer Program that is tendering Old Notes that are the subject of the book-entry confirmation;

·

the participant has received and agrees to be bound by the terms of the letter of transmittal, or in the case of an agent’s message relating to guaranteed delivery, that such participant has received and agrees to be bound by the notice of guaranteed delivery; and

·

we may enforce that agreement against such participant.

 

DTC is referred to herein as a “book-entry transfer facility.”

 

Acceptance of New Notes

 

Upon satisfaction or waiver of all of the conditions to the exchange offer, see “—Conditions to the Exchange Offer,” we will promptly issue New Notes for Old Notes that we have accepted for exchange under the exchange offer only after the exchange agent timely receives:

 

·

Old Notes or a timely book-entry confirmation of such Old Notes into the exchange agent’s account at the book-entry transfer facility; and

·

a properly completed and duly executed letter of transmittal and all other required documents or a properly transmitted agent’s message.

 

By tendering Old Notes pursuant to the exchange offer, you will represent to us that, among other things:

 

·

you are not our affiliate or an affiliate of any guarantor within the meaning of Rule 405 under the Securities Act;

·

you do not have an arrangement or understanding with any person or entity to participate in a distribution of the New Notes; and

·

you are acquiring the New Notes in the ordinary course of your business.

 

In addition, each broker-dealer that is to receive New Notes for its own account in exchange for Old Notes must represent that such Old Notes were acquired by that broker-dealer as a result of market-making activities or other trading activities and must acknowledge that it will deliver a prospectus that meets the requirements of the Securities Act in connection with any resale of the New Notes in the United States. The letter of transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. See “Plan of Distribution.”

 

We will interpret the terms and conditions of the exchange offer, including the letter of transmittal and the instructions to the letter of transmittal, and will resolve all questions as to the validity, form, eligibility, including time of receipt, acceptance and withdrawal of Old Notes tendered for exchange. Our determinations in this regard will be final and binding on all parties. We reserve the absolute right to reject any and all tenders of any particular Old Notes not properly tendered or to not accept any particular Old Notes if the acceptance might, in our or our counsel’s judgment, be unlawful. We also reserve the absolute right to waive any defects or irregularities as to any particular Old Notes prior to the expiration date.

 

Unless waived, any defects or irregularities in connection with tenders of Old Notes for exchange must be cured within such reasonable period of time as we determine. Neither we, the exchange agent nor any other person will be under any duty to give notification of any defect or irregularity with respect to any tender of Old Notes for exchange, nor will any of them incur any liability for any failure to give notification. Any Old Notes received by the exchange agent that are not properly tendered and as to which the irregularities have not been cured or waived will be returned by the exchange agent to the tendering holder, unless otherwise provided in the letter of transmittal, promptly after the expiration date.

 

Book-Entry Delivery Procedures

 

Promptly after the date of this prospectus, the exchange agent will establish an account with respect to the Old Notes at DTC, as the book-entry transfer facility, for purposes of the exchange offer. Any financial institution that is a participant in the book-entry transfer facility’s system may make book-entry delivery of the Old Notes by causing the book-entry transfer facility to transfer those Old Notes into the exchange agent’s account at the facility in accordance with the facility’s procedures for such transfer. To be timely, book-entry delivery of Old Notes requires receipt of a confirmation of a book-entry transfer, a “book-entry confirmation,” and an agent’s message prior to the expiration date, or the guaranteed delivery procedure described below must be complied with. Book-entry tenders will not be deemed made until the book-entry confirmation and agent’s message are received by the exchange agent. Delivery of documents to the book-entry transfer facility does not constitute delivery to the exchange agent.

 

Holders of Old Notes who are unable to deliver confirmation of the book-entry tender of their Old Notes into the exchange agent’s account at the book-entry transfer facility or all other documents required by the letter of transmittal to the exchange agent on or prior to the expiration date may tender their Old Notes according to the guaranteed delivery procedures described below.

 

Guaranteed Delivery Procedures

 

If you wish to tender your Old Notes but your Old Notes are not immediately available or you cannot deliver your Old Notes, the letter of transmittal or any other required documents to the exchange agent or comply with the procedures under DTC’s Automatic Tender Offer Program in the case of Old Notes, prior to the expiration date, you may still tender if:

 

 

·

you are acquiring the New Notes in the ordinary course of your business.

·

the tender is made through an eligible guarantor institution;

·

prior to the expiration date, the exchange agent receives from such eligible guarantor institution either a properly completed and duly executed notice of guaranteed delivery, by facsimile transmission (if the notice of guaranteed delivery does not require a signature guarantee), mail, or hand delivery or a properly transmitted agent’s message, that (1) sets forth your name and address, the certificate number(s) of such Old Notes and the principal amount of Old Notes tendered; (2) states that the tender is being made thereby; and (3) guarantees that, within three New York Stock Exchange trading days after the expiration date, the letter of transmittal, or copy thereof, together with the Old Notes, and any other documents required by the letter of transmittal, or a book-entry confirmation and an agent’s message will be deposited by the eligible guarantor institution with the exchange agent; and

·

the exchange agent receives the properly completed and executed letter of transmittal or copy (if the letter of transmittal does not require a signature guarantee) thereof and all other documents required by the letter of transmittal, as well as certificate(s) representing all tendered Old Notes in proper form for transfer or a book-entry confirmation of transfer of the Old Notes into the exchange agent’s account at DTC and agent’s message within three New York Stock Exchange trading days after the expiration date.

 

Upon request, the exchange agent will send to you a notice of guaranteed delivery if you hold Certificated Notes (as defined below) and you wish to tender your Old Notes according to the guaranteed delivery procedures.

 

Withdrawal Rights

 

Except as otherwise provided in this prospectus, you may withdraw your tender of Old Notes at any time prior to midnight, New York City time, on the expiration date.

 

For a withdrawal to be effective:

 

·

the exchange agent must receive a written notice of withdrawal at its address set forth below under “— Exchange Agent”, such notice of withdrawal may be delivered by mail or hand delivery or by facsimile transmission (if no medallion guarantee of signatures is required); or

·

you must comply with the appropriate procedures of DTC’s Automated Tender Offer Program system.

 

Any notice of withdrawal must:

 

·

specify the name of the person who tendered the Old Notes to be withdrawn;

·

identify the Old Notes to be withdrawn, including the certificate numbers and principal amount of the Old Notes;

·

in the case of Old Notes tendered by book-entry transfer, specify the number of the account at the book-entry transfer facility from which the Old Notes were tendered and specify the name and number of the account at the book-entry transfer facility to be credited with the withdrawn Old Notes and otherwise comply with the procedures of such facility;

·

contain a statement that such holder is withdrawing its election to have such Old Notes exchanged;

·

be signed by the holder in the same manner as the original signature on the letter of transmittal by which such Old Notes were tendered, including any required signature guarantees, or be accompanied by documents of transfer to have the trustees with respect to the Old Notes in the name of the person withdrawing the tender; and

·

specify the name in which such Old Notes are registered, if different from the person who tendered such Old Notes.

 

If certificates for Old Notes have been delivered or otherwise identified to the exchange agent, then, prior to the release of such certificates, you must also submit the serial numbers of the particular certificates to be withdrawn and the signatures in the notice of withdrawal must be guaranteed by an eligible institution unless you are an eligible guarantor institution.

 

 

If Old Notes have been tendered pursuant to the procedures for book-entry transfer described above, any notice of withdrawal must specify the name and number of the account at the book-entry transfer facility to be credited with the withdrawn Old Notes and otherwise comply with the procedures of the facility. We will determine all questions as to the validity, form and eligibility, including time of receipt of notices of withdrawal, and our determination will be final and binding on all parties. Any Old Notes so withdrawn will be deemed not to have been validly tendered for exchange for purposes of the exchange offer. Any Old Notes that have been tendered for exchange but that are not exchanged for any reason will be returned to their holder, without cost to the holder, or, in the case of book-entry transfer, the Old Notes will be credited to an account at the book-entry transfer facility, promptly after withdrawal, rejection of tender or termination of the exchange offer. Properly withdrawn Old Notes may be retendered by following the procedures described under “— Procedures for Tendering Old Notes” above at any time on or prior to the expiration date.

 

Exchange Agent

 

D.F. King & Co., Inc. has been appointed as the exchange agent for the exchange offer. You should direct all executed letters of transmittal and any notices of guaranteed delivery and all questions and requests for assistance, requests for additional copies of this prospectus or of the letter of transmittal and requests for notices of guaranteed delivery to the exchange agent addressed as follows:

 

D.F. King & Co., Inc.

48 Wall Street, 22^nd Floor

New York, New York 10005

Banks and Brokers Call Collect: (212) 269-5550

All Others Call Toll-Free: (800) 578-5378

Email: EMA@dfking.com

 

If you deliver the letter of transmittal or the notice of guaranteed delivery to an address other than the one set forth above or transmit instructions via facsimile (if the letter of transmittal or the notice of guaranteed delivery does not require a signature guarantee) to a number other than the one set forth above, that delivery or those instructions will not be effective.

 

Fees and Expenses

 

The registration rights agreement provides that we will bear all expenses in connection with the performance of our obligations relating to the registration of the New Notes and the conduct of the exchange offer. These expenses include registration and filing fees, accounting and legal fees and printing costs, among others. We will pay the exchange agent reasonable and customary fees for its services and reasonable out-of-pocket expenses as well as the reasonable fees and expenses of its counsel. We will also reimburse brokerage houses and other custodians, nominees and fiduciaries for customary mailing and handling expenses incurred by them in forwarding this prospectus and related documents to their clients that are holders of Old Notes and for handling or tendering for such clients.

 

We have not retained any dealer-manager in connection with the exchange offer and will not pay any fee or commission to any broker, dealer, nominee or other person, other than the exchange agent, for soliciting tenders of Old Notes pursuant to the exchange offer.

 

Accounting Treatment

 

We will record the New Notes in our accounting records at the same carrying value as the Old Notes, which is the aggregate principal amount as reflected in our accounting records on the date of exchange. Accordingly, we will not recognize any gain or loss for accounting purposes upon the consummation of the exchange offer. We will record the expenses of the exchange offer as incurred.

 

Transfer Taxes

 

We will pay all transfer taxes, if any, applicable to the exchange of Old Notes under the exchange offer. The tendering holder, however, will be required to pay any transfer taxes, whether imposed on the registered holder or any other person, if:

 

·

certificates representing Old Notes for principal amounts not tendered or accepted for exchange are to be delivered to, or are to be issued in the name of, any person other than the registered holder of Old Notes tendered;

·

tendered Old Notes are registered in the name of any person other than the person signing the letter of transmittal; or

·

a transfer tax is imposed for any reason other than the exchange of Old Notes under the exchange offer.

 

If satisfactory evidence of payment of such taxes is not submitted with the letter of transmittal, the amount of such transfer taxes will be billed to that tendering holder.

 

In addition, holders who instruct us to register New Notes in the name of a person other than the registered tendering holder of Old Notes tendered will be required to pay any applicable transfer tax.

 

Consequences of Failure to Exchange

 

If you do not exchange your Old Notes for New Notes under the exchange offer, your Old Notes will remain subject to the restrictions on transfer of such Old Notes:

 

·

as set forth in the legend(s) included on the Old Notes as a consequence of the issuance of the Old Notes pursuant to the exemption from, or in transactions not subject to, the registration requirements of the Securities Act and/or applicable state and other securities laws; and

·

as otherwise set forth in the offering circular distributed in connection with the private offering.

 

In general, you may not offer or sell your Old Notes in the United States unless they are registered under the Securities Act or if the offer or sale is exempt from registration under the Securities Act and applicable state securities laws. Except as required by the registration rights agreement, we do not intend to register resales of the Old Notes under the Securities Act.

 

Other

 

Participating in the exchange offer is voluntary, and you should carefully consider whether to accept. You are urged to consult your financial and tax advisors in making your own decision on what action to take.

 

In addition, we reserve the right, in our sole discretion, subject to the provisions of the Indenture:

 

·

to purchase or make offers for any Old Notes that remain outstanding subsequent to the expiration date or, as described under “— Conditions to the Exchange Offer,” to terminate the exchange offer,

·

to redeem Old Notes as a whole, or in part, at any time and from time to time, as described under “Description of the New Notes—Optional Redemption,” and

·

to the extent permitted under applicable law, to purchase Old Notes in the open market, in privately negotiated transactions or otherwise.

 

The terms of any such purchases or offers could differ from the terms of the exchange offer.

 

We have no present plans to acquire any Old Notes that are not tendered in the exchange offer or to file a registration statement to permit resales of any untendered Old Notes.

 

DESCRIPTION OF THE NEW NOTES

 

As used below, the terms (i) “we,” “our,” and “us” refer to Emera Incorporated, EUSHI Finance, Inc., Emera US Holdings Inc., and, if the context requires, Emera Incorporated’s subsidiaries, (ii) “Emera” refers to Emera Incorporated and, if the context requires, its subsidiaries, (iii) the “Issuer” refers to EUSHI Finance, Inc., (iv) the “Guarantors” refers collectively to Emera Incorporated and Emera US Holdings Inc., and (v) “EUSHI” refers to Emera US Holdings Inc.

 

We are offering to exchange new US$500,000,000 7.625% Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2054 (the “New Notes”), which have been registered under the Securities Act of 1933, as amended (the “Securities Act”) for our currently outstanding US$500,000,000 7.625% Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2054 (the “Old Notes”). We refer to the Old Notes and the New Notes together as the “Notes.”

 

The Old Notes were issued, and the New Notes will be issued, under an indenture dated as of June 18, 2024, as previously amended and supplemented on June 18, 2024, and as to be amended and supplemented by one or more supplemental indentures (collectively, the “Indenture”), among us, the Guarantors and Equinity Trust Company, LLC, as trustee (the “Trustee”). The Notes will be fully and unconditionally guaranteed, on a joint, several and subordinated basis, by the Guarantors (the “Guarantees”). The Indenture is subject to and governed by the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). The terms of the Notes will include those expressly set forth in the Indenture and, upon registration of the New Notes, those made part of the Indenture by reference to the Trust Indenture Act.

 

This description of the Notes is intended to be a useful overview of the material provisions of the Notes, the Guarantees and the Indenture. Since this description is only a summary, you should refer to the Indenture, a copy of which is available from us upon request, for a complete description of the obligations of the Issuer and the Guarantors and your rights. We urge you to read the Indenture carefully because it, and not the following description, will govern your rights as a holder of the Notes.

 

Maturity, Interest and Payment

 

The Issuer issued the Old Notes initially with a maximum aggregate principal amount of $500 million, and will issue the New Notes in such amounts as are tendered for exchange pursuant to this prospectus. The Notes will mature on December 15, 2054, subject to earlier redemption at the Issuer’s option as described under “—Redemption.”

 

The Notes will bear interest (i) from and including June 18, 2024 (the “original issue date”) to but excluding December 15, 2029 (the “First Reset Date”), at the rate of 7.625% per annum and (ii) from and including the First Reset Date, during each Reset Period (as defined below) at a rate per annum equal to the Five-year U.S. Treasury Rate (as defined below) as of the most recent Reset Interest Determination Date (as defined below) plus a spread of 3.136%, to be reset on each Reset Date (as defined below). Interest on the Notes will accrue from the original issue date and will be payable semi-annually in arrears on June 15 and December 15 (each, an “interest payment date”) of each year until maturity or earlier redemption, beginning on December 15, 2024, to the holders of record at the close of business on the record date for the applicable interest payment date, which will be (i) the business day immediately preceding such interest payment date so long as all of the Notes remain in book-entry only form or (ii) the 15th calendar day preceding such interest payment (whether or not a business day) if any of the Notes do not remain in book-entry only form (each, a “record date”), subject to our right to defer interest payments as described below under “—Option to Defer Interest Payments.” Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months.

 

The applicable interest rate for each Reset Period will be determined by the calculation agent (as defined below), as of the applicable Reset Interest Determination Date, in accordance with the following provisions:

 

 

“Five-year U.S. Treasury Rate” means, as of any Reset Interest Determination Date, (i) an interest rate (expressed as a decimal) determined to be the per annum rate equal to the arithmetic mean of the yields to maturity for U.S. Treasury securities adjusted to constant maturity with a maturity of five years from the next Reset Date and trading in the public securities markets, for the five consecutive business days immediately prior to the respective Reset Interest Determination Date as published (or, if fewer than five consecutive business days are so published on the applicable Reset Interest Determination Date, for such number of business days published) in the most recent H.15, or (ii) if there is no such published U.S. Treasury security with a maturity of five years from the next Reset Date and trading in the public securities markets, then the rate will be determined by interpolation between the arithmetic mean of the yields to maturity for each of the two series of U.S. Treasury securities adjusted to constant maturity trading in the public securities markets, (A) one maturing as close as possible to, but earlier than, the Reset Date following the next succeeding Reset Interest Determination Date, and (B) the other maturing as close as possible to, but later than, the Reset Date following the next succeeding Reset Interest Determination Date, in each case for the five consecutive business days immediately prior to the respective Reset Interest Determination Date as published in the most recent H.15. If the Five-year U.S. Treasury Rate cannot be determined pursuant to the methods described in clause (i) or (ii) above, then the Five-year U.S. Treasury Rate will be the same interest rate determined for the prior Reset Interest Determination Date or, if the Five-year U.S. Treasury Rate cannot be so determined as of the Reset Interest Determination Date preceding the First Reset Date, then the interest rate applicable for the Reset Period beginning on and including the First Reset Date will be deemed to be 7.625% per annum, which is the same interest rate as in effect from and including the original issue date to but excluding the First Reset Date.

 

“H.15” means the statistical release designated as such, or any successor publication, published by the Board of Governors of the U.S. Federal Reserve System (or any successor thereto).

 

The “most recent H.15” means the H.15 published closest in time but prior to the close of business on the second business day prior to the applicable Reset Date.

 

“Reset Date” means the First Reset Date and December 15 of every fifth year after 2029.

 

“Reset Interest Determination Date” means, in respect of any Reset Period, the day falling two business days prior to the first day of such Reset Period.

 

“Reset Period” means the period from and including the First Reset Date to but excluding the next following Reset Date and thereafter each period from and including a Reset Date to but excluding the next following Reset Date, or the maturity date or date of redemption or repayment, as the case may be.

 

As used under this caption “Description of the New Notes,” the term “business day” means, unless otherwise expressly stated, any day other than (i) a Saturday or Sunday or (ii) a day on which banks and trust companies in The City of New York are authorized or obligated by law, regulation or executive order to remain closed.

 

The term “calculation agent” means, at any time, the entity appointed by the Issuer and serving as such agent with respect to the Notes at such time. Unless the Issuer has validly called all of the outstanding Notes for redemption on a redemption date occurring prior to the First Reset Date, the Issuer will appoint a calculation agent for the Notes prior to the Reset Interest Determination Date immediately preceding the First Reset Date; provided that, if the Issuer has called all of the outstanding Notes for redemption on a redemption date occurring prior to the First Reset Date but the Issuer does not redeem all of the outstanding Notes on such redemption date, the Issuer will appoint a calculation agent for the Notes as promptly as practicable after such proposed redemption date. The Issuer may terminate any such appointment and may appoint a successor calculation agent at any time and from time to time (so long as there shall always be a calculation agent in respect of the Notes when so required). The Issuer may appoint Emera or an affiliate of Emera as calculation agent.

 

As provided above, the applicable interest rate for each Reset Period will be determined by the calculation agent as of the applicable Reset Interest Determination Date. Promptly upon such determination, the calculation agent will notify us of the interest rate for the Reset Period and the Issuer will promptly notify, or cause the calculation agent to promptly notify, the Trustee and each paying agent of such interest rate. The calculation agent’s determination of any interest rate, and its calculation of the amount of interest for any Interest Payment Period (as defined below under “—Option to Defer Interest Payments”) beginning on or after the First Reset Date, will be on file at the Issuer’s principal offices, will be made available to any holder or beneficial owner of the Notes upon request and will be final and binding in the absence of manifest error.

 

If an interest payment date, redemption date, or maturity date falls on a day that is not a business day, payment will be made on the next succeeding business day with the same force and effect as if made on such payment date.

 

No Listing

 

The Notes are a new issue of securities with no established trading market. The Issuer does not intend to apply for the listing or trading of the Notes on any securities exchange or trading facility or for inclusion of the Notes in any automated quotation system.

 

Agreement by Holders to Tax Treatment

 

Each holder (and beneficial owner) of the Notes will, by accepting any Notes (or a beneficial interest therein), be deemed to have agreed to treat the Notes as indebtedness and interest thereon as U.S. source, and will treat the Notes and interest accordingly, for U.S. federal, state and local tax purposes.

 

Guarantees

 

Each Guarantor will fully and unconditionally guarantee, on a joint, several and subordinated basis, the due and punctual payment of the principal of, premium, if any, and interest on the Notes and any other obligations of the Issuer under the Notes when and as they become due and payable, whether at stated maturity, upon redemption (including with respect to a Tax Event or a Rating Agency Event), by acceleration or otherwise if the Issuer is unable to satisfy these obligations.

 

Emera is a holding company and conducts substantially all of its business through its direct and indirect operating subsidiaries. EUSHI, a direct and indirect wholly owned subsidiary of Emera, serves as a holding company for Emera’s current assets located in the United States. The principal sources of income of Emera and EUSHI are the dividends and distributions they receive from their subsidiaries.

 

The Guarantees will be the joint, several and subordinated obligations exclusively of Emera and EUSHI and will rank junior and subordinated in right of payment to the prior payment in full of the Guarantor’s Senior Indebtedness. Furthermore, none of Emera’s direct and indirect subsidiaries (other than EUSHI) will guarantee or otherwise be responsible for the payment of principal of, any premium or interest or other payments required to be made by the Guarantors under the Guarantees. Accordingly, obligations of the Guarantors under the Guarantees will be structurally subordinated to all existing and future indebtedness and other liabilities (including trade payables) of Emera’s direct and indirect subsidiaries (other than EUSHI). See “Subordination” below.

 

The Indenture provides that upon a default in payment of principal or any premium or interest on a Note, the holder of the Notes may institute legal proceedings directly against the Guarantors to enforce the Guarantees without first proceeding against the Issuer. The obligations of each Guarantor under the Guarantees will be limited as necessary to prevent such Guarantees from constituting a fraudulent conveyance or fraudulent transfer under applicable law.

 

Subordination

 

The payment of the principal of, premium, if any, and interest on the Notes and the payment of the Guarantees will:

 

·

be subordinate and rank junior in right of payment to all existing and future Senior Indebtedness (as defined below);

·

rank equally in right of payment with all existing and future unsecured and subordinated indebtedness that each of the Issuer and the Guarantors may incur from time to time if the terms of such indebtedness provide that it ranks equally with the Notes and Guarantees in right of payment;

·

be effectively subordinated to all existing and future secured indebtedness of the Issuer or the Guarantors, to the extent of the value of the assets securing such indebtedness; and

·

be structurally subordinated in right of payment to all existing and future indebtedness and other liabilities (including trade payables) of Emera’s direct and indirect subsidiaries (other than EUSHI and the Issuer).

 

The Notes and the Guarantees will be subordinated in right of payment to the prior payment in full of all Senior Indebtedness. This means that upon:

 

(a)

any payment by, or distribution of the assets of, the Issuer or the Guarantors upon their dissolution, winding-up, liquidation or reorganization, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings; or

 

(b)

a failure to pay any interest, principal or other monetary amounts due on any of the Issuer’s and the Guarantors’ Senior Indebtedness when due and continuance of that default beyond any applicable grace period; or

 

(c)

acceleration of the maturity of any Senior Indebtedness as a result of a default;

 

the holders of the Senior Indebtedness will be entitled to receive:

 

·

in the case of clause (a) above, payment of all amounts due or to become due on all Senior Indebtedness; or

·

in the case of clauses (b) and (c) above, payment of all amounts due on all Senior Indebtedness, before the holders of the Notes are entitled to receive any payment. So long as any of the events in clauses (a), (b), or (c) above has occurred and is continuing, any amounts payable or assets distributable on the Notes will instead be paid or distributed, as the case may be, directly to the holders of Senior Indebtedness to the extent necessary to pay, in the case of clause (a) above, all amounts due or to become due upon all such Senior Indebtedness, or, in the case of clauses (b) and (c) above, all amounts due on all such Senior Indebtedness, and, if any such payment or distribution is received by the Trustee under the Indenture or the holders of any of the Notes before all Senior Indebtedness due and to become due or due, as applicable, is paid, such payment or distribution must be paid over to the holders of the unpaid Senior Indebtedness. Subject to paying the Senior Indebtedness due and to become due in the case of clause (a) or the Senior Indebtedness due in the case of clauses (b) and (c), the holders of the Notes will be subrogated to the rights of the holders of the Senior Indebtedness to receive payments applicable to the Senior Indebtedness until the Notes are paid in full.

 

“Senior Indebtedness” means, with respect to the Notes and the Guarantees, (i) indebtedness of the Issuer or the Guarantors, whether outstanding at the date of the Indenture or incurred, created or assumed after such date, (a) in respect of money borrowed by the Issuer or the Guarantors (including any financial derivative, hedging or futures contract or similar instrument, to the extent any such item is primarily a financing transaction) and (b) evidenced by debentures, bonds, notes, credit or loan agreements or other similar instruments or agreements issued or entered into by the Issuer or the Guarantors; (ii) all finance lease obligations of the Issuer or the Guarantors; (iii) all obligations of the Issuer or the Guarantors issued or assumed as the deferred purchase price of property, all conditional sale obligations of the Issuer or the Guarantors and all obligations of the Issuer or the Guarantors under any title retention agreement (but excluding, for the avoidance of doubt, trade accounts payable arising in the ordinary course of business and long-term purchase obligations); (iv) all obligations of the Issuer or the Guarantors for the reimbursement of any letter of credit, banker’s acceptance, security purchase facility or similar credit transaction; and (v) all obligations of the type referred to in clauses (i) through (iv) above of other persons for the payment of which the Issuer or the Guarantors are responsible or liable as obligor, guarantor or otherwise, except for any obligations, instruments or agreements of the type referred to in any of clauses (i) through (v) above that, by the terms of the instruments or agreements creating or evidencing the same or pursuant to which the same is outstanding, are subordinated or equal in right of payment to each of the Notes and the Guarantees. As of March 31, 2024, the Issuer and the Guarantors had approximately Cdn$19,976 million of indebtedness, none of which was secured, and Cdn$1,626 million of which was subordinated. As of March 31, 2024 Emera’s subsidiaries (other than EUSHI and the Issuer) had approximately Cdn$16,532 million in indebtedness. See “Description of Other Indebtedness.”

 

In the event of an insolvency, liquidation or other reorganization of any of Emera’s subsidiaries (other than EUSHI and the Issuer), the creditors of such subsidiaries would generally be entitled to payment in full from such assets before any assets are made available for distribution to the Guarantors.

 

Due to the subordination of the Notes and the Guarantees, if assets of the Issuer or the Guarantors are distributed upon their respective dissolution, winding-up, liquidation or reorganization, holders of their Senior Indebtedness and other indebtedness and obligations that are not equal or junior to each of the Notes and the Guarantees in right of payment will likely recover more, ratably, than holders of the Notes and the Guarantees, and it is possible that no payments will be made to the holders of the Notes and the Guarantees.

 

None of the Notes, the Guarantees or the Indenture will limit the amount of indebtedness, including Senior Indebtedness, that the Issuer and the Guarantors may issue, guarantee or otherwise incur or the amount of liabilities, including debt or preferred stock, that the Issuer, the Guarantors' and their respective subsidiaries may issue, guarantee or otherwise incur.

 

Option to Defer Interest Payments

 

So long as no Event of Default (as defined below under “—Events of Default”) with respect to the Notes has occurred and is continuing, the Issuer may, at its option, defer interest payments on the Notes, from time to time, for one or more deferral periods of up to 20 consecutive semi-annual Interest Payment Periods (as defined below) each (each such deferral period, commencing on the interest payment date on which the first such deferred interest payment otherwise would have been made, an “Optional Deferral Period”), except that no such Optional Deferral Period may extend beyond the final maturity date of the Notes or end on a day other than the day immediately preceding an interest payment date. During any Optional Deferral Period, interest on the Notes will continue to accrue at  the then-applicable interest rate on the Notes (as reset from time to time on any Reset Date occurring during such Optional Deferral Period in accordance with the terms of the Notes). In addition, during any Optional Deferral Period, interest on the deferred interest (“compound interest”) will accrue at the then-applicable interest rate on the Notes (as reset from time to time on any Reset Date occurring during such Optional Deferral Period in accordance with the terms of the Notes), compounded semi-annually, to the extent permitted by applicable law. No interest will be due or payable on the Notes during an Optional Deferral Period, except upon a redemption of any Notes on any redemption date during such Optional Deferral Period (in which case all accrued and unpaid interest (including, to the extent permitted by applicable law, any compound interest) on the Notes to be redeemed to but excluding such redemption date will be due and payable on such redemption date), or unless the principal of and interest on the Notes shall have been declared due and payable as the result of an Event of Default with respect to the Notes (in which case all accrued and unpaid interest, including, to the extent permitted by applicable law, any compound interest, on the Notes shall become due and payable). All references in the Notes and, insofar as relates to the Notes, the Indenture, to “interest” on the Notes shall be deemed to include any such deferred interest and, to the extent permitted by applicable law, any compound interest, unless otherwise expressly stated or the context otherwise requires.

 

Before the end of any Optional Deferral Period that is shorter than 20 consecutive semi-annual Interest Payment Periods, the Issuer may elect, at its option, to extend such Optional Deferral Period, so long as the entire Optional Deferral Period does not exceed 20 consecutive semi-annual Interest Payment Periods or extend beyond the final maturity date of the Notes. The Issuer may also elect, at its option, to shorten the length of any Optional Deferral Period. No Optional Deferral Period (including as extended or shortened) may end on a day other than the day immediately preceding an interest payment date. At the end of any Optional Deferral Period, if all amounts then due on the Notes, including all accrued and unpaid interest thereon (including, without limitation and to the extent permitted by applicable law, any compound interest), are paid, the Issuer may elect to begin a new Optional Deferral Period; provided, however, that, without limitation of the foregoing, the Issuer may not begin a new Optional Deferral Period unless the Issuer has paid all accrued and unpaid interest on the Notes (including, without limitation and to the extent permitted by applicable law, any compound interest) from any previous Optional Deferral Periods.

 

During any Optional Deferral Period, the Issuer and the Guarantors will not do any of the following (subject to the exceptions set forth in the next succeeding paragraph):

 

·

declare or pay any dividends or distributions on any Capital Stock (as defined below) of Emera or the Issuer;

·

redeem, purchase, acquire or make a liquidation payment with respect to any Capital Stock of Emera or the Issuer;

·

pay any principal, interest or premium on, or repay, repurchase or redeem, any indebtedness of the Issuer or the Guarantors that ranks equally with or junior to the Notes or the Guarantees in right of payment; or

·

make any payments with respect to any guarantees by the Issuer or the Guarantors of any indebtedness if such guarantees rank equally with or junior to the Notes or the Guarantees in right of payment.

 

However, during an Optional Deferral Period, the Issuer and the Guarantors may (a) declare and pay dividends or distributions payable solely in shares of Emera’s or the Issuer’s common stock (together, for the avoidance of doubt, with cash in lieu of any fractional share) or options, warrants or rights to subscribe for or purchase shares of the Emera’s or the Issuer’s common stock, (b) declare and pay any dividend in connection with the implementation of a plan (a “Rights Plan”) providing for the issuance by Emera or the Issuer to all holders of Emera’s or the Issuer’s common stock of rights entitling them to subscribe for or purchase common stock or any class or series of Emera’s or the Issuer’s preferred stock, which rights (1) are deemed to be transferred with such common stock, (2) are not exercisable until the occurrence of a specified event or events and (3) are also issued in respect of future issuances of Emera’s or the Issuer’s common stock, (c) issue any of shares Emera’s or the Issuer’s Capital Stock under any Rights Plan or redeem or repurchase any rights distributed pursuant to a Rights Plan, (d) reclassify Emera’s or the Issuer’s Capital Stock or exchange or convert one class or series of Emera’s or the Issuer’s’ Capital Stock for another class or series of Emera’s or the Issuer’s’ Capital Stock, (e) purchase fractional interests in shares of Emera’s or the Issuer’s Capital Stock pursuant to the conversion or exchange provisions of such Capital Stock or the security being converted or exchanged, (f) purchase, acquire or withhold shares of Emera’s or the Issuer’s common stock related to the issuance of Emera’s or the Issuer’s common stock or rights under any dividend reinvestment plan or related to any of Emera’s or the Issuer’s benefit plans for Emera’s and the Issuer’s directors, officers, employees, consultants or advisors, including any employment contract, and (g) for the avoidance of doubt, convert convertible Capital Stock of Emera’s or the Issuer’s into other Capital Stock of Emera or the Issuer in accordance with the terms of such convertible Capital Stock (together, for the avoidance of doubt, with cash in lieu of any fractional share).

 

Notwithstanding the foregoing, the Indenture does not restrict in any manner the ability of any of Emera’s subsidiaries (other than the Issuer) to pay dividends or make any distributions to Emera or to any of Emera’s other subsidiaries.

 

The Issuer will give the holders of the Notes and the Trustee notice of its election of, or any shortening or extension of, an Optional Deferral Period at least 10 business days prior to the earlier of (1) the next succeeding interest payment date or (2) the date upon which the Issuer is required to give notice to any applicable self-regulatory organization or to holders of the Notes of the next succeeding interest payment date or the record date therefor. The record date for the payment of deferred interest and, to the extent permitted by applicable law, any compound interest payable on the interest payment date immediately following the last day of an Optional Deferral Period will be the regular record date with respect to such interest payment date.

 

“Capital Stock” means (i) in the case of a corporation or a company, corporate stock or shares; (ii) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; (iii) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and (iv) any other interest or participation that confers on a person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing person.

 

“Interest Payment Period” means the semi-annual period from and including an interest payment date to but excluding the next succeeding interest payment date, except for the first Interest Payment Period which shall be the period from and including the original issue date to but excluding December 15, 2024.

 

Redemption

 

Optional Redemption

 

The Issuer may redeem some or all of the Notes, at its option, in whole or in part (i) on any day in the period commencing on the date falling 90 days prior to the First Reset Date and ending on and including the First Reset Date and (ii) after the First Reset Date, on any interest payment date, at a redemption price in cash equal to 100% of the principal amount of the Notes being redeemed, plus, subject to the terms described in the first paragraph under “—Redemption Procedures; Cancellation of Redemption” below, accrued and unpaid interest on the Notes to be redeemed to but excluding the redemption date.

 

Redemption Following a Tax Event

 

The Issuer may at its option redeem the Notes, in whole but not in part, at any time following the occurrence and during the continuance of a Tax Event (as defined below) at a redemption price in cash equal to 100% of the principal amount of the Notes, plus, subject to the terms described in the first paragraph under “—Redemption Procedures; Cancellation of Redemption” below, accrued and unpaid interest on the Notes to but excluding the redemption date.

 

 

A “Tax Event” means that the Issuer has received an opinion of counsel experienced in such matters to the effect that, as a result of:

 

a.

any amendment to, clarification of, or change, including any announced prospective change, in the laws or treaties of the United States or any of its political subdivisions or taxing authorities, or any regulations under those laws or treaties;

 

b.

an administrative action, which means any judicial decision or any official administrative pronouncement, ruling, regulatory procedure, notice or announcement, including any notice or announcement of intent to issue or adopt any administrative pronouncement, ruling, regulatory procedure or regulation;

 

c.

any amendment to, clarification of, or change in the official position or the interpretation of any administrative action or judicial decision or any interpretation or pronouncement that provides for a position with respect to an administrative action or judicial decision that differs from the previously generally accepted position, in each case by any legislative body, court, governmental authority or regulatory body, regardless of the time or manner in which that amendment, clarification or change is introduced or made known; or

 

d.

a threatened challenge asserted in writing in connection with a tax audit of us or any of our affiliates or subsidiaries, or a publicly-known threatened challenge asserted in writing against any other taxpayer that has raised capital through the issuance of securities that are substantially similar to the Notes,

 

which amendment, clarification or change is effective or the administrative action is taken or judicial decision, interpretation or pronouncement is issued or threatened challenge is asserted or becomes publicly-known after the date of this prospectus, there is more than an insubstantial risk that interest payable by the Issuer on the Notes is not deductible, or within 90 days would not be deductible, in whole or in part, by the Issuer (or a member of the U.S. consolidated group of which the issuer is a member) for U.S. federal income tax purposes.

 

Redemption Following a Rating Agency Event

 

The Issuer may at its option redeem the Notes, in whole but not in part, at any time following the occurrence and during the continuance of a Rating Agency Event (as defined below) at a redemption price in cash equal to 102% of the principal amount of the Notes, plus, subject to the terms described in the first paragraph under “—Redemption Procedures; Cancellation of Redemption” below, accrued and unpaid interest on the Notes to but excluding the redemption date.

 

“Rating Agency Event” means, as of any date, a change, clarification or amendment in the methodology published by any nationally recognized statistical rating organization within the meaning of Section 3(a)(62) of the Securities Exchange Act of 1934, as amended (or any successor provision thereto), that then publishes a rating for the Issuer (together with any successor thereto, a “rating agency”) in assigning equity credit to securities such as the Notes, (a) as such methodology was in effect on the date of this prospectus, in the case of any rating agency that published a rating for the Issuer as of the date of this prospectus, or (b) as such methodology was in effect on the date such rating agency first published a rating for the Issuer, in the case of any rating agency that first publishes a rating for the Issuer after the date of this prospectus (in the case of either clause (a) or (b), the “current methodology”), that results in (i) any shortening of the length of time for which a particular level of equity credit pertaining to the Notes by such rating agency would have been in effect had the current methodology not been changed or (ii) a lower equity credit (including up to a lesser amount) being assigned by such rating agency to the Notes as of the date of such change, clarification or amendment than the equity credit that would have been assigned to the Notes by such rating agency had the current methodology not been changed.

 

Redemption Procedures; Cancellation of Redemption

 

Notwithstanding any statement under this caption “—Redemption” to the contrary, installments of interest on the Notes that are due and payable on any interest payment date falling on or prior to a redemption date for the Notes will be payable on that interest payment date to the registered holders thereof as of the close of business on the relevant record date according to the terms of the Notes and the Indenture, except that, if the redemption date for any Notes falls on any day during an Optional Deferral Period (as defined below under “—Option to Defer Interest Payments”), accrued and unpaid interest (including, to the extent permitted by applicable law, any compound interest (as defined below under “—Option to Defer Interest Payments”)) on such Notes will be paid on such redemption date to the persons entitled to receive the redemption price of such Notes. For the avoidance of doubt, the interest payment date falling immediately after the last day of an Optional Deferral Period shall not be deemed to fall on a day during such Optional Deferral Period.

 

 

Notice of any redemption will be mailed or electronically delivered (or otherwise transmitted in accordance with the depositary’s procedures) at least 10 days but not more than 60 days before the redemption date to each holder of Notes to be redeemed. Once notice of redemption is mailed, the Notes called for redemption will become due and payable on the redemption date at the applicable redemption price, plus, subject to the terms described in the immediately preceding paragraph, accrued and unpaid interest to but excluding the redemption date, and will be paid upon surrender thereof for redemption, unless (a) the notice of redemption provides that such redemption shall be subject to the condition described in the next succeeding paragraph and (b) such redemption shall have been canceled in accordance with the provisions of the next succeeding paragraph because such condition shall not have been satisfied. If only part of a note is redeemed, the Trustee will issue in the name of the registered holder of the note and deliver to such holder a new note in a principal amount equal to the unredeemed portion of the principal of the note surrendered for redemption. If the Issuer elects to redeem all or a portion of the Notes, then, unless otherwise provided in such notice of redemption as described in the next succeeding paragraph, the redemption will not be conditional upon receipt by the paying agent or the Trustee of monies sufficient to pay the redemption price.

 

If, at the time a notice of redemption is given, (i) the Issuer has not effected satisfaction and discharge of the Notes as described under “—Satisfaction and Discharge” and (ii) such notice of redemption is not being given in connection with or in order to effect satisfaction and discharge of the Notes, then, if the notice of redemption so provides and at our option, the redemption may be subject to the condition that the Trustee shall have received, on or before the applicable redemption date, monies in an amount sufficient to pay the redemption price and accrued and unpaid interest on the Notes called for redemption to but excluding the redemption date. If monies in such amount are not received by the Trustee on or before such redemption date, such notice of redemption shall be automatically canceled and of no force or effect, such proposed redemption shall be automatically canceled and the Issuer shall not be required to redeem the Notes called for redemption on such redemption date. In the event that a redemption is canceled, the Issuer will, not later than the business day immediately following the proposed redemption date, deliver, or cause to be delivered, notice of such cancellation to the registered holders of the Notes called for redemption (which notice will also indicate that any Notes or portions thereof surrendered for redemption shall be returned to the applicable holders), and the Issuer will direct the Trustee to, and the Trustee will, promptly return any Notes or portions thereof that have been surrendered for redemption to the applicable holders.

 

Unless the Issuer or the Guarantor defaults in payment of the redemption price or the proposed redemption is canceled in accordance with the provisions set forth in the immediately preceding paragraph, on and after the redemption date interest will cease to accrue on the Notes or portions thereof called for redemption.

 

Our actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error.

 

The Trustee shall have no duty to determine, or verify the calculation of, the redemption price.

 

If the Issuer redeems less than all of the Notes on any redemption date, the Trustee will select the Notes to be redeemed by lot or, in the case of Notes in book-entry form represented by one or more global Notes, by such other customary method prescribed by the depositary, which may be made on a pro rata pass-through distribution of principal basis.

 

Unless the Issuer or the Guarantors default in payment of the redemption price, on and after the redemption date interest will cease to accrue on the Notes or portions thereof called for redemption.

 

Additional Amounts

 

 

All payments made by or on behalf of Emera, EUSHI or the Issuer under or with respect to the Notes or the Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge imposed or levied by or on behalf of the Government of Canada or any province or territory thereof or by any authority or agency therein or thereof having power to tax (“Canadian Taxes”), unless Emera, EUSHI or the Issuer, as the case may be, is required to withhold or deduct Canadian Taxes by law or by the interpretation or administration thereof. If Emera, EUSHI or the Issuer, as the case may be, is so required to withhold or deduct any amount for or on account of Canadian Taxes from any payment made under or with respect to the Notes or the Guarantees, Emera, EUSHI or the Issuer, as the case may be, will pay to each holder of such Notes as additional interest such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each such holder after such withholding or deduction (and after deducting any Canadian Taxes on such Additional Amounts) will not be less than the amount such holder would have received if such Canadian Taxes had not been withheld or deducted. However, no Additional Amounts will be payable with respect to a payment made to a recipient or beneficial owner of such payment:

 

(i)

with which Emera, EUSHI or the Issuer, as the case may be, does not deal at arm’s length (within the meaning of the Income Tax Act (Canada) (the “Tax Act”)) at the time of making such payment;

 

(ii)

which is subject to such Canadian Taxes by reason of the recipient or beneficial owner being a “specified non-resident shareholder” of Emera for purposes of the Tax Act or a non-resident person not dealing at arm’s length with a “specified shareholder” (within the meaning of subsection 18(5) of the Tax Act) of Emera;

 

(iii)

which is subject to such Canadian Taxes by reason of the recipient or beneficial owner being an entity in respect of which Emera is a “specified entity” as defined in subsection 18.4(1) of the Tax Act;

 

(iv)

which is liable to such Canadian Taxes by reason of the recipient or beneficial owner being a resident, domicile or national of, or engaged in business or maintaining a permanent establishment or other physical presence in or otherwise having some connection with Canada or any province or territory thereof otherwise than by the mere holding of notes or the receipt of payments thereunder;

 

(v)

which is subject to such Canadian Taxes by reason of the failure of the recipient or beneficial owner to comply with any certification, identification, documentation or other reporting requirements if compliance is required by law, regulation, administrative practice or an applicable treaty as a precondition to exemption from, or a reduction in the rate of deduction or withholding of, such Canadian Taxes;

 

(vi)

which is subject to such Canadian Taxes by reason of the legal nature of the recipient or beneficial owner disentitling such recipient or beneficial owner to the benefit of an applicable treaty if and to the extent that the application of such treaty would have resulted in the reduction or elimination of any Canadian Taxes as to which Additional Amounts would have otherwise been payable to a notes holder on behalf of such beneficial owner;

 

(vii)

which failed to duly and timely comply with a timely request by Emera, EUSHI or the Issuer, as the case may be, to provide information, documents, certification or other evidence concerning such recipient or beneficial owner’s nationality, residence, entitlement to treaty benefits, identity or connection with Canada or any political subdivision or authority thereof, if and to the extent that due and timely compliance with such request would have resulted in the reduction or elimination of any Canadian Taxes as to which Additional Amounts would have otherwise been payable to a recipient or beneficial owner but for this clause;

 

(viii)

which is a fiduciary, limited liability company, partnership or any person other than the sole beneficial owner, to the extent that, any beneficiary or settlor of such fiduciary, any member of such limited liability company, any partner in such partnership or the beneficial owner of such payment (as the case may be) would not have been entitled to receive Additional Amounts with respect to such payment if such beneficiary, settlor, member, partner or beneficial owner had been the recipient of such payment; or

 

(ix)

which is subject to such Canadian Taxes by reason of any combination of the above.

 

In addition, no Additional Amounts will be payable on account of:

 

·

any tax, assessment or other governmental charge that is imposed otherwise than by withholding by the Issuer or a paying agent from the payment;

 

·

any tax, assessment or other governmental charge that would not have been imposed but for a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;

 

·

any estate, inheritance, gift, sales, excise, transfer, wealth, capital gains or personal property tax or similar tax, assessment or other governmental charge;

 

·

any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on any note, if such payment can be made without such withholding by at least one other paying agent;

 

·

any tax, assessment or other governmental charge that would not have been imposed but for the presentation by the holder of any note, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;

 

·

any tax, assessment or other governmental charge imposed under any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986 (the “Code”); or

 

·

any combination of any of the foregoing exceptions.

 

The Issuer will also (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. Notwithstanding the foregoing, Emera, EUSHI or the Issuer, as the case may be, will indemnify and hold harmless the recipient of any payment made under the Notes or any Guarantee for the amount of any taxes under Regulation 803 of the Tax Act or any similar or successor provision (other than taxes described in clauses (i) through (viii) above or taxes arising by reason of a transfer of the Note to a person resident in Canada with whom the transferor does not deal at arm’s length for the purposes of the Tax Act except where such non-arm’s length relationship arises as a result of the exercise or enforcement of rights under any Notes or any Guarantee) levied or imposed on and paid by such recipient as a result of such payment.

 

The Issuer will furnish to the holders of the Notes within 60 days after the date the payment of any Canadian Taxes is due pursuant to applicable law, certified copies of tax receipts or other documents evidencing such payment by the Issuer.

 

In the event the Issuer fails to remit any Canadian Taxes in respect of which Additional Amounts are payable, the Issuer will indemnify and hold harmless each holder of Notes (other than, for certainty, a recipient or beneficial owner not entitled to receive Additional Amounts) and upon written request reimburse each such holder for the amount, excluding any payment of Additional Amounts by the Issuer, of:

 

·

any Canadian Taxes levied or imposed and paid by such holder as a result of payments made under or with respect to the Notes;

 

·

any liability (including penalties, interest and expenses) arising therefrom or with respect thereto; and

 

·

any Canadian Taxes imposed with respect to any reimbursement under the preceding two bullet points, but excluding any such Canadian Taxes on such holder’s net income.

 

Wherever in the Indenture there is mentioned, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to the Notes or the Guarantees, 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.

 

Events of Default

 

The Indenture provides, with respect to the Notes, that any of the following events constitutes an Event of Default:

 

(1)

the Issuer defaults in the payment of any interest on the Notes that becomes due and payable and the default continues for 60 days (whether or not such payment is prohibited by the subordination provisions applicable to the Notes), except as the result of a deferral of interest payments in accordance with the provisions discussed above under “—Option to Defer Interest Payments”;

 

(2)

the Issuer defaults in the payment of principal of or premium, if any, on the Notes when due and payable (whether or not such payment is prohibited by the subordination provisions applicable to the Notes), at its maturity, upon redemption (including with respect to a Tax Event or a Rating Agency Event), upon acceleration or otherwise;

 

(3)

the Issuer, Emera or EUSHI, as applicable, defaults in the performance of, or breaches any other covenant or warranty (excluding covenants and warranties solely applicable to one or more other series of subordinated debt securities issued under the Indenture) in, the Indenture or the Notes and such default or breach continues for a period of 90 days after written notice of such default or breach has been given to the Issuer, Emera and EUSHI, from the Trustee or to the Issuer, Emera, EUSHI, and the Trustee from the holders of at least 25% in principal amount of the outstanding Notes;

 

(4)

Indebtedness (as defined in the Indenture) of the Issuer, Emera or EUSHI, as applicable, is accelerated by the holders thereof because of a default and the total amount of such Indebtedness unpaid or accelerated exceeds in the aggregate the greater of US$800,000,000 and 3% of Emera’s consolidated net assets;

 

(5)

certain events of bankruptcy, insolvency or reorganization of the Issuer, Emera or EUSHI; and

 

(6)

any Guarantee related to the Notes ceases to be in full force and effect (other than in accordance with the terms of such guarantee) or Emera or EUSHI denies or disaffirms its obligations under its respective Guarantee.

 

No Event of Default with respect to the Notes will necessarily constitute an Event of Default with respect to the subordinated debt securities of any other series that may be issued under the Indenture, and no Event of Default with respect to any such other series of subordinated debt securities that may be issued under the Indenture will necessarily constitute an Event of Default with respect to the Notes.

 

If an Event of Default  (other than one described in clause (5) above) occurs and is continuing with respect to the Notes, either the Trustee or the holders of at least 25% in principal amount of the outstanding Notes may declare the principal of, premium, if any, and accrued and unpaid interest (including, without limitation, any deferred interest and, to the extent permitted by applicable law, any compound interest) on the Notes to be due and payable immediately (notwithstanding any deferral of interest payments in accordance with the provisions discussed above under “—Option to Defer Interest Payments”). If any Event of Default  described in clause (5) above occurs, the principal of, premium, if any, and accrued and unpaid interest (including, without limitation, any deferred interest and, to the extent permitted by applicable law, any compound interest) on the Notes will be automatically due and payable immediately (notwithstanding any deferral of interest payments in accordance with the provisions discussed above under “—Option to Defer Interest Payments”), without any declaration, notice or other act on the part of the Trustee or any holder. However, any time after an acceleration with respect to the Notes has occurred, but before a judgment or decree based on such acceleration has been obtained, the holders of a majority in principal amount of outstanding Notes may, under some circumstances, rescind and annul such acceleration. The majority-holders, however, may not annul or waive a continuing default in payment of principal of, premium, if any, or interest on the Notes.

 

The Trustee will be entitled to receive reasonable indemnification satisfactory to it from the holders of the Notes before the Trustee exercises any of its rights or powers under the Indenture. This indemnification is subject to the Trustee’s duty to act with the required standard of care during a default.

 

The holders of a majority in principal amount of the outstanding Notes may direct the time, method and place of:

 

·

the conduct of any proceeding for any remedy available to the Trustee; or

 

·

the exercise of any trust or power conferred on the Trustee.

 

This right of the holders of the Notes is, however, subject to the provisions in the Indenture providing for the indemnification of the Trustee and other specified limitations. In general, the holders of Notes may institute an action against the Issuer or the Guarantors or any other obligor under the Notes only if the following four conditions are fulfilled:

 

·

the holder previously has given to the Trustee written notice of default and the default continues;

 

·

the holders of at least 25% in principal amount of the Notes then outstanding have both requested the Trustee to institute such action and offered the Trustee reasonable indemnity satisfactory to it;

 

·

the Trustee has not instituted this action within 60 days of receipt of such request and the furnishing of such indemnity; and

 

·

the Trustee has not received a direction inconsistent with such written request by the holders of a majority in principal amount of the Notes then outstanding.

 

The above four conditions do not apply to actions by holders of the Notes against the Issuer or the Guarantors or any other obligor under the Notes for payment of principal of, premium, if any, or interest on or after the due date.

 

The Indenture contains a covenant that the Issuer, the Guarantors and any other obligor under the Notes will file annually with the Trustee a statement by an officer as to whether or not the Issuer or the Guarantors, as the case may be, to his or her knowledge, is in default in the performance or observance of any of the terms, provisions and conditions of the Indenture and, if so, specifying all such known defaults, provided, however, that a failure to deliver such statement of a default shall not constitute a default under the Indenture, if such default is remedied within any applicable cure period.

 

Consolidation, Merger, Conveyance or Transfer

 

The Indenture limits the ability of the Issuer and the Guarantors to enter into mergers, consolidations or transfers of all of their respective assets. Accordingly, neither the Issuer nor the Guarantors are permitted to consolidate or merge with any other entity or convey, transfer or lease all or substantially all of its assets or properties to any entity unless:

 

·

with respect to the Issuer or EUSHI, that entity is organized under the laws of the United States or any state thereof or the District of Columbia, Canada or any province or territory thereof, or Bermuda or The Cayman Islands; provided, however, that if that entity is organized under the laws of a jurisdiction other than the United States, any state thereof or the District of Columbia, or the laws of Canada or any province or territory thereof, that entity assumes obligations of the Issuer or EUSHI, as the case may be, to pay Additional Amounts, substituting the name of such successor jurisdiction for Canada in each place that Canada appears in “Additional Amounts” below;

 

·

that entity assumes the obligations of the Issuer, Emera or EUSHI, as applicable, under the Indenture;

 

·

after giving effect to the transaction, the Issuer, Emera or EUSHI, as applicable, is not in default under the Indenture; and

 

·

the Issuer, Emera or EUSHI, as applicable, delivers to the Trustee an officer’s certificate and an opinion of counsel to the effect that the transaction complies with the Indenture.

 

Provision of Financial Information

 

Regardless of whether Emera is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise reports on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Indenture requires Emera to provide to the Trustee:

 

 

·

within 140 days after the end of the fiscal year, the information required to be contained in reports on Form 40-F or Form 20-F, as applicable, or any successor form, provided, however, that neither management’s report on internal control over financial reporting required by Section 13a-15(c) of the Exchange Act nor the annual disclosure of changes in internal control over financial reporting required by Section 13a-15(d) of the Exchange Act for foreign private issuers (which, for the avoidance of doubt, shall include the associated certifications of the principal executive and financial officers required by Sections 302 and 906 of the Sarbanes-Oxley Act of 2002) shall be required to be included until Emera’s second annual report on Form 40-F or Form 20-F, as applicable, filed with the SEC; and

 

·

within 65 days after the end of each of the first three fiscal quarters of each fiscal year, the information required to be contained in reports on Form 6-K (or any successor form), containing the information which, regardless of applicable requirements shall, at a minimum, contain such information required to be provided in quarterly reports under the laws of Nova Scotia, including applicable securities laws and the rules of the Toronto Stock Exchange or any province thereof to security holders of a corporation with securities listed on the Toronto Stock Exchange, whether or not Emera has any of our securities listed on such exchange.

 

Emera is a foreign private issuer eligible to use the Multi-Jurisdictional Disclosure System available to certain issuers incorporated pursuant to the laws of a Canadian province. As such, Emera is exempt from certain sections of the Exchange Act that U.S. issuers would otherwise be subject to, including the requirement to provide information statements or proxy statements that comply with U.S. securities laws and to file reports under Section 16 of the Exchange Act. For the avoidance of doubt, none of the above reporting requirements shall be construed to require such statements or reports that would not otherwise be required to be filed by foreign private issuers subject to the Multi-Jurisdictional Disclosure System.

 

Each such report, to the extent permitted by the rules and regulations of the SEC, will be prepared in accordance with Canadian disclosure requirements, provided, however, that Emera shall not be obligated to file such reports with the SEC if the SEC does not permit such filings.

 

Nothing herein shall be construed to require the registered public accounting firm that prepares or issues the audit report for Emera to attest to, and report on, the assessment made by the management of Emera pursuant to the requirements of Section 404(b) of the Sarbanes-Oxley Act of 2002, unless otherwise required by the Exchange Act.

 

Event Risk

 

Neither the Indenture, the Guarantees nor the Notes will afford holders of the Notes protection in the event of a highly leveraged transaction involving the Issuer, Emera or EUSHI, as applicable, or will contain any restrictions on the amount of additional indebtedness that the Issuer, Emera or EUSHI, as applicable, may incur.

 

Additional Notes

 

The Issuer may “reopen” the Notes and issue additional Notes (the “additional notes”) from time to time without notice or the consent of holders of the Notes. The Notes and any additional Notes subsequently issued under the Indenture, together with any related New Notes, will be treated as a single class for all purposes under the Indenture, including, without limitation, waivers, amendments and redemptions; provided that if such additional notes are not fungible with the notes of the applicable series offered hereby for U.S. federal income tax purposes, such additional notes will have a separate CUSIP and/or ISIN number. Except as otherwise specified herein, all references to the notes of any series include any additional notes and New Notes of that series. No additional notes may be issued if an Event of Default under the Indenture has occurred and is continuing with respect to the Notes.

 

Forms and Denominations

 

The Notes will be issued as one or more global securities in the name of a nominee of DTC and will be available only in book-entry form. The Notes will be issued in denominations of $2,000 and integral multiples of $1,000 in excess thereof.

 

Modification of the Indenture

 

Amendments of the Indenture and the Notes may be made by the Issuer, the Guarantors and the Trustee with the consent of the holders of a majority in principal amount of the outstanding Notes affected thereby; provided, however, that no such amendment may, without the consent of the holder the Notes affected thereby:

 

·

extend the final maturity of the principal of the Notes;

 

·

reduce the principal amount of the Notes;

 

·

reduce the rate or extend the time of payment of interest, including default interest, on the Notes;

 

·

reduce any amount payable on redemption of the Notes;

 

·

change the currency in which the principal of, premium, if any, or interest, on the Notes is payable;

 

·

waive a continuing default or Event of Default in the payment of principal of or premium, if any, or interest on the Notes;

 

·

impair the right to institute suit for the enforcement of any payment on the Notes when due; or

 

·

make any change in the percentage in principal amount of the Notes, the consent of the holders of which is required for any such amendment.

 

Without the consent of any holder of outstanding Notes, the Issuer, the Guarantors and the Trustee may amend the Indenture and the Notes to:

 

·

cure any ambiguity, omission, defect or inconsistency;

 

·

provide for the assumption by a successor to the obligations of the Issuer, EUSHI or Emera, as applicable, under the Indenture;

 

·

provide for uncertificated Notes in addition to or in place of Certificated Notes;

 

·

provide for the issuance of New Notes and related guarantees or additional Notes in accordance with the Indenture;

 

·

effect or maintain, or otherwise comply with the requirements of the Commission in connection with, the qualification of the Indenture under the Trust Indenture Act;

 

·

secure all or any of the Notes, to the extent otherwise permitted by the Indenture;

 

·

add to the covenants of the Issuer or the Guarantors or events of default for the benefit of the holders or surrender any right or power conferred upon the Issuer or the Guarantors;

 

·

effect any provision of the Indenture;

 

·

conform the text of the Indenture or the Notes to the “Description of the New Notes” set forth in this prospectus to the extent such provision in the “Description of the New Notes” was intended to be a verbatim, or substantially verbatim, recitation of a provision of the Indenture or the Notes; or

 

·

make other provisions that do not adversely affect the rights of any holder of outstanding Notes.

 

The holders of a majority in principal amount of the outstanding Notes may, on behalf of the holders of all Notes, waive compliance with any covenant or any past default under the Indenture with respect to the Notes, except a default in the payment of the principal of, premium, if any, or interest on any Note or in respect of a provision which under the Indenture cannot be amended without the consent of the holder of each outstanding Note affected.

 

It is not necessary for the consent of the holders under the Indenture to approve the particular form of any proposed amendment or waiver. It is sufficient if such consent approves the substance of the proposed amendment or waiver. A consent to any amendment or waiver under the Indenture by any holder of Notes given in connection with a tender of such holder’s Notes will not be rendered invalid by such tender. After an amendment or waiver under the Indenture requiring consent of the holders becomes effective, the Issuer will deliver to the holders and the Trustee a notice briefly describing such amendment or waiver. However, the failure to give such notice, or any defect in the notice, will not impair or affect the validity of the amendment or waiver.

 

Payments on the Notes; Paying Agent and Registrar

 

The Issuer will pay principal of, premium, if any, and interest on any Notes issued in certificated form (“Certificated Notes”) at the office or agency the Issuer designates in The City of New York, except that the Issuer may pay interest on any Certificated Notes either at the corporate trust office of the Trustee in The City of New York or, at the Issuer’s option, by check mailed to holders of the Notes at their registered addresses as they appear in the registrar’s books. In addition, if a holder of any Certificated Notes has given wire transfer instructions in accordance with the Indenture, the Issuer will make all payments on those Notes by wire transfer.

 

The Issuer has initially designated the Trustee, at its corporate trust office in The City of New York, to act as the Issuer’s paying agent and registrar. The Issuer may, however, change the paying agent or registrar without prior notice to the holders of the Notes, and the Issuer or any of the Issuer’s subsidiaries may act as paying agent or registrar.

 

The Issuer will pay principal of, premium, if any, and interest on, any Note in global form registered in the name of or held by the Depository or its nominee in immediately available funds to the Depository or its nominee, as the case may be, as the registered holder of such global note.

 

The Issuer will pay principal of, premium, if any, and interest on the Notes in U.S. dollars.

 

Discharge, Legal Defeasance and Covenant Defeasance

 

The Issuer may discharge or defease its obligations under the Notes as set forth below.

 

Under terms specified in the Indenture, the Issuer may discharge certain obligations to holders of the Notes that have not already been delivered to the Trustee for cancellation. The Notes must also:

 

·

have become due and payable;

 

·

be due and payable by their terms within one year; or

 

·

be scheduled for redemption by their terms within one year.

 

The Issuer may discharge the Notes by, among other things, irrevocably depositing an amount certified to be sufficient to pay at final maturity, or upon redemption (including with respect to a Tax Event or a Rating Agency Event), the principal, premium, if any, and interest on the Notes. The Issuer may make the deposit in cash, U.S. Government Obligations, or a combination thereof, as defined in the Indenture.

 

The Issuer may terminate all its obligations under the Notes and the Indenture at any time, except for certain obligations, including those respecting the defeasance trust and obligations to register the transfer or exchange of the Notes, to replace mutilated, destroyed, lost or stolen Notes and to maintain a registrar and paying agent in respect of the Notes. This is referred to as “legal defeasance.” If the Issuer exercises its legal defeasance option with respect to the Notes, the Guarantees in effect at such time will terminate with respect to the Notes.

 

Under terms specified in the Indenture, the Issuer and the Guarantors may be released with respect to any outstanding Notes from the obligations imposed by the sections of the Indenture that contain the covenants described above under “—Guarantees,” and “—Consolidation, Merger, Conveyance or Transfer.” In that case, the Issuer and the Guarantors would no longer be required to comply with these sections without the creation of an Event of Default under the Notes. This is typically referred to as “covenant defeasance.” If the Issuer exercises the covenant defeasance option with respect to the Notes, the Guarantees of the Notes in effect at the time will terminate. The Issuer may exercise the legal defeasance option notwithstanding the prior exercise of the covenant defeasance option.

 

 

Legal defeasance or covenant defeasance with respect to the Notes may be effected by the Issuer only if, among other things:

 

·

the Issuer irrevocably deposits with the Trustee cash, U.S. Government Obligations, or a combination thereof as trust funds in an amount certified by a nationally recognized firm of certified public accountants to be sufficient to pay at final maturity or upon redemption (including with respect to a Tax Event or a Rating Agency Event) the principal of, premium, if any, and interest on all outstanding Notes; and

 

·

the Issuer delivers to the Trustee an opinion of counsel to the effect that the beneficial owners of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the legal defeasance or covenant defeasance. This opinion must further state that these beneficial owners will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if our legal defeasance or covenant defeasance had not occurred. In the case of a legal defeasance, this opinion must be based on a ruling of the IRS or a change in U.S. federal income tax law occurring after the date of the Indenture.

 

Transfer and Exchange

 

A holder of Notes may transfer or exchange Notes at the office of the registrar in accordance with the Indenture. The registrar and the Trustee may require a holder, among other things, to furnish appropriate endorsements and transfer documents. No service charge will be imposed by the Issuer, the Trustee or the registrar for any registration of transfer or exchange of Notes, but the Issuer may require a holder or beneficial owner to pay a sum sufficient to cover any transfer tax or other similar governmental charge or other fee required by law. The Issuer will not be required to transfer or exchange any Note selected for redemption. Also, the Issuer will not be required to transfer or exchange any Note for a period of 15 days before sending a notice of redemption. The registered holder of a Note will be treated as the owner of it for all purposes.

 

Consent to Jurisdiction and Service

 

Under the Indenture, Emera has irrevocably appointed the Issuer as its agent for service of process in any suit, action or proceeding arising out of or relating to the Indenture, the Notes and the Guarantees and for actions brought under federal or state securities laws brought in any Federal or state court located in The City of New York, and has submitted to such non-exclusive jurisdiction.

 

Governing Law

 

The Indenture, the Notes and the Guarantees are governed by the internal laws of the State of New York.

 

Information Concerning the Trustee

 

Prior to default, the Trustee will perform only those duties specifically set forth in the Indenture. After default, the Trustee will exercise the same degree of care as a prudent individual would exercise in the conduct of his or her own affairs. The Trustee is not required to expend or risk its own funds or otherwise incur personal financial liability in the performance of its duties if it reasonably believes that it may not receive repayment or adequate indemnity.

 

Because Equiniti Trust Company, LLC is the Trustee under the Indenture, it may be required to resign as Trustee under the Indenture if there is an Event of Default under the Indenture.

 

The Issuer may appoint an alternative Trustee for any series of debt securities. The appointment of an alternative Trustee would be described in the applicable offering memorandum.

 

MATERIAL UNITED STATES TAX CONSEQUENCES OF THE EXCHANGE OFFER

 

The exchange of an Old Note for a New Note in the exchange offer will not be treated as a taxable event to holders for United States federal income tax purposes. Consequently, for United States federal income tax purposes, you will not recognize gain or loss upon receipt of a New Note, the holding period of the New Note will include the holding period of the Old Note exchanged therefor and the basis of the New Note will be the same as the basis of the Old Note immediately before the exchange.

 

CERTAIN CANADIAN FEDERAL INCOME TAX CONSIDERATIONS

 

The following summary describes the principal Canadian federal income tax considerations under the Income Tax Act (Canada) and the regulations thereunder (collectively, the “Tax Act”) generally applicable to a holder of Old Notes who acquires New Notes, including entitlement to all payments thereunder, as beneficial owner, pursuant to the exchange offer and who, at all relevant times, for purposes of the application of the Tax Act, (1) is not, and is not deemed to be, resident in Canada; (2) deals at arm’s length with the Issuer, the Guarantors and any transferee resident (or deemed to be resident) in Canada to whom the holder disposes of the New Notes; (3) does not use or hold the Old Notes or the New Notes in a business carried on in Canada; (4) is not a “specified non-resident shareholder” of Emera for purposes of the Tax Act or a non-resident person not dealing at arm’s length with a “specified shareholder” (within the meaning of subsection 18(5) of the Tax Act) of Emera; and (5) is not an entity in respect of which Emera is a “specified entity” (as defined in subsection 18.4(1) of the Tax Act) and is not a “specified entity” in respect of any transferee resident (or deemed to be resident) in Canada to whom the purchaser disposes of the New Notes (a “Non-Canadian Holder”). Special rules, which are not discussed in this summary, may apply to a Non-Canadian Holder that is an insurer that carries on an insurance business in Canada and elsewhere. This summary assumes that no interest paid on the New Notes will be in respect of a debt or other obligation to pay an amount to a person with whom the Issuer or the Guarantors do not deal at arm’s length within the meaning of the Tax Act.  

 

This summary is based on the current provisions of the Tax Act and on counsel’s understanding of the current administrative policies and assessing practices of the Canada Revenue Agency (the “CRA”) published in writing prior to the date hereof.  This summary takes into account all specific proposals to amend the Tax Act publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof (the “Proposed Amendments”) and assumes that all Proposed Amendments will be enacted in the form proposed.  However, no assurances can be given that the Proposed Amendments will be enacted as proposed, or at all.  This summary does not otherwise take into account or anticipate any changes in law or administrative policy or assessing practice of the CRA whether by legislative, administrative or judicial action nor does it take into account tax legislation or considerations of any province, territory or foreign jurisdiction, which may differ from those discussed herein.

 

This summary is of a general nature only and is not, and is not intended to be, legal or tax advice to any particular holder.  This summary is not exhaustive of all Canadian federal income tax considerations. Accordingly, holders of Notes should consult their own tax advisors having regard to their own particular circumstances.

 

This summary does not address any Canadian federal income tax considerations applicable to a holder of Old Notes who exchanges Old Notes for New Notes pursuant to the exchange offer and who, for purposes of the application of the Tax Act, is, or is deemed to be, resident in Canada. Accordingly, any such Canadian resident holder is urged to consult their own tax advisors having regard to their own circumstances and, in particular, with respect to the exchange of Old Notes for New Notes.

 

Exchange of Old Notes for New Notes

 

No tax will be payable by a Non-Canadian Holder on the exchange of Old Notes for New Notes made pursuant to the exchange offer.

 

Holding and Disposing of New Notes

 

No Canadian withholding tax will apply to interest, principal or premium, if any, paid or credited to a Non-Canadian Holder by the Issuer on a New Note or to the proceeds received by a Non-Canadian Holder on the disposition of a New Note, including on a redemption, payment on maturity or repurchase.

 

No other tax on income or gains will be payable by a Non-Canadian Holder on interest, principal or premium, if any, paid or credited to a Non-Canadian Holder by the Issuer on a New Note or on the proceeds received by a Non-Canadian Holder on the disposition of a New Note, including a redemption, payment on maturity or repurchase.

 

PLAN OF DISTRIBUTION

 

Each broker-dealer that receives New Notes for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of the New Notes in the United States. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of New Notes in the United States received in exchange for Old Notes where the Old Notes were acquired as a result of market-making activities or other trading activities. We have agreed that, for a period of 180 days after the expiration date, we will make this prospectus, as amended or supplemented, available to any broker-dealer for use in connection with any such resale. In addition, all dealers effecting transactions in the New Notes may be required to deliver a prospectus.

 

We will not receive any proceeds from any exchange of Old Notes for New Notes or from any sale of New Notes by broker-dealers. New Notes received by broker-dealers for their own accounts pursuant to the exchange offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the New Notes or a combination of these methods of resale, at market prices prevailing at the time of resale, at prices related to the prevailing market prices or at negotiated prices. Any such resale may be made directly to purchasers or through brokers or dealers who may receive compensation in the form of commissions or concessions from any broker-dealer and/or the purchasers of any New Notes. Any broker-dealer that resells New Notes that were received by it for its own account pursuant to the exchange offer and any broker or dealer that participates in a distribution of the New Notes may be deemed to be an “underwriter” within the meaning of the Securities Act and any profit of any resale of New Notes and any commissions or concessions received by these persons may be deemed to be underwriting compensation under the Securities Act. The letter of transmittal states that by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.

 

For a period of 180 days after the expiration date, we will promptly send additional copies of this prospectus and any amendment or supplement to this prospectus to any broker-dealer that requests such documents in the letter of transmittal. We have agreed to pay all expenses incident to the exchange offer (including the reasonable expenses of one counsel for the holders of the securities) other than commissions or concessions of any brokers or dealer and will indemnify the holders of Old Notes (including any broker-dealers) against certain liabilities, including liabilities under the Securities Act.

 

VALIDITY OF SECURITIES

 

The validity of the New Notes and the related Guarantees will be passed on for us by Davis Polk & Wardwell LLP, New York, New York. In passing on the validity of the Guarantees, Davis Polk & Wardwell LLP relied upon the opinion of Brian C. Curry, Corporate Secretary of Emera as to certain matters.

 

EXPERTS

 

The consolidated financial statements of Emera appearing in Emera's Form 40-F for the year ended December 31, 2023, have been audited by Ernst & Young LLP, Chartered Professional Accountants, Halifax, Nova Scotia, independent registered public accounting firm, as set forth in their report thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.

 

DOCUMENTS FILED AS PART OF THE REGISTRATION STATEMENT

 

The following documents have been filed or furnished with the SEC as part of the registration statement of which this prospectus is a part:

 

·

The documents listed as being incorporated by reference in this prospectus under the heading “Documents Incorporated by Reference”;

 

·

The organizational documents of the Issuer and the Guarantors;

 

·

The Indenture relating to the Notes;

 

·

The Registration Rights Agreement relating to the Old Notes;

 

·

Opinions and consents of counsel;

 

·

Consent of Ernst & Young LLP;

 

·

Powers of attorney (included on the signature pages of the registration statement);

 

·

The statement of eligibility of the U.S. Trustee on Form T-1;

 

·

The form of letter of transmittal; and

 

·

The form of notice of guaranteed delivery.

 

 

Any questions or requests for assistance may be directed to the exchange agent at the address and telephone numbers set forth below. You may also contact your broker, dealer, commercial bank, trust company or other nominee for assistance concerning the exchange offer:

 

The exchange agent for the exchange offer is:

 

D.F. King & Co., Inc.

 

48 Wall Street, 22^nd Floor

New York, New York 10005

Attention: Kristian Klein

 

Banks and Brokers Call Collect: (212) 269-5550

All Others Call Toll-Free: (800) 578-5378

Email: EMA@dfking.com

 

FORM F-10

 

PART II

 

INFORMATION NOT REQUIRED TO BE DELIVERED TO OFFEREES OR PURCHASERS

 

Indemnification of Certain Persons

 

Emera Incorporated is incorporated under the laws of Nova Scotia, Canada

 

Under Emera Incorporated’s (“Emera” or the “F-10 Registrant”) Amended Articles of Association, the F-10 Registrant must indemnify directors and officers, each former director and officer and each other individual who acts or acted at the F-10 Registrant’s request as a director or officer or in a similar capacity of an Other Entity (as defined below) and their respective heirs and legal representatives against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by any such person in respect of any civil, criminal, administrative, investigative, arbitration, mediation, or other proceeding or investigation to which he or she is made a party or involved in by reason of being or having been a director or officer of the F-10 Registrant or such Other Entity at the request of the F-10 Registrant or in a similar capacity, provided that: (i) the individual acted honestly and in good faith with a view to the best interests of the F-10 Registrant or, as the case may be, to the best interest of the Other Entity for which the individual acted as a director or officer or in a similar capacity at the F-10 Registrant’s request; and (ii) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the individual had reasonable grounds to believe that his or her conduct was lawful. The F-10 Registrant shall, to the full extent permitted by law, advance funds to an individual referred to above for any costs, charges and expenses of a proceeding or investigation provided that such individual shall repay the funds advanced if the individual does not fulfill the conditions of indemnification. The right of any person to indemnification granted is not exclusive of any other rights to which any person seeking indemnification may be entitled under any agreement, resolution or other vote of shareholders or directors, at law or otherwise; and the amount for which such indemnity is proved immediately attaches as a lien on the property of the F-10 Registrant and has priority against the members over all other claims. The term “Other Entity” means any affiliate or subsidiary of the F-10 Registrant, and any other body corporate, corporation, limited liability company, partnership, joint venture, trust, unincorporated association, unincorporated organization, unincorporated syndicate or other enterprise in which the F-10 Registrant, directly or indirectly, now or in the future, holds an interest, whether in debt, equity or otherwise, for which the director, officer or other individual serves or served as a director or officer or in a capacity similar thereto at the request of the F-10 Registrant. The F-10 Registrant is authorized to enter into an agreement evidencing and setting out the terms and conditions of an indemnity in favour of any of the persons referred to in the article regarding indemnification of its Amended Articles of Association. In addition, no director or officer of the F-10 Registrant shall, in the absence of any dishonesty on the part of such director or officer, be liable for the acts, receipts, neglects or defaults of any other director or officer or for joining in any receipt or other act for conformity, or for any loss or expense happening to the F-10 Registrant through the insufficiency or deficiency of title to any property acquired by order of the directors for or on behalf of the F-10 Registrant, or through the insufficiency or deficiency of any security in or upon which any of the funds of the F-10 Registrant are invested, or for any loss or damage arising from the bankruptcy, insolvency or tortious act of any person with whom any funds, securities or effects are deposited, or for any loss occasioned by error of judgment or oversight on his or her part, or for any other loss, damage or misfortune whatsoever which happens in the execution of the duties of his or her office or in relation thereto. The F-10 Registrant purchases directors’ and officers’ insurance which provides protection for directors and officers in cases where they incur a liability as a result of their activities on behalf of the F-10 Registrant.

 

Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers or persons controlling Emera pursuant to the foregoing provisions, Emera has been informed that in the opinion of the U.S. Securities and Exchange Commission such indemnification is against public policy as expressed in the Public Utilities Act and is therefore unenforceable.

 

EXHIBITS TO FORM F-10

 

The exhibits to this registration statement are listed in the exhibit index, which appears elsewhere herein.

 

FORM F-10

 

PART III

 

UNDERTAKING AND CONSENT TO SERVICE OF PROCESS

 

Item 1. Undertaking

 

The F-10 Registrant undertakes to make available, in person or by telephone, representatives to respond to inquiries made by the Commission staff, and to furnish promptly, when requested to do so by the Commission staff, information relating to the securities registered pursuant to Form F-10 or to transactions in said securities.

 

Item 2. Consent to Service of Process

 

(a)

Concurrently with the filing of this Registration Statement, the F-10 Registrant is filing with the Commission a written irrevocable consent and power of attorney on Form F-X.

 

(b)

Any change to the name or address of the agent for service of the F-10 Registrant shall be communicated promptly to the Commission by amendment to Form F-X referencing the file number of the relevant registration statement.

 

FORM F-10

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, the F-10 Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-10 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Halifax, Province of Nova Scotia, Country of Canada, on the 15th day of November, 2024.

 

	EMERA INCORPORATED
	By:	/s/ GREGORY W. BLUNDEN
		Name:	Gregory W. Blunden
		Title:	Chief Financial Officer
	By:	/s/ BRIAN C. CURRY
		Name:	Brian C. Curry
		Title:	Corporate Secretary

AUTHORIZED REPRESENTATIVE

 

Pursuant to the requirements of Section 6(a) of the Securities Act of 1933, the undersigned has signed this Registration Statement, solely in the capacity of the duly authorized representative of Emera Incorporated in the United States, on November 15, 2024 in the City of Halifax, Province of Nova Scotia, Country of Canada.

 

	EUSHI FINANCE, INC.
	By:	/s/ GREGORY W. BLUNDEN
		Name:	Gregory W. Blunden
		Title:	Chief Financial Officer & Director
	By:	/s/ BRIAN C. CURRY
		Name:	Brian. C. Curry
		Title:	Corporate Secretary

FORM S-4

 

PART II

 

INFORMATION NOT REQUIRED IN PROSPECTUS

 

Item 20. Indemnification of Directors and Officers

 

Delaware Registrants

 

EUSHI Finance, Inc. and Emera US Holdings Inc. are formed under the laws of Delaware.

 

Section 145 of the Delaware General Corporation Law (the “DGCL”) grants each corporation organized thereunder the power to indemnify any person who is or was a director, officer, employee or agent of the corporation or enterprise, against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, other than an action by or in the right of the corporation, by reason of being or having been in any such capacity, if he or she acted in good faith in a manner reasonably believed to be in, or not opposed to, the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.

 

Section 102(b)(7) of the DGCL enables a corporation in its certificate of incorporation or an amendment thereto to eliminate or limit the personal liability of a director or officer to the corporation or its stockholders of monetary damages for violations of the directors’ fiduciary duty of care, except (i) for any breach of the directors’ or officers’ duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the DGCL (providing for liability of directors for unlawful payment of dividends or unlawful stock purchases or redemptions), (iv) for any transaction from which a director derived an improper personal benefit or (v) with respect to an officer, in any derivative action by or in the right of the corporation.

 

Under EUSHI Finance, Inc.’s (“EUSHI Finance”) bylaws, EUSHI Finance may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of EUSHI Finance) by reason of the fact that he or she is or was a director, officer, employee or agent of EUSHI Finance, or is or was serving at the request of EUSHI Finance as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of EUSHI Finance, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of EUSHI Finance, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his or her conduct was unlawful. EUSHI Finance may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of EUSHI Finance to procure a judgment in its favor by reason of the fact that he or she is or was a director, officer, employee or agent of EUSHI Finance, or is or was serving at the request of EUSHI Finance as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection with the defense or settlement of such action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of EUSHI Finance and except that no indemnification shall be made in respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to EUSHI Finance unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Delaware Court of Chancery or such other court shall deem proper. To the extent that a present or former director or officer of EUSHI Finance has been successful on the merits or otherwise in defense of any action, suit or proceeding, or in defense of any claim, issue or matter, he or she shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection therewith. Any indemnification (unless ordered by a court) shall be made by EUSHI Finance only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because he or she has met the applicable standard of conduct. Such determination shall be made, with respect to a person who is a director or officer of EUSHI Finance at the time of such determination:

 

(a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; or (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; or (c) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion; or (d) by the stockholders. Expenses (including attorneys’ fees) incurred by an officer or director of EUSHI Finance in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by EUSHI Finance in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by EUSHI Finance as authorized by the EUSHI Finance’s bylaws. Such expenses (including attorneys’ fees) incurred by former directors and officers and other employees and agents of EUSHI Finance or by persons serving at the requests of EUSHI Finance as directors, officers, employees or agents of another corporation, partnership, joint venture, trust or other enterprise may be so paid upon such terms and conditions, if any, as EUSHI Finance deems appropriate. The indemnification and advancement of expenses provided by, or granted pursuant to, EUSHI Finance’s bylaws shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office. A right of indemnification or to advancement of expenses arising under a provisions of the certificate of incorporation, or a bylaw after the occurrence of the act of omission that is the subject of the civil, criminal, administrative or investigative action, suit or proceeding for which indemnification or advancement of expenses is ought, unless the provision in effect at the time of such act or omission explicitly authorized such elimination or impairment after such action or omission has occurred. EUSHI Finance may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of EUSHI Finance, or is or was serving at the request of EUSHI Finance as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not EUSHI Finance would have the power to indemnify him or her against such liability.

 

The amended certificate of incorporation of Emera US Holdings Inc. (“EUSHI”) indemnifies expenses and liabilities to all current and former directors and officers of EUSHI to the fullest extent permitted by applicable laws. Under EUSHI bylaws, EUSHI shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of EUSHI) by reason of the fact that he or she is or was a director or officer of EUSHI, or is or was serving at the request of EUSHI as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of EUSHI, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of EUSHI, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his or her conduct was unlawful. EUSHI shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of EUSHI to procure a judgment in its favor by reason of the fact that he or she is or was a director, officer, employee or agent of EUSHI, or is or was serving at the request of EUSHI as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection with the defense or settlement of such action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of EUSHI and except that no indemnification shall be made in respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to EUSHI unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Delaware Court of Chancery or such other court shall deem proper. EUSHI may, at the discretion of the board of directors, indemnify all employees and agents of EUSHI (other than directors and officers) to the extent that directors and officers shall be indemnified. To the extent that a present or former director or officer of EUSHI has been successful on the merits or otherwise in defense of any such action, suit or proceeding, or in defense of any such claim, issue or matter therein, he or she shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection therewith. Any indemnification (unless ordered by a court) shall be made by EUSHI only as authorized in the specific case upon a determination that indemnification of the present or former director or officer, employee or agent is proper in the circumstances because he or she has met the applicable standard of conduct. Such determination shall be made (1) by majority vote of the directors who are not parties to such action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (3) by the stockholders. Expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by EUSHI in advance of the final disposition of such action, suit or proceeding as authorized by the board of directors in the specific case upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if it is ultimately determined that such person is not entitled to be indemnified by EUSHI. He or she shall not repay the amount if it shall be ultimately determined that he or she is entitled to be indemnified. The indemnification and advancement of expenses provided by, or granted pursuant to, EUSHI’s bylaws shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. EUSHI is authorized, according to the discretion of the board of directors, to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of EUSHI, or is or was serving at the request of EUSHI as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not EUSHI must indemnify him or her against such liability.

 

 

Item 21. Exhibits and Financial Statement Schedules.

 

The exhibits to this registration statement are listed in the exhibit index, which appears elsewhere herein.

 

Item 22. Undertakings.

 

(a) The F-4 registrants hereby undertake:

 

(1) To file during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

 

(i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;

 

(ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

 

(iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

 

(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

(4) To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Securities Act of 1933 need not be furnished, provided that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, with respect to registration statements on Form F-3, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Securities Act of 1933 or Item 8.A of Form 20-F if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Form F-3.

 

 

(5) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, superseded or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.

 

(6) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: (i) any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; (ii) any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; (iii) the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and (iv) any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.

 

(b) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Form S-4 registrants pursuant to the foregoing provisions set forth in Item 20 above, or otherwise, such registrants have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by such registrants of expenses incurred or paid by a director, officer or controlling person of such registrants in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, such registrants will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.

 

(c) The Form S-4 registrants hereby undertake to respond to requests for information that is incorporated by reference into the prospectus pursuant to Item 4, 10(b), 11 or 13 of this form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of the responding to the request.

 

(d) The Form S-4 registrants hereby undertake to supply by means of a post-effective amendment all information concerning a transaction, and the company being involved therein, that was not the subject of disclosure included in the registration statement when it became effective.

 

FORM S-4

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, Emera Incorporated has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Halifax, Province of Nova Scotia, Country of Canada, on this 15th day of November, 2024.

 

	EMERA INCORPORATED
	By:	/s/ GREGORY W. BLUNDEN
		Name:	Gregory W. Blunden
		Title:	Chief Financial Officer
	By:	/s/ BRIAN C. CURRY
		Name:	Brian C. Curry
		Title:	Corporate Secretary

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature	Title	Date
* Scott C. Balfour	President, Chief Executive Officer and Director (Principal Executive Officer)	November 15, 2024
* Gregory W. Blunden	Chief Financial Officer (Principal Financial and Accounting Officer)	November 15, 2024
* M. Jacqueline Sheppard	Chair and Director	November 15, 2024
* James V. Bertram	Director	November 15, 2024
* Henry E. Demone	Director	November 15, 2024
* Paula Gold-Williams	Director	November 15, 2024
* Kent M. Harvey	Director	November 15, 2024

* B. Lynn Loewen	Director	November 15, 2024
* Brian J. Porter	Director	November 15, 2024
* Ian E. Robertson	Director	November 15, 2024
* Karen H. Sheriff	Director	November 15, 2024
* Jochen E. Tilk	Director	November 15, 2024
* Carla M. Tully	Director	November 15, 2024

*By:	/s/ Gregory W. Blunden
	Gregory W. Blunden
	Attorney-in-Fact

AUTHORIZED REPRESENTATIVE

 

Pursuant to the requirements of Section 6(a) of the Securities Act of 1933, the undersigned has signed this Registration Statement, solely in the capacity of the duly authorized representative of Emera Incorporated in the United States, on November 15, 2024 in the City of Halifax, Province of Nova Scotia, Country of Canada.

 

	EUSHI FINANCE, INC.
	By:	/s/ GREGORY W. BLUNDEN
		Name:	Gregory W. Blunden
		Title:	Chief Financial Officer & Director
	By:	/s/ BRIAN C. CURRY
		Name:	Brian C. Curry
		Title:	Corporate Secretary

SIGNATURES

 

Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Halifax, Province of Nova Scotia, Country of Canada, on this 15th day of November, 2024.

 

	EUSHI FINANCE, INC.
	By:	/s/ GREGORY W. BLUNDEN
		Name:	Gregory W. Blunden
		Title:	Chief Financial Officer & Director
	By:	/s/ BRIAN C. CURRY
		Name:	Brian C. Curry
		Title:	Corporate Secretary

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature		Title		Date
* Jeffrey Chronister		President and Director (Principal Executive Officer)		November 15, 2024
* Gregory W. Blunden		Director and Chief Financial Officer (Principal Financial and Accounting Officer)		November 15, 2024
* John Cochrane		Director		November 15, 2024

*By:	/s/ GREGORY W. BLUNDEN
	Gregory W. Blunden
	Attorney-in-Fact

SIGNATURES

 

Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Halifax, Province of Nova Scotia, Country of Canada, on this 15th day of November, 2024.

 

	EMERA US HOLDINGS INC.
	By:	/s/ GREGORY W. BLUNDEN
		Name:	Gregory W. Blunden
		Title:	Chief Financial Officer
	By:	/s/ BRIAN C. CURRY
		Name:	Brian C. Curry
		Title:	Secretary

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature		Title		Date
* David M. Nicholson		President and Director (Principal Executive Officer)		November 15, 2024
* Gregory W. Blunden		Chief Financial Officer (Principal Financial and Accounting Officer)		November 15, 2024
* Scott C. Balfour		Director		November 15, 2024
* Kent M. Harvey		Director		November 15, 2024

*By:	/s/ GREGORY W. BLUNDEN
	Gregory W. Blunden
	Attorney-in-Fact

INDEX TO EXHIBITS

 

Exhibits to Form F-10

Exhibit No.

 

1.1		Form of Letter of Transmittal (included in Exhibit 99.1 to Form S-4)
1.2		Form of Notice of Guaranteed Delivery (included in Exhibit 99.2 to Form S-4)
3.1		Registration Rights Agreement dated as of June 18, 2024 among EUSHI Finance, Inc., as issuer, Emera Incorporated and Emera US Finance Holdings Inc., as guarantors, and Morgan Stanley & Co. LLC, MUFG Securities Americas Inc. and RBC Capital Markets, LLC as representatives of the several initial purchasers named therein (included as Exhibit 4.4 to Form S-4)
4.1		Annual Information Form of Emera dated February 26, 2024 for the year ended December 31, 2023 (incorporated by reference to Exhibit 99.1 to Emera’s Form 40-F filed February 26, 2024)
4.2		Audited comparative consolidated financial statements of Emera as at and for the years ended December 31, 2023 and December 31, 2022, together with the auditors’ report thereon (incorporated by reference to Exhibit 99.3 to Emera’s Form 40-F filed February 26, 2024)
4.3		Management’s Discussion and Analysis of Emera for the year ended December 31, 2023 (incorporated by reference to Exhibit 99.2 to Emera’s Form 40-F filed February 26, 2024)
4.4		Management Information Circular of Emera distributed in connection with Emera’s annual meeting of shareholders held on May 23, 2024 (incorporated by reference to Exhibit 99.1 to Emera’s Form 6-K furnished April 12, 2024)
4.5		Unaudited comparative consolidated interim financial statements of Emera as at and for the three months and nine months ended September 30, 2024 and September 30, 2023 (incorporated by reference to Exhibit 99.2 to Emera’s Form 6-K furnished November 12, 2024)
4.6		Management’s Discussion and Analysis of Emera for the three months and nine months ended September 30, 2024 (incorporated by reference to Exhibit 99.1 to Emera’s Form 6-K furnished November 12, 2024)
5.1		Consent of Davis Polk & Wardwell LLP (included in Exhibit 23.2 to Form S-4)
5.2		Consent of Brian C. Curry, Corporate Secretary of Emera Incorporated (included in Exhibit 23.3 to Form S-4)
5.3		Consent of Ernst & Young LLP*
6.1		Powers of Attorney of Emera Incorporated (included as Exhibit 24.1 to Form S-4)
7.1		Base Indenture, dated as of June 18, 2024, among EUSHI Finance, Inc., as Issuer, Emera Incorporated and Emera US Holdings Inc., as Guarantors, and Equiniti Trust Company, LLC, as Trustee (included as Exhibit 4.2 to Form S-4)
7.2		First Supplemental Indenture among EUSHI Finance, Inc., as Issuer, Emera Incorporated and Emera US Holdings Inc., as Guarantors, and Equiniti Trust Company, LLC, as Trustee dated June 18, 2024 (included as Exhibit 4.3 to Form S-4)
107.1		Filing Fee Table*

 

*	Filed herewith.

Exhibits to Form S-4

Exhibit No.

 

3.1		Memorandum of Association of Emera Incorporated*
3.2		Amended Articles of Association of Emera Incorporated*
3.3		EUSHI Finance, Inc. Amended Certificate of Incorporation*
3.4		Bylaws of EUSHI Finance, Inc.*
3.5		Emera US Holdings Inc. Amended Certificate of Incorporation*
3.6		Bylaws of Emera US Holdings Inc.*
4.1		Form of 7.625% Fixed-to Fixed Reset Rate Junior Subordinated Notes due 2054 of EUSHI Finance, Inc.*
4.2		Base Indenture, dated as of June 18, 2024, among EUSHI Finance, Inc., as Issuer, Emera Incorporated and Emera US Holdings Inc., as Guarantors, and Equiniti Trust Company, LLC, as Trustee*
4.3		First Supplemental Indenture among EUSHI Finance, Inc., as Issuer, Emera Incorporated and Emera US Holdings Inc., as Guarantors, and Equiniti Trust Company, LLC, as Trustee dated June 18, 2024*
4.4		Registration Rights Agreement dated as of June 18, 2024 among EUSHI Finance, Inc., as issuer, Emera Incorporated and Emera US Finance Holdings Inc., as guarantors, and Morgan Stanley & Co. LLC, MUFG Securities Americas Inc. and RBC Capital Markets, LLC as representatives of the several initial purchasers named therein*
5.1		Opinion of Davis Polk & Wardwell LLP, U.S. counsel to EUSHI Finance, Inc., Emera Incorporated and Emera US Holdings Inc.*
5.2		Opinion of Brian C. Curry, Corporate Secretary of Emera Incorporated*
21.1		Subsidiaries of Emera Incorporated*
22.1		List of Guarantor Subsidiaries*
23.1		Consent of Ernst & Young LLP*
23.2		Consent of Davis Polk & Wardwell LLP (included as part of its opinion filed in Exhibit 5.1 hereof)*
23.3		Consent of Brian C. Curry, Corporate Secretary of Emera Incorporated (included as part of his opinion filed in Exhibit 5.2 hereof)*
24.1		Powers of Attorney of Emera Incorporated*
24.2		Powers of Attorney of EUSHI Finance, Inc.*
24.3		Powers of Attorney Emera US Holdings Inc.*
25.1		Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of Equiniti Trust Company, LLC as trustee, on Form T-1*
99.1		Form of Letter of Transmittal*
99.2		Form of Notice of Guaranteed Delivery*
99.3		Form of Letter to Clients*
99.4		Form of Letter to Nominees*
107.1		Filing Fee Table (included as Exhibit 107.1 to Form F-10)

 

*	Filed herewith.

 

Exhibit 3.1

AMENDED

MEMORANDUM OF ASSOCIATION

OF

NS POWER HOLDINGS INCORPORATED

1. The name of the Company in all its language forms is:

NS POWER HOLDINGS INCORPORATED

2 The Company shall have all the powers, capacity, rights and privileges of a natural person including the capacity, without the confirmation of the Supreme Court of Nova Scotia, or a Judge thereof, to:

(a) sell or dispose of its undertaking, or a substantial part thereof;

(b) distribute any of its property in specie among its members; or

(c) amalgamate with any company or other body of persons.

3. The liability of the members is limited.

4. The capital of the company shall consist of:

(a) an unlimited number of common shares without nominal or par value; and

(b) an unlimited number of preference shares in two classes, each of which shall have and be subject to such rights, privileges, restrictions and conditions and be issued in such series as the Directors of the Company may, from time to time, by resolution filed with the Registrar of Joint Stock Companies, determine provided however that such preference shares shall have the material attributes set forth in Sections 5 and 6 of this Memorandum of Association.

5. The first class of preference shares (the “First Preferred Shares”) shall have the following material attributes:

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(a) Issuable in Series:

The First Preferred Shares may be issued from time to time in one or more series in such numbers and with such designations, rights, privileges, restrictions and conditions as the Directors of the Company determine by resolution.

(b) Voting Rights:

Subject to the provisions of the Companies Act (Nova Scotia), as from time to time amended, supplemented or replaced, the holders of the First Preferred Shares of each series shall not be entitled as such to receive notice of or to attend any meeting of shareholders of the Company or to vote at any such meeting unless the Company from time to time fails to pay, in the aggregate, eight quarterly dividends on any series of the First Preferred Shares on the dates on which the same should be paid according to the terms thereof whether or not consecutive, whether or not such dividends have been declared and whether or not there are any monies of the Company properly applicable to the payment of dividends. Thereafter, but only so long as any such dividends remain in arrears, the holders of the First Preferred Shares of each series upon which dividends are in arrears as aforesaid shall be entitled to receive notice of and to attend all meetings of shareholders of the Company at which directors are to be elected and to vote for the election of two directors out of the total number of directors elected at such meeting. Such entitlement to vote shall be exercised together with holders of shares of:

(i) all other series of First Preferred Shares;

(ii) all series of the Second Preferred Shares (as hereinafter defined), and

(iii) all other classes or series of classes of shares of the Company, whether presently authorized or authorized in the future,

having the right to vote in similar circumstances. In any instance where the holders of the First Preferred Shares are entitled to vote, each such holder shall have one vote for each First Preferred Share held. Nothing contained in the First Preferred Share provisions shall be deemed to limit the right of the Company from time to time to increase or decrease the number of its directors in accordance with the procedures prescribed by the Articles of Association of the Company.

(c) Ranking and Priority of First Preferred Shares:

The First Preferred Shares of each series rank on a parity with the First Preferred Shares of every other series and are entitled to a preference over the Second Preferred Shares, the Common Shares and any other shares ranking junior to the First Preferred Shares whether presently authorized or authorized in the future with respect to the payment of dividends and the distribution of the remaining property and assets or return of capital of the

 

2

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Company in the event of the liquidation, dissolution or winding-up of the Company, whether voluntary or involuntary, or any other distribution of the property or assets or return of capital of the Company among its shareholders for the purpose of winding-up its affairs.

(d) Amendments:

Notwithstanding the Articles of Association of the Company, the class provisions attaching to the First Preferred Shares may be deleted, varied, modified or amended with the prior approval of the holders of the First Preferred Shares as a class given in writing by all holders of the First Preferred Shares outstanding or by at least two-thirds of the votes cast at a meeting or adjourned meeting of the holders of such shares duly called for that purpose and at which a quorum is present, in addition to any other approval required by the Companies Act (Nova Scotia), as from time to time amended, supplemented or replaced.

6. The second class of preference shares (the “Second Preferred Shares”) shall have the following material attributes:

(a) Issuable in Series:

The Second Preferred Shares may be issued from time to time in one or more series in such numbers and with such designations, rights, privileges, restrictions and conditions as the Directors of the Company determine by resolution.

(b) Voting Rights:

Subject to the provisions of the Companies Act (Nova Scotia), as from time to time amended, supplemented or replaced, the holders of the Second Preferred Shares of each series shall not be entitled as such to receive notice of or to attend any meeting of shareholders of the Company or to vote at any such meeting unless the Company from time to time fails to pay, in the aggregate, eight quarterly dividends on any series of the Second Preferred Shares on the dates on which the same should be paid according to the terms thereof whether or not consecutive, whether or not such dividends have been declared and whether or not there are any monies of the Company properly applicable to the payment of dividends. Thereafter, but only so long as any such dividends remain in arrears, the holders of the Second Preferred Shares of each series upon which dividends are in arrears as aforesaid shall be entitled to receive notice of and to attend all meetings of shareholders of the Company at which directors are to be elected and to vote for the election of two directors out of the total number of directors elected at such meeting. Such entitlement to vote shall be exercised together with holders of shares of:

(i) all series of the First Preferred Shares;

(ii) all other series of the Second Preferred Shares, and

 

3

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(iii) all other classes or series of classes of shares of the Company, whether presently authorized or authorized in the future,

having the right to vote in similar circumstances. In any instance where the holders of Second Preferred Shares are entitled to vote, each such holder shall have one vote for each Second Preferred Share held. Nothing contained in the Second Preferred Share provisions shall be deemed to limit the right of the Company from time to time to increase or decrease the number of its directors in accordance with the procedures prescribed by the Articles of Association of the Company.

(c) Ranking and Priority of Second Preferred Shares:

The Second Preferred Shares of each series rank on a parity with the Second Preferred Shares of every other series and are entitled to a preference over the Common Shares and any other shares ranking junior to the Second Preferred Shares whether presently authorized or authorized in the future with respect to the payment of dividends and the distribution of the remaining property and assets or return of capital of the Company in the event of the liquidation, dissolution or winding-up of the Company, whether voluntary or involuntary, or any other distribution of the property and assets or return of capital of the Company among its shareholders for the purpose of winding up its affairs.

(d) Amendments:

Notwithstanding the Articles of Association of the Company, the class provisions attaching to the Second Preferred Shares may be deleted, varied, modified or amended with the prior approval of the holders of the Second Preferred Shares as a class given in writing by all holders of the Second Preferred Shares outstanding or by at least two thirds of the votes cast at a meeting or adjourned meeting of the holders of such shares duly called for that purpose and at which a quorum is present, in addition to any other approval required by the Companies Act (Nova Scotia), as from time to time amended, supplemented or replaced.

 

7.

The Company and its shareholders and directors shall not amend this Memorandum of Association or the Articles of Association of the Company in a manner inconsistent with the Nova Scotia Power Reorganization (1998) Act (the “Reorganization Act”) or the provisions that must be included in the Company’s amended Memorandum or Articles of Association under the Reorganization Act.

 

4

Exhibit 3.2

 

Service Nova Scotia Registry of Joint Stock Companies		1505 Barrington St., 9th Flr.     PO Box 1529 Halifax, Nova Scotia B3J 2Y4		Bus: Toll free: Fax: Web address: E-mail:		902-424-7770 1-800-225-8227 902-424-4633 www.rjsc.ca rjsc@novascotia.ca

I hereby certify that the attached document is a true copy of a document filed in an electronic format in the office of the Registrar of Joint Stock Companies on the 11 day of July, 2019

 

(either Registrar of Joint Stock Companies or Agent for the Registrar of Joint Stock Companies)

Dated the 11 day of July, 2019

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SPECIAL RESOLUTION OF SHAREHOLDERS

OF EMERA INCORPORATED

(the “Company”)

“BE IT RESOLVED as a special resolution of the Company that:

1. the Articles of Association of the Company be repealed and new Articles of Association containing the amendments set out in Appendix A attached hereto be and are hereby adopted;

2. the amendments provided for hereby shall not in any way prejudice or affect any acts, matters or things done or performed by the shareholders, directors, officers or agents of the Company pursuant to existing Memorandum of Association and Articles of Association of the Company; and

3. any officer or director of the Company be and is hereby authorized and directed to do all things and execute all documents, under the corporate seal where required, necessary or desirable to give effect to the foregoing.”

*******************************************

I, the undersigned, being the Corporate Secretary of the Company, HEREBY CERTIFY that the foregoing is a true copy of a special resolution of the shareholders of the Company duly passed at a meeting of the shareholders of the Company on the 11^th day of July, 2019 and the aforesaid resolution is still in full force and effect.

 

WITNESS my hand this				day of July, 2019.

 

Name: Stephen D. Aftanas Title: Corporate Secretary

 

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APPENDIX “A”

AMENDED ARTICLES OF ASSOCIATION

OF

EMERA INCORPORATED

PART A

INTERPRETATION

 

1.	In these Articles (including for greater certainty Part B hereof), unless there be something in the subject or context inconsistent therewith:

 

(a)

the “Act” means the Companies Act, R.S.N.S. 1989, c.81, as amended and restated from time to time;

 

(b)

“affiliate” for purposes of these Articles shall mean:

 

(i)

one body corporate is affiliated with another body corporate if one of them is the subsidiary of the other or both are subsidiaries of the same body corporate or each of them is controlled by the same person; and

 

(ii)

if two bodies corporate are affiliated with the same body corporate at the same time, they are deemed to be affiliated with each other;

 

(c)

“business day” means any day other than a Saturday or Sunday on which the banks in Halifax, Nova Scotia or the Company are generally open for business;

 

(d)

the “Company” means Emera Incorporated;

 

(e)

“Director” means a director of the Company for the time being and “Board”, “board” and “Board of Directors” means the board of directors of the Company for the time being;

 

(f)

a “meeting” shall, to the extent permitted by the Act and other applicable law, absent express provisions herein to the contrary, include a meeting held in whole or in part by telephonic, electronic or other means of communication contemplated by these Articles;

 

(g)

the terms “member” (when not expressly referring to a member of another body, group or organization), “shareholder” and “Shareholder” each means a member of the Company, as that term is used in the Act in connection with a company limited by shares;

 

(h)

the “Office” means the registered office for the time being of the Company;

 

(i)

the “Register” means the register of members kept pursuant to the Act and, where context permits, includes any branch register of members;

 

1

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(j)

the “Registrar” means the Registrar of Joint Stock Companies appointed under the Act and includes a Deputy Registrar or any person authorized by the Governor in Council to perform the duties of the Registrar in the absence of the Registrar;

 

(k)

“month” means calendar month;

 

(l)

“in writing” and “written” includes printing, lithography and other modes of representing or reproducing words in visible form;

 

(m)

“sent”, “given”, “delivered” and similar terms in relation to shareholders of the Company shall for greater certainty and without limitation include the “notice and access” method or any other manner of providing information permitted for any such purpose by the Act and applicable securities regulation;

 

(n)

“Articles” means these articles of association and all amendments thereto;

 

(o)

“reporting issuer” has the meaning given thereto in the Act;

 

(p)

“Secretary” includes any person appointed to perform the duties of the Secretary temporarily;

 

(q)

“special resolution” means, in relation to the Company, notwithstanding the provisions of the Act, a resolution passed by a majority of not less than three fourths of such members of the Company entitled to vote as are present in person or by proxy at a general meeting of the Company of which notice specifying the intention to propose the resolution as a special resolution has been duly given;

 

(r)

for purposes of these Articles a body corporate is a “subsidiary” of another body corporate if:

 

(i)

it is controlled by

 

(A)

that other body corporate;

 

(B)

that other body corporate and one or more bodies corporate each of which is controlled by that other body corporate; or

 

(C)

two or more bodies corporate each of which is controlled by that other body corporate; or

 

(ii)

it is a subsidiary of a body corporate that is a subsidiary of that other body corporate.

 

(s)

“proxyholder” includes an alternate proxyholder;

 

(t)

“Privatization Act” means the Nova Scotia Power Privatization Act, S.N.S., 1992, c.8 – and all amendments thereto;

 

(u)

“Reorganization Act” means the Nova Scotia Power Reorganization (1998) Act, S.N.S., 1998, c.19 – and all amendments thereto;

 

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(v)

“stated capital account” means a capital account maintained or deemed to be maintained by the Company for shares of a class or series pursuant to the Act;

 

(w)

words importing number include both the singular and the plural unless the context otherwise requires;

 

(x)

words importing gender include all genders unless the context otherwise requires;

 

(y)

words importing persons include both natural persons and bodies corporate and, where context permits, include partnerships and other entities.

 

2.

These Articles have been prepared and adopted for use in an environment in which technology is evolving. Language used herein is not intended to limit the use of technology by the Company and its Directors, but rather is intended to facilitate the use of new technologies by the Company and its Directors wherever the objectives of these Articles can be well accomplished through the use of technology, subject to applicable law. These Articles are to be interpreted in the context of such intention, and terms used herein, including terms which suggest place, time or action, shall be interpreted to allow activities and processes to occur with the aid of technology by a means that may not be covered by the ordinary meanings of such terms. For greater certainty, the intention expressed here applies to technologies which existed at the time these Articles were originally prepared or most recently amended and any expressed or implied reference to the use of technology by the Company or the Directors in one provision of these Articles shall not preclude other provisions from being interpreted as applying to the use of other technologies by the Company and its Directors in light of such intention. The Board may make rules of interpretation from time to time which shall govern the interpretation of these Articles.

 

3.	The regulations appearing in Table A in the First Schedule to the Act shall not apply to the Company.

 

4.

The Directors may enter into and carry into effect or adopt and carry into effect any agreement or agreements made in connection with the reorganization of the Company pursuant to the Reorganization Act on behalf of the Company and shall have full power to agree to any modification in the terms of any such agreements, either before or after their execution.

 

5.	The Directors may, out of any moneys of the Company, pay all expenses incurred for the formation and reorganization of the Company.

 

6.	The head office, Office and principal executive offices of the Company shall be situated in the Province of Nova Scotia.

SHARES

 

7.	The Directors shall control the shares and, subject to the provisions of these Articles and the Reorganization Act, may allot or otherwise dispose of them to such persons at such times, on such terms and conditions, for such consideration and either at a premium or at par as they think fit.

 

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8.

The Directors may pay on behalf of the Company a reasonable commission to any person in consideration of that person subscribing or agreeing to subscribe (whether absolutely or conditionally) for any shares in the Company, or procuring or agreeing to procure subscriptions whether absolute or conditional) for any shares in the Company. Subject to the Act, the commission may be paid or satisfied in cash or in shares debentures or other securities of the Company.

 

9.	On the issue of shares the Company may arrange among the holders thereof differences in the calls to be paid and in the times for their payment.

 

10.	If the whole or part of the allotment price of any shares is, by the conditions of their allotments, payable in instalments, every such instalment, shall, when due, be payable to the Company by the person who is at such time the registered holder of the shares.

 

11.	Shares may be registered in the names of joint holders not exceeding three in number.

 

12.

The joint holders of a share shall be severally as well as jointly liable for the payment of all instalments and calls due in respect of such share. On the death of one or more joint holders of shares the survivor or survivors of them shall alone be recognized by the Company as having title to the shares.

 

13.

Save as herein otherwise provided, the Company shall be entitled to treat the registered holder of any share as the absolute owner thereof and accordingly shall not, except as ordered by a court of competent jurisdiction or required by statute, be bound to recognize any equitable or other claim to or interest in such share on the part of any other person.

CERTIFICATES

 

14.

Certificates of title to shares shall comply with the Act and be in such form as the Directors may from time to time approve. Nothing in these Articles shall require, should at any time the Act and applicable laws otherwise permit, that all or any shares issued by the Company be evidenced by certificates and, subject to applicable laws, the Directors may from time to time issue regulations, complying with the Act and other applicable laws, establishing book-based or other share ownership and transfer systems as they may see fit.

 

15.

Certificates of title to shares shall be signed (i) by the President, a Vice-President or a Director, and (ii) by the Secretary, an Assistant Secretary or such other persons as the Directors may authorize and, (iii) if the Directors have appointed a transfer agent for the Company, by an authorized officer of such transfer agent. The signature of the President or a Vice-President or Director and, if a transfer agent has been appointed, of the Secretary or an Assistant Secretary or other authorized person signing in lieu of them, may be engraved, lithographed or printed upon the certificates or any one or more of them and all such certificates, when signed by the Secretary, an Assistant Secretary, such other person as the Directors authorize, or, if a transfer agent has been appointed, an authorized officer of such transfer agent, shall be valid and binding upon the Company. If the Company has appointed only one Director and officer, share certificates shall be signed by that Director alone as sole Director. If a certificate contains a printed or mechanically reproduced signature of a person, the Company may issue the certificate, notwithstanding that the person has ceased to be a Director or an officer of the Company and the certificate is as valid as if such person were a Director or an officer at the date of its issue. Any certificate representing shares of a class publicly traded on any stock exchange shall be

 

4

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valid and binding on the Company if it complies with the rules of such exchange whether or not it otherwise complies with this Article.

 

16.

Subject to any regulations made at any time of the Directors, each shareholder may have title to the shares registered in the shareholder’s name evidenced by any number of certificates so long as the aggregate of the shares stipulated in such certificates equals the aggregate registered in the shareholder’s name.

 

17.	Where shares are registered in the names of two or more persons, the Company shall not be bound to issue more than one certificate or set of certificates, and such certificate or set of certificates shall be delivered to the person first named on the Register.

 

18.

Subject to any regulations issued by the Directors, any certificate that has become worn, damaged or defaced may, upon its surrender to the Company, be cancelled and replaced by a new certificate. Subject to any regulations issued by the Directors, any certificate that has become lost or destroyed may also be replaced by a new certificate upon proof of such loss or destruction to the satisfaction of the Directors and the furnishing to the Company of such undertakings of indemnity as the Directors deem adequate.

 

19.	The sum of one dollar or such other sum as the Directors from time to time determine shall be paid to the Company for every certificate other than the first certificate issued to any holder in respect of any share or shares.

 

20.	The Directors may cause one or more branch Registers to be kept in any place or places, whether inside or outside of the Province of Nova Scotia.

CALLS

 

21.

The Directors may from time to time make such calls as they think fit upon the shareholders in respect of all amounts unpaid on the shares held by them respectively and not made payable at fixed times by the conditions on which such shares were allotted and each shareholder shall pay the amount of every call so made on him or her to the persons and at the times and places appointed by the Directors. A call may be made payable by instalments.

 

22.	A call shall be deemed to have been made at the time when the resolution of the Directors authorizing such call was passed.

 

23.	At least fourteen days’ notice of any call shall be given, and such notice shall specify the time and place at which and the person to whom such call shall be paid.

 

24.

If the sum payable in respect of any call or instalment is not paid on or before the day appointed for the payment thereof, the holder for the time being of the share in respect of which the call has been made or the instalment is due shall pay interest on such call or instalment at the rate of fifteen per cent per annum from the day appointed for the payment thereof up to the time of actual payment.

 

25.

At the trial or hearing of any action for the recovery of any amount due for any call, it shall be sufficient to prove that the name of the shareholder sued is entered on the Register as the holder or one of the holders of the share or shares in respect of which such debt accrued, that the resolution making the call is duly recorded in the minute book and that

 

5

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notice of such call was duly given to the shareholder sued in pursuance of these Articles. It shall not be necessary to prove the appointment of the Directors who made such call or any other matters whatsoever and the proof of the matters stipulated shall be conclusive evidence of the debt.

 

26.

The Directors may, if they think fit, receive from any shareholders willing to advance it all or any part of the amounts due upon shares held by the shareholder beyond the sums actually called for; and upon the amounts so paid or satisfied in advance or so much thereof as from time to time exceeds the amount of the calls then made upon the shares in respect of which such advance has been made the Company may pay interest at such rate, not exceeding fifteen per cent per annum, as the shareholder paying such sum in advance and the Directors agree upon or the Directors may agree with such shareholder that the shareholder may participate in profits upon the amount so paid or satisfied in advance.

FORFEITURE OF SHARES

 

27.

If any shareholder fails to pay any call or instalment on or before the day appointed for payment, the Directors may at any time thereafter while the call or instalment remains unpaid serve a notice on such shareholder requiring the shareholder to pay the call or instalment together with any interest that may have accrued and all expenses that may have been incurred by the Company by reason of such non-payment.

 

28.

The notice shall name a day (not being less than fourteen days after the date of the notice) and a place or places on and at which such call or instalment and such interest and expenses are to be paid. The notice shall also state that, in the event of non-payment on or before the day and at the place or one of the places so named, the shares in respect of which the call was made or instalment is payable will be liable to be forfeited.

 

29.

If the requirements of any such notice are not complied with, any shares in respect of which such notice has been given may at any time thereafter, before payment of all calls or instalments, interest and expenses due in respect thereof, be forfeited by a resolution of the Directors to that effect. Such forfeiture shall include all dividends declared in respect of the forfeited shares and not actually paid before the forfeiture.

 

30.	When any share has been so forfeited, notice of the resolution shall be given to the shareholder in whose name it stood immediately prior to the forfeiture and an entry of the forfeiture shall be made in the Register.

 

31.	Any share so forfeited shall be deemed the property of the Company and the Directors may sell, re-allot or otherwise dispose of it in such manner as they think fit.

 

32.	Directors may at any time before any share so forfeited has been sold, re-allotted or otherwise disposed of, annul the forfeiture thereof upon such conditions as they think fit.

 

33.

Any shareholder whose shares have been forfeited shall nevertheless be liable to pay and shall forthwith pay to the Company all calls, instalments, interest and expenses owing upon or in respect of such shares at the time of the forfeiture together with interest thereon at the rate of fifteen per cent per annum from the time of forfeiture until payment. The Directors may enforce such payment if they think fit, but are under no obligation to do so.

 

6

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34.

A certificate in writing under the hand of the Secretary stating that a share has been duly forfeited on a specified date in pursuance of these Articles and the time when it was forfeited shall be conclusive evidence of the facts therein stated as against all persons who would have been entitled to the share but for such forfeiture.

LIEN ON SHARES

 

35.

The Company shall have a first and paramount lien upon all shares (other than fully paid up shares) registered in the name of each shareholder (whether solely or jointly with others) and upon the proceeds from the sale thereof for the debts, liabilities and other engagements of the shareholder, solely or jointly with any other person, to or with the Company, whether or not the period for the payment, fulfilment or discharge thereof has actually arrived, and such lien shall extend to all dividends from time to time declared in respect of such shares. Unless otherwise agreed, the registration of a transfer of shares shall operate as a waiver of any lien of the Company on such shares.

 

36.

For the purposes of enforcing such lien the Directors may sell the shares subject to the lien in such manner as they think fit; but no sale shall be made until the period for the payment, fulfilment or discharge of such debts, liabilities or other engagements has arrived, and until notice in writing of the intention to sell has been given to such shareholder, or to the shareholder’s executors or administrators and default has been made by the shareholder or the executors or administrators in such payment, fulfilment or discharge for seven days after such notice.

 

37.	The net proceeds of any such sale after the payment of all costs shall be applied in or towards the satisfaction of such debts, liabilities or engagements and the residue, if any, paid to such shareholder or such shareholder’s executors, administrators or assigns.

VALIDITY OF SALES

 

38.

Upon any sale after forfeiture or the enforcing of a lien in purported exercise of the powers given by these Articles the Directors may cause the purchaser’s name to be entered in the Register in respect of shares sold, and the purchaser shall not be bound to see to the regularity of the proceedings or to the application of the purchase money, and after the purchaser’s name has been entered in the Register in respect of such shares the validity of the sale shall not be impeached by any person and the remedy of any person aggrieved by the sale shall be in damages only and against the Company exclusively.

TRANSFER OF SHARES

 

39.

The instrument of transfer of any share in the Company shall be signed by the transferor. The transferor shall be deemed to remain the holder of such share until the name of the transferee is entered in the Register in respect thereof and shall be entitled to receive any dividend declared thereon before the registration of the transfer.

 

40.	The instrument of transfer of any share shall be in writing in the following form or to the following effect or as may be otherwise approved by the Directors or the Company’s transfer agent from time to time:

For value received I (we) assign and transfer unto

 

7

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Please insert social insurance number or other tax identifying number of assignee

 

                                                                              

                                                                              

Please print name and address including postal code of assignee

                 shares of the Company represented by this certificate.

Date                                                              

Signature                                                  

SIGNATURE GUARANTEE: The signature must be guaranteed by a bank, trust company or a member of a recognized stock exchange whose signature is acceptable to the Company’s transfer agent.

 

41.	The Directors may, without assigning any reason therefor, decline to register any transfer of shares not fully paid up or upon which the Company has a lien.

 

42.

Every instrument of transfer shall be left at the Office of the Company or the office of its transfer agent where the principal or a branch Register is maintained for registration together with the certificate of the shares, if any, to be transferred and such other evidence as the Company may require to prove the title of the transferor or the right of the transferor to transfer the shares.

 

43.	A fee not exceeding Five Dollars ($5.00) may be charged for each transfer and shall, if required by the Directors, be paid before its registration.

 

44.	Every instrument of transfer shall, after its registration, remain in the custody of the Company.

 

45.	Any instrument of transfer that the Directors decline to register shall, except in case of fraud, be returned to the person who deposited it.

TRANSMISSION OF SHARES

 

46.

The executors or administrators of a deceased member (not being one of several joint holders) shall be the only persons recognized by the Company as having any title to the shares registered in the name of such member. When a share is registered in the names of two or more joint holders, the survivor or survivors or the executors or administrators of the last surviving member, shall be the only persons recognized by the Company as having any title to, or interest in, such share.

 

47.

Notwithstanding anything in these Articles, if the Company has only one member, not being one of several joint holders, and that member dies, the executors or administrators of such deceased member shall be entitled to register themselves in the Register as the holders of such deceased member’s share whereupon they shall have all the rights given by these Articles and law to members.

 

8

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48.

Subject to the Reorganization Act, any person becoming entitled to shares in consequence of the death or bankruptcy of any member or any way other than by allotment or transfer upon producing such evidence of being entitled to act in the capacity claimed or of such person’s title to the shares as the Directors think sufficient, may be registered as a member in respect of such shares, or may, without being registered, transfer such shares subject to the provisions of these Articles respecting the transfer of shares.

 

49.	The Directors shall have the same right to refuse to register a person entitled by transmission to any shares, or that person’s nominee, as if the person were the transferee named in an ordinary transfer presented for registration.

STATED CAPITAL ACCOUNTS

 

50.

 

(a)

The Company shall maintain a separate capital account, sometimes called a stated capital account, for each class and series of shares it issues and, should it fail to do so will be deemed to maintain such account as contemplated by the Act.

 

(b)

The Company shall add to the appropriate stated capital account the full amount of any consideration it receives for any shares it issues.

 

(c)

Notwithstanding paragraph (b) of this Article 50, where the Company issues shares in exchange for

 

(i)

property of a person who immediately before the exchange or that, because of the exchange, did not deal with the Company at arm’s length within the meaning of that term in the Income Tax Act (Canada), or

 

(ii)

shares of a body corporate that immediately before the exchange or that, because of the exchange, did not deal with the Company at arm’s length within the meaning of that term in the Income Tax Act (Canada),

the Company may, subject to paragraph (d) of this Article 50, add to the stated capital accounts maintained for the shares of the classes or series issued the whole or any part of the amount of the consideration it received in the exchange.

 

(d)

On the issue of a share the Company shall not add to a stated capital account in respect of the share it issues an amount greater than the amount of the consideration it received for the share.

RECORD DATES

 

51.

 

(a)

For the purpose of determining shareholders:

 

(i)

entitled to receive payment of a dividend;

 

(ii)

entitled to participate in a liquidation distribution; or

 

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(iii)

for any other purpose except the right to receive notice of or to vote at a meeting,

the Directors may fix in advance a date as the record date for such determination of shareholders but such record date shall not precede the particular action to be taken by more than the longer of (A) sixty days, or (B) such longer period as is fixed from time to time by the Directors and complies with all applicable laws;

 

(b)

For the purpose of determining shareholders entitled to receive notice of a meeting of shareholders, the Directors may fix in advance a date as the record date for such determination of shareholders but, unless different periods complying with all applicable laws are fixed from time to time by the Directors, such record date shall not precede by more than sixty days or be less than twenty-one days before the date on which the meeting is to be held;

 

(c)

For the purpose of determining shareholders entitled to vote at a meeting of shareholders, the Directors may fix in advance a date as the record date for such determination of shareholders, but such record date shall not precede the date on which the meeting is to be held by more than longer of (A) sixty days, or (B) such longer period complying with all applicable laws as is fixed from time to time by the Directors;

 

(d)

If no record date is fixed,

 

(i)

the record date for the determination of shareholders entitled to receive notice of a meeting of shareholders shall be

 

(A)

at the close of business on the day immediately preceding the day on which the notice is given; or

 

(B)

if no notice is given, the day on which the meeting is held; and

 

(ii)

the record date for the determination of shareholders for any purpose other than to establish a shareholder’s right to receive notice of a meeting or a vote shall be at the close of business on the day on which the Directors pass the resolution relating thereto;

 

(e)

If a record date is fixed, unless notice of the record date is waived in writing by every holder of a share of the class or series affected whose name is set out in the Register at the close of business on the day the Directors fix the record date, notice thereof shall, not less than seven days before the date so fixed, be given

 

(i)

either (A) by advertisement in a newspaper published or distributed in the place where the Company has its Office and in each place in Canada where it has a transfer agent or where a transfer of its shares may be recorded; or (B) as may be otherwise permitted under applicable securities law and the Act; and

 

(ii)

by written notice to each stock exchange in Canada on which the shares of the Company are listed for trading.

 

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ALTERATION OF CAPITAL

 

52.

Subject to the Act, the Reorganization Act, the provisions of this Article and Part B of these Articles, and the rights, if any, under the Act or other applicable law, of the holders of shares of any class or series of shares to vote separately as a class or series thereon, the Company may by resolution of its shareholders, add, change or remove any provision of its Memorandum to increase its share capital by the creation of new shares of such amount as it thinks expedient and may by special resolution, add, change or remove any provision of its Memorandum to:

 

(a)

increase its share capital to authorize a new class of shares without nominal or par value, either stating the maximum number of shares of such class that the Company is authorized to issue or, where there is no limit on the number of shares of such class, a statement to that effect;

 

(b)

change the maximum number of shares of a class of shares without nominal or par value that the Company is authorized to issue, which may include a change to or from an unlimited number of shares of that class;

 

(c)

consolidate and divide all or any of its share capital into shares of larger amounts than its existing shares;

 

(d)

change the shares of any classes, whether issued or unissued, into a different number of shares of the same class or into the same or different number of shares of another class;

 

(e)

convert all or any of its paid-up shares into stock and reconvert that stock into paid-up shares of any denomination or into shares without nominal or par value;

 

(f)

subdivide its shares, or any of them, into shares of smaller amounts than is fixed by the Memorandum, so, however, that in the subdivision the proportion between the amount paid and the amount, if any, unpaid on each reduced share shall be the same as it was in the case of the share from which the reduced share is derived, and the special resolution whereby any share is subdivided may determine that as between the holders of the shares resulting from such subdivision, one or more of such shares shall have some preference or special advantage as regards dividend, capital, voting or otherwise, over, or as compared with, the others or other;

 

(g)

exchange shares of one denomination for another, including shares without nominal or par value;

 

(h)

convert any part of its issued or unissued share capital into preferred shares redeemable or purchasable by the Company;

 

(i)

except in the case of preferred shares, convert all or any of its previously authorized unissued or issued and fully paid-up shares with nominal or par value into the same number of shares without any nominal or par value and reduce, maintain or increase accordingly its liability on any of its shares so converted, but the power to reduce its liability on any of its shares so converted where it results

 

11

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in a reduction of paid-up capital may only be exercised in accordance with any applicable restriction in the Act;

 

(j)

convert all or any of its previously authorized, unissued or issued, fully paid-up shares without nominal or par value into the same or a different number of shares with nominal or par value, and for such purpose the shares issued without nominal or par value and replaced by shares with a nominal or par value shall be considered as fully paid, but their aggregate par value shall not exceed the value of the net assets of the Company as represented by the shares without par value issued before the conversion;

 

(k)

change the designation of all or any of its shares and add, change or remove any rights, privileges, restrictions or conditions including rights to accrued dividends, in respect of all or any of the shares, whether issued or unissued; or

 

(l)

make any change or do anything which is permitted by, or not restricted by, the Act.

 

53.

Subject to the Act, the Company may by resolution of its shareholders, add, change or remove any provision of its Memorandum to cancel shares that at the date of the passing of the resolution in that behalf, have not been taken or agreed to be taken by any person, and diminish the amount of its share capital by the amount of the shares so cancelled.

 

54.

Where the shares of a class are issued in series, and any designation, rights, privileges, restrictions or conditions attaching to any series of such shares are set out in the Memorandum, all provisions of these Articles respecting the creation, amendment, exchange, cancellation or other change of shares of any class, apply thereto.

 

55.

Subject to the Act, the Reorganization Act, the provisions of this Article and Part B of these Articles, and the rights, if any, under the Act or other applicable law, of the holders of shares of any class or series of shares to vote separately as a class or series thereon and the restrictions on allotment and issuance in these Articles and the Memorandum, any shares authorized to be issued may be issued upon such terms and conditions and with such rights, privileges, limitations, restrictions and conditions attached thereto as the Company by resolution of its shareholders shall direct or, if no direction is given, as the Directors determine, and in particular such shares may be issued with a preferential or qualified right to dividends and in the distribution of assets of the Company, and with a special right, or without any right, of voting. Except as otherwise provided by the conditions of issue, or by these Articles, any capital raised by the creation of new shares shall be considered part of the original capital and shall be subject to the provisions herein contained with reference to payment of calls and instalments, transfer and transmission, forfeiture, surrender, lien and otherwise.

REDEMPTION OF SHARES AND OTHER REDUCTIONS OF CAPITAL

 

56.

Subject to the Act, the Reorganization Act, the provisions of this Article and Part B of these Articles, and the rights, if any, under the Act or other applicable law, of the holders of shares of any class or series of shares to vote separately as a class or series thereon, the Company may reduce all or a portion of the paid-up capital on a class or series of shares, or certain shares of such class or series of shares, in any way and for any purpose. Where such reduction of paid-up capital is so authorized, the shareholders approving such

 

12

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reduction may in such authorizing resolution determine when the paid-up capital shall be reduced on the shares of the particular class or series of shares, or certain shares of such class or series of shares, the amount of paid-up capital to be reduced on each such share (where such does not necessarily follow from the determination of the amount reduced on the class or series as a whole) and the manner in which and purpose for which such reduction shall be effected. If the shareholders fail to determine any such matter in such resolution they may subsequently determine such matter by special resolution, failing which the Directors, or such persons as may be authorized by the shareholders by special resolution, may make any such determination or determinations not inconsistent with a prior determination of the shareholders as may be necessary or desirable from time to time. The manner in which or purpose for which the reduction shall be effected may include, without limitation, any of the following:

 

(a)

reducing or extinguishing any liability of the holders of any shares of any class or series including, without limitation, extinguishing or reducing the liability on any of such shares not paid-up;

 

(b)

either with or without extinguishing or reducing liability on shares of any class or series, paying or distributing to the holder of an issued share of any such class or series of shares an amount not exceeding the paid-up capital thereof;

 

(c)

declaring its paid-up capital to be reduced, without payment or distribution, by an amount that is lost or unrepresented by realizable assets, or by such other amount as the Company may see fit;

 

(d)

paying cash or transferring other property;

 

(e)

issuing other securities, debentures, bonds, securities, promissory notes or other indebtedness;

 

(f)

increasing any share premium, contributed surplus or other surplus account; or

 

(g)

providing a sinking fund on any terms thought fit for the redemption, purchase or acquisition of shares of any class or series.

Without limiting the foregoing but subject to the Act and any provisions attached to such shares, the Company may redeem, purchase or acquire any of its shares and the Directors may determine the manner and the terms for redeeming, purchasing or acquiring such shares and may provide a sinking fund on such terms as they think fit for the redemption, purchase or acquisition of shares of any class or series.

 

57.

The amount of the reduction in the paid-up capital of the class or series of shares, or certain shares of such class or series of shares, including upon the purchase or redemption of any shares acquired by the Company, shall be recorded, or shall be deemed to have been recorded, in the accounts of the Company maintained or deemed to be maintained for such class or series of shares. Where the Company has issued more than one class or series of shares, the special resolution authorizing the reduction in paid-up capital must specify the capital account or accounts from which the paid-up capital returned, cancelled or otherwise extinguished will be deducted.

 

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MODIFICATION OF RIGHTS OF SHAREHOLDERS

 

58.

The rights, privileges, restrictions and conditions attached to a class or series of shares may be added to, changed or removed only with the prior approval of the holders of the issued shares of that class or series given as specified herein, in addition to any vote or authorization required by law. Any approval of the holders of the shares with respect to the modification of the rights, privileges, restrictions, and conditions attached to the shares may be given in such manner as may then be required by law, subject to a minimum requirement that such approval either (i) be given by resolution signed by all the holders of the issued and outstanding shares of the class or series, or (ii) passed by the affirmative vote of at least two-thirds of the votes cast by the holders of the shares who voted in respect of that resolution at a meeting of the holders of the shares duly called for that purpose at which the holders of at least fifty percent (50%) of the outstanding shares of that class or series are present in person or represented by proxy, or, if such quorum is not present at such meeting, at an adjournment thereof at which the holders of shares of that class or series then present in person or represented by proxy shall constitute a quorum for all purposes. The formalities to be observed with respect to proxies, the giving of notice, voting, and the conduct of any such meeting or any adjourned meeting shall be those from time to time prescribed by these Articles or otherwise prescribed by law with respect to meetings of shareholders. Notwithstanding the foregoing, unless the rights, privileges, terms or conditions attached to a class or series of shares provide otherwise, the holders of shares of a class or of a series are not entitled to vote separately as a class or series to amend the Memorandum or these Articles to,

 

(a)

increase or decrease any maximum number of authorized shares of such class or series, or increase any maximum number of authorized shares of a class or series having rights or privileges equal or superior to the shares of such class or series;

 

(b)

effect an exchange, reclassification or cancellation of all or part of the shares of such class or series; or

 

(c)

create a new class or series of shares equal or superior to such class or series.

This Article shall not be deemed by implication to limit, restrict or curtail the power of modification which the Company would have if this Article were omitted.

SURRENDER OF SHARES

 

59.	The Directors may accept the surrender of any share by way of compromise of any question as to the holder being properly registered in respect thereof. Any share so surrendered may be disposed of in the same manner as a forfeited share.

BORROWING POWERS AND POWER OF GUARANTEE

 

60.	The Directors on behalf of the Company may from time to time in their discretion:

 

(a)

raise or borrow funds for any of the purposes of the Company;

 

(b)

secure the repayment of funds so raised or borrowed in such manner and upon such terms and conditions in all respects as they think fit, and in particular by the execution and delivery of mortgages of the Company’s real or personal property,

 

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or by the issue of bonds, debentures or other securities of the Company secured by mortgage or other charge upon all or any part of the property of the Company, both present and future, including its uncalled capital for the time being;

 

(c)

sign or endorse bills, notes, acceptances, cheques, contracts, and other evidence of or securities for funds borrowed or to be borrowed for the purposes aforesaid; and

 

(d)

pledge debentures as security for loans.

 

61.	Bonds, debentures and other securities may be made assignable, free from any equities between the Company and the person to whom such securities were issued.

 

62.	Any bonds, debentures and other securities may be issued at a discount, premium or otherwise and with special privileges as to redemption, surrender, drawings, allotments of shares, attending and voting at general meetings of the Company, appointment of Directors and other matters.

 

63.	The Directors may, from time to time and in their discretion:

 

(a)

guarantee on behalf of the Company the performance of liabilities, contracts and loans of any kind whatsoever, and give any postponements required in connection with such a guarantee; and

 

(b)

delegate authority to such officers and Directors of the Company and on such terms and conditions as they, in their sole discretion determine appropriate, to provide guarantees on behalf of the Company as set out in the preceding sub-paragraph including to give any postponements required in connection with such guarantees.

MEETINGS

 

64.

Annual general meetings of the Company shall be held at least once in every calendar year at such time and place as may be determined by the Directors and not later than fifteen months after the preceding annual general meeting of the Company. All other meetings of the Company shall be called special general meetings. Annual or special general meetings may be held either within or without the Province of Nova Scotia.

 

65.

The Directors may whenever they think fit, convene a special general meeting and they shall, upon the requisition of shareholders of the Company holding not less than five percent of the issued share capital of the Company in respect of whose shares all calls or other sums then due have been paid, or otherwise as provided in the Act, forthwith proceed to convene a special general meeting of the Company, to be held at such time and place as the Directors determine.

 

66.	The requisition shall state the objects of the meeting requested, be signed by the shareholders making it and deposited at the Office. It may consist of several documents in like form each signed by one or more of the requisitionists.

 

67.	If the Directors do not proceed to cause a meeting to be held within twenty-one days (21) days from the date that the requisition is so deposited, or within such longer period as may

 

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be permitted by applicable law, the requisitionists, or a majority of them in value, may themselves convene a meeting, provided it is held within three (3) months after the date of the deposit of the requisition.

 

68.

 

(a)

No business may be transacted at an annual general meeting of shareholders, other than business that is either (i) specified in the Company’s notice of meeting (or any supplement thereto) given by or at the direction of the Board, (ii) otherwise properly brought before the annual general meeting by or at the direction of the Board or (iii) otherwise properly brought before the annual general meeting by any shareholder of the Company who complies with the proposal procedures set forth in this Article 68. For business to be properly brought before an annual general meeting by a shareholder of the Company, such shareholder must submit a proposal to the Company for inclusion in the Company’s management proxy circular; provided that any proposal that includes nominations for the election of Directors shall be submitted to the Company in accordance with the requirements set forth in Article 69.

 

(b)

At a special general meeting of shareholders, only such business shall be conducted as shall have been brought before the meeting pursuant to the Company’s notice of meeting (or any supplement thereto) given by or at the direction of the Board. Nominations of persons for election to the Board of Directors may be made at a special general meeting of shareholders at which Directors are to be elected pursuant to the Company’s notice of meeting only pursuant to and in compliance with Article 69.

 

69.

 

(a)

Only individuals who are nominated in accordance with the procedures set out in this Article 69 and who, at the discretion of the Board, satisfy the qualifications of a Director as set out in applicable law and these Articles shall be eligible for election as Directors of the Company at any general meeting of shareholders of the Company. Nominations of individuals for election to the Board of Directors of the Company may be made at any annual general meeting of shareholders, or at any special general meeting of shareholders if one of the purposes for which the special general meeting was called was the election of Directors:

 

(i)

by or at the direction of the Board, including pursuant to a notice of meeting;

 

(ii)

by or at the direction or request of one or more shareholders pursuant to a requisition of the shareholders made in accordance with the Act; or

 

(iii)

by any person (a “Nominating Shareholder”) who

 

(A)

at the close of business on the date of the giving of the notice provided for below in this Article 69 and on the record date for notice of such meeting, is a registered holder of shares carrying the right to vote at such meeting on the election of Directors; and

 

(B)

complies with the notice procedures set forth in this Article 69.

 

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(b)

In addition to any other applicable requirements, for a nomination to be made by a Nominating Shareholder, the Nominating Shareholder must have given timely notice thereof and in proper written form to the Secretary of the Company at the Office.

 

(c)

To be timely, a Nominating Shareholder’s notice to the Secretary must be made within the applicable period described below:

 

(i)

in the case of an annual general meeting of shareholders, not less than 30 days prior to the date of the annual general meeting of shareholders; provided, however, that if the annual general meeting of shareholders is to be held on a date that is less than 50 days after the date (in this Article, the “Notice Date”) on which the first public announcement of the date of the annual general meeting was made, notice by the Nominating Shareholder may be made not later than the 10th day following the Notice Date; and

 

(ii)

in the case of a special general meeting (which is not also an annual general meeting) of shareholders called for the purpose of electing Directors (whether or not called for other purposes), not later than the 15th day following the day on which the first public announcement of the date of the special meeting of shareholders was made.

 

(d)

To be in proper written form, a Nominating Shareholder’s notice to the Corporate Secretary must set forth

 

(i)

as to each individual whom the Nominating Shareholder proposes to nominate for election as a Director

 

(A)

the name, age, business address and residential address of the individual;

 

(B)

the principal occupation or employment of the individual;

 

(C)

the class or series and number of shares in the capital of the Company which are beneficially owned, or over which control or direction is exercised, directly or indirectly, by such individual as of the record date for the meeting of shareholders (if such date shall then have been made publicly available and shall have occurred) and as of the date of such notice; and

 

(D)

any other information relating to the individual that would be required to be disclosed in a dissident’s proxy circular or other filings to be made in connection with solicitations of proxies for election of Directors pursuant to applicable laws, including applicable securities laws; and

 

(ii)

as to the Nominating Shareholder and any beneficial owner respecting which the notice was given, the names of such person(s) and

 

(A)

the class or series and number of shares in the capital of the Company which are controlled, or over which control or direction is

 

17

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exercised, directly or indirectly, by such person(s) and each person acting jointly or in concert with any of them (and for each such person any options or other rights to acquire shares in the capital of the Company, derivatives or other securities, instruments or arrangements for which the price or value or delivery, payment or settlement obligations are derived from, referenced to, or based on any such shares, hedging transactions, short positions and borrowing or lending arrangements relating to such shares) as of the record date for the meeting of shareholders (if such date shall then have been made publicly available and shall have occurred) and as of the date of such notice;

 

(B)

any proxy, contract, agreement, arrangement, understanding or relationship pursuant to which such Nominating Shareholder or beneficial owner has a right to vote any shares in the capital of the Company on the election of Directors;

 

(C)

in the case of a special general meeting of shareholders called for the purpose of electing Directors, a statement as to whether the Nominating Shareholder intends to send an information circular and form of proxy to any shareholders of the Company in connection with any individual’s nomination; and

 

(D)

any other information relating to such Nominating Shareholder or beneficial owner that would be required to be made in a dissident’s proxy circular or other filings to be made in connection with solicitations of proxies for election of Directors pursuant to the Act and applicable securities laws.

 

(e)

A Nominating Shareholder’s notice to the Corporate Secretary must also state whether

 

(i)

in the opinion of the Nominating Shareholder and the proposed nominee, the proposed nominee would qualify to be an independent Director of the Company under Sections 1.4 and 1.5 of National Instrument 52-110 of the Canadian Securities Administrators (“NI 52-110”); and

 

(ii)

with respect to the Company the proposed nominee has one or more of the relationships described in Sections 1.4(3), 1.4(8) and 1.5 of National NI 52-110 and, if so, which ones.

 

(f)

The chair of the meeting shall have the power and duty to determine whether a nomination was made in accordance with the procedures set forth in the foregoing provisions and, if any proposed nomination is not in compliance with such foregoing provisions, to declare that such defective nomination shall be disregarded. A duly appointed proxy holder of a Nominating Shareholder shall be entitled to nominate at a meeting of shareholders the Directors nominated by the Nominating Shareholder, provided that all of the requirements of this Article 69 have been satisfied. If the Nominating Shareholder or its duly appointed proxy holder does not attend at the meeting of shareholders to present the nomination,

 

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the nomination shall be disregarded notwithstanding that proxies in respect of such nomination may have been received by the Company.

 

(g)

In addition to the provisions of this Article 69, a Nominating Shareholder and any individual nominated by the Nominating Shareholder shall also comply with all of the applicable requirements of the Act, applicable securities laws and applicable stock exchange rules regarding the matters set forth herein.

 

(h)

For purposes of this Article 69, “public announcement” shall mean disclosure in a news release reported by a national news service in Canada, or in a document publicly filed by the Company at such location determined by the Board of Directors from time to time (including any web site or other virtual location).

 

(i)

Notwithstanding any other provision of the Company’s Articles, notice given to the Secretary of the Company pursuant to this Article 69 may only be given by personal delivery (at the Office of the Company) or by electronic mail (at the e-mail address set out in the Company’s issuer profile on the System for Electronic Document Analysis and Retrieval at www.sedar.com or such other location as may be determined by the Board of Directors from time to time), and shall be deemed to have been given and made only at the time it is so served by personal delivery to the Corporate Secretary of the Company or sent by e-mail to such e-mail address (provided that receipt of confirmation of such transmission has been received); provided that if such delivery or electronic communication is made on a day which is a not a business day or later than 5:00 p.m. (Halifax Time) on a day which is a business day, then such delivery or electronic communication shall be deemed to have been made on the next following day that is a business day.

 

(j)

Notwithstanding the foregoing, the board may, in its sole discretion, waive any requirement in this Article 69.

 

70.

At least twenty-one (21) days’ notice, or such shorter notice period as is fixed from time to time by the Directors and complies with all applicable laws, of every general meeting, specifying the place, day and hour of the meeting and, when special business is to be considered, the general nature of such business, shall be given to the shareholders entitled to be present at such meeting by notice given in accordance with the provisions of these Articles. Subject to any exemption authorized pursuant to the Act, when the Company is a reporting issuer it shall, concurrently with or prior to sending notice of a meeting of the Company, send a form of proxy to each shareholder who is entitled to receive notice of the meeting. With the consent in writing of all the shareholders entitled to vote at such meeting, a meeting may be convened by a shorter notice and in any manner the Directors think fit, or if all the shareholders are present at a meeting either in person or by proxy, notice of the time, place and purpose of the meeting may be waived. Any previously scheduled annual general meeting of shareholders may be postponed, and any shareholders’ meeting other than an annual general meeting of shareholders may be postponed or cancelled, by the Company by public notice given to the shareholders prior to the time previously scheduled for such meeting of shareholders.

 

71.	The accidental omission to give any such notice to any of the shareholders or the failure of any shareholder to receive such notice shall not invalidate any resolution passed at any general meeting.

 

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PROCEEDINGS AT GENERAL MEETINGS

 

72.

The business of any annual general meeting shall be to receive and consider the financial statements of the Company and the reports of the Directors and auditors thereon, to elect Directors in the place of those retiring, to appoint auditors, and to transact any other business which under these Articles ought to be transacted at an annual general meeting.

 

73.

If authorized by the Board in its sole discretion, and subject to any applicable law and such guidelines and procedures as the Board may adopt, shareholders and proxyholders not physically present at a meeting of shareholders may, by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately during the meeting, if the Company makes available such a communication facility: (a) participate in a meeting of shareholders; and (b) be deemed present in person at the meeting to the fullest extent permitted by law; and (c) vote at the meeting whether such meeting is to be held at a designated place or solely by means of a telephonic, electronic or other communication facility, provided that (i) the Company shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of a telephonic, electronic or other communication facility is a shareholder or proxyholder, (ii) the Company shall implement reasonable measures to provide such shareholders and proxyholders a reasonable opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings and to vote on matters submitted to the shareholders, and (iii) if any shareholder or proxyholder votes or takes other action at the meeting by means of a telephonic, electronic or other communication facility, a record of such vote or other action shall be maintained by the Company.

 

74.

No business shall be transacted at any general meeting unless the quorum requisite is present at the commencement of the business. A body corporate that is a member of the Company and has a duly authorized agent or representative present at any such meeting shall for the purpose of this Article be deemed to be personally present at such meeting.

 

75.

Three members, where there are more than two members, personally present and entitled to vote shall be a quorum for a general meeting for the choice of a chair and the adjournment of the meeting. For all other purposes the quorum for a general meeting shall be three members personally present and entitled to vote and holding or representing by proxy not less than twenty-five per cent of such of the issued shares of the Company as confer upon the holders thereof the right to vote at such meeting.

 

76.

Unless otherwise determined by the Board, the Chair of the Board shall be entitled to take the chair at every general meeting or, if there be no Chair of the Board, or if the Chair of the Board is not present within fifteen minutes after the time appointed for holding the meeting or declines to take the chair, the President, or if the President is not present within fifteen minutes after the time appointed for holding the meeting or declines to take the chair, a vice-president, shall be entitled to take the chair. If the Chair or the President or a vice-president is not present within fifteen minutes after the time appointed for holding the meeting or is present but declines to take the chair, the members present entitled to vote at the meeting shall choose another Director as chair of the meeting and, if no Director is present or if all the Directors present decline to take the chair, then the members present entitled to vote shall choose one of their number to be chair of the meeting.

 

77.	If within half an hour from the time appointed for the meeting a quorum is not present, the meeting, if it was convened pursuant to a requisition made pursuant to these Articles shall

 

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be dissolved; if it was convened in any other way, it shall stand adjourned to the same day, in the next week, at the same time and place. If at such adjourned meeting a quorum is not present, those members entitled to vote who are present shall be a quorum and may transact the business for which the meeting was called.

 

78.

Subject to the Act, at any general meeting a resolution put to the meeting may be decided by a show of hands unless, either before or on the declaration of the result of the show of hands, a poll is demanded by the chair, a member or a proxyholder; and unless a poll is so demanded, a declaration by the chair of the meeting that the resolution has been carried, carried by a particular majority, lost or not carried by a particular majority, and an entry to that effect in the Company’s book of proceedings shall be conclusive evidence of the fact without proof of the number or proportion of the votes recorded in favour or against such resolution.

 

79.

A poll shall be taken at the meeting in such manner as the chair of the meeting directs, and either at once or after an interval. The result of the poll shall be deemed to be the resolution of the meeting at which the poll was taken. The demand of a poll may be withdrawn. When any dispute occurs over the admission or rejection of a vote, it shall be resolved by the chair and such determination made in good faith shall be final and conclusive. The demand of a poll shall not prevent the continuance of a meeting for the transaction of any business other than the question on which a poll has been demanded.

 

80.	When on any motion there is an equality of votes, the motion shall fail.

 

81.

Any person entitled to vote at a general meeting where the Company has made available a telephonic, electronic or other communication facility for the purposes of attending and voting at such meeting may vote by means of the telephonic, electronic or other communication facility that the Company has made available for that purpose. Subject to any applicable law and such guidelines and procedures as the Board may adopt, any vote referred to in these Articles may be held entirely by means of a telephonic, electronic or other communication facility if the Company makes available such a communication facility, provided, in each case, that the facility: (i) enables the votes to be gathered in a manner that permits their subsequent verification; and (ii) permits the tallied votes to be presented to the Company.

 

82.	The chair of a general meeting may, and if so directed by the meeting must, adjourn the meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting that was adjourned.

VOTES OF MEMBERS

 

83.

Subject to the Reorganization Act and Part B of these Articles and the provisions applicable to any shares issued under conditions limiting or excluding the rights of the holders thereof to vote at general meetings, every member present in person or by proxy (including members deemed to be present) shall have one vote for every share held by such member. In computing the majority on a poll reference shall be had to the number of votes to which each member is entitled by their shares or by these Articles.

 

84.	Any person entitled under Article 48 to transfer any shares may vote at any general meeting in respect thereof in the same manner as if such person were the registered

 

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holder of such shares so long as the person, at least forty-eight hours before the time of holding the meeting or adjourned meeting at which the person proposes to vote, satisfies the Directors that such person has the right to transfer such shares.

 

85.

Where there are joint registered holders of any share, any one of such persons may vote such share at any meeting, either personally or by proxy, as if such person were solely entitled to it. If more than one of such joint holders is present and voting in person at any meeting, the one whose name stands first on the Register in respect of such share shall alone be entitled to vote it. Several executors or administrators of a deceased member in whose name any share stands shall for the purpose of this Article be deemed joint holders thereof.

 

86.	Votes may be cast either personally or by proxy or, in the case of a body corporate, by a representative duly authorized under the Act.

 

87.	A member of unsound mind in respect of whom an order has been made by any court having jurisdiction may vote by such member’s guardian or other person in the nature of a guardian appointed by that court and any such guardian or other person may vote by proxy.

 

88.

Subject to the Act, no member shall be entitled to be present or to vote on any question, either personally or by proxy or as proxy for another member, at any meeting or be recognized for the purposes of a quorum while any call or other sum is due and payable to the Company in respect of any of the shares of such member.

PROXIES

 

89.	A proxy shall be in writing and executed in the manner provided in the Act. A proxy or other authority of a corporate shareholder does not require its seal. The provisions of the Act, and the regulations made thereunder, relating to proxies shall otherwise apply to the Company.

 

90.

The chair of any meeting of shareholders may, but need not, at his or her sole discretion, make determinations as to the acceptability of proxies deposited for use at the meeting, including the acceptability of proxies which may not strictly comply with the requirements of these Articles as to form, execution, accompanying documentation or otherwise, and any such determination made in good faith shall be final and conclusive. A proxy and the power of attorney or other authority, if any, under which it is signed or a notarially certified copy of that power or authority shall be deposited at the Office of the Company or at such other place as the Directors may direct. The Directors may, by resolution, fix a time not exceeding 48 hours excluding Saturdays and holidays, preceding any meeting or adjourned meeting before which time proxies to be used at that meeting must be deposited with the Company at its Office or with an agent of the Company. Notice of the requirement for depositing proxies shall be given in the notice calling the meeting. The chair of the meeting shall determine all questions as to validity of proxies and other instruments of authority. No instrument appointing a proxy shall be valid after the expiration of twelve months from the date of its execution. Notwithstanding any specified time limits for the deposit of proxies by shareholders, the chair of any meeting or the Chair of the Board may, but need not, at his, her or their sole discretion, waive the time limits for the deposit of proxies by shareholders, including any deadline set out in the notice calling the meeting

 

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of shareholders or in any proxy circular, and any such waiver made in good faith shall be final and conclusive.

 

91.

A vote given in accordance with the terms of an instrument of proxy shall be valid notwithstanding the previous death of the principal, the revocation of the proxy, or the transfer of the share in respect of which the vote is given, provided no intimation in writing of the death, revocation or transfer is received at the Office of the Company before the meeting or by the chair of the meeting before the vote is given.

 

92.

Subject to Articles 90 and 94, every proxy may be revoked by an instrument in writing that is received: (a) at the Office at any time up to and including the last business day before the day set for holding of the meeting at which the proxy is to be used; or (b) by the chair of the meeting, at the meeting, before any vote in respect of which the proxy is to be used shall have been taken.

 

93.

An instrument referred to in Article 89 must be signed as follows: (a) if the shareholder for whom the proxy holder is appointed is an individual, the instrument must be signed by the shareholder or his or her legal personal representative; (b) if the shareholder for whom the proxy holder is appointed is a body corporate, the instrument must be signed by the body corporate or by a representative appointed for the body corporate.

 

94.

Every instrument of proxy, whether for a specified meeting or otherwise, shall be in such form as the Directors may from time to time determine and as required by law. Unless otherwise determined by the board in its sole discretion, no shareholder will be provided with access to any proxy materials relating to a meeting of shareholders prior to such meeting taking place. Upon the request of a shareholder not earlier than one day following a meeting of shareholders, the Company shall provide such shareholder with access to the proxies deposited with the Company in connection with such meeting.

RESOLUTIONS IN WRITING

 

95.

A resolution, including a special resolution, in writing and signed by every shareholder who would be entitled to vote on the resolution at a meeting is as valid as if it were passed by such shareholders at a meeting and satisfied all the requirements of the Act and these Articles respecting meetings of shareholders. A Resolution so passed shall be deemed to constitute a waiver of all notices required to have been given for that meeting. The signature of a shareholder which is a body corporate shall be evidenced by the signature of an officer or officers, director or directors of such body corporate, or other person or persons authorized by the body corporate.

DIRECTORS

 

96.

Unless otherwise determined by general meeting, the number of Directors shall be determined by the Board of Directors but shall not be less than eight nor more than fifteen provided however that the number of the members of the Board of Directors of the Company who are employees of the Company or of a subsidiary or affiliate of the Company shall not exceed two. No director may appoint any other person to act as his or her alternate to attend or vote at meetings of directors or otherwise act as a director in his or her absence.

 

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97.

The Directors shall have power to increase the number of Directors on the Board at any time and from time to time to appoint any one or more other persons as Directors so long as the total number of Directors does not at any time exceed the maximum number permitted in Article 96. No such appointment shall be effective unless two-thirds of the Directors concur in it.

 

98.

The Directors shall be paid out of the funds of the Company as remuneration for their service such sums, if any, as the Board may from time to time determine and such remuneration shall be divided among them in such proportions and in such manner as the Directors determine. Any remuneration so payable to a Director who is also an officer or employee of the Company or who is counsel or solicitor to the Company or otherwise serves it in a professional capacity may be in addition to the Director’s salary as an officer or professional fees as the case may be. In addition, the Board may by resolution from time to time award special remuneration out of the funds of the Company to any Director who performs or undertakes any special work or service for, or on behalf of, the Company outside the work or services ordinarily required of a Director of the Company. The Directors shall also be reimbursed for their out of pocket expenses incurred in attending Board, Committee or Shareholders’ meetings or otherwise in respect of the performance by them of their duties as the Board may from time to time determine. Notwithstanding Article 102, the Directors shall not be required to declare their interest in nor shall the Directors be prohibited from voting in respect of the determination of their remuneration in accordance with this Article.

 

99.

The continuing Directors may act notwithstanding any vacancy in their body, but if the number of Directors falls below the minimum permitted under these Articles, the Directors shall not, except in emergencies or for the purpose of filling up vacancies, act so long as the number is below the minimum. If the number of Directors falls below the quorum requirement under these Articles, nominees shall be proposed by the continuing Directors, or any committee established by them for the purpose, for election at a meeting of shareholders of the Company and called pursuant to the Act.

 

100.	A Director may, in conjunction with the office of Director, and on such terms as to remuneration and otherwise as the Directors arrange or determine, hold any other office or position in the Company or in any body corporate in which the Company is a shareholder or is otherwise interested.

 

101.	The office of a Director shall ipso facto be vacated:

 

(a)

if such Director becomes bankrupt or makes an assignment for the benefit of creditors; or

 

(b)

if such Director is found by a court of competent jurisdiction to be mentally incompetent or of unsound mind; or

 

(c)

if by notice in writing to the Company such Director resigns the office of Director; or

 

(d)

if such Director is removed by special resolution of the Company or as otherwise provided by law.

 

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DIRECTORS’ INTEREST IN CONTRACTS

 

102.

No Director shall be disqualified from contracting with the Company, either as vendor, purchaser, or otherwise, nor shall any such contract, or any contract or arrangement entered into or proposed to be entered into by or on behalf of the Company in which any Director is in any way interested, either directly or indirectly, be avoided, nor shall any Director so contracting or being so interested be liable to account to the Company for any profit realized by any such contract or arrangement by reason only of such Director holding office as a Director of the Company or of the fiduciary relation thereby established. However, the existence and nature of the Director’s interest must be declared by such Director at a meeting of the Directors of the Company unless the contract, arrangement or transaction is one involving the fixing of remuneration payable to the Directors in their capacities as Directors (herein referred to as an “Excluded Transaction”). In the case of a proposed contract or transaction, other than an Excluded Transaction, any Director with an interest in the contract or transaction shall declare the interest of such Director at the meeting of Directors at which the matter is first taken into consideration, or if the Director was not then interested, at the next meeting held after the Director became so interested. A general notice given to the Directors by a Director that the Director is a member, shareholder or Director of any specified firm or company and is to be regarded as interested in any transaction or contract with such firm or company shall be deemed to be a sufficient declaration under this Article and no further or other notice shall be required. No Director shall as a Director vote in respect of any contract or arrangement in which the Director is so interested, and if the Director does so vote, the vote shall not be counted. This prohibition may at any time or times be suspended or relaxed to any extent by a general meeting and shall not apply to any Excluded Transaction or any contract or arrangement by or on behalf of the Company to give to the Directors or any of them any security for advances or by way of indemnity.

ELECTION OF DIRECTORS

 

103.	Subject to the next following Article, at the dissolution of every annual general meeting all the Directors shall retire from office and be succeeded by the Directors elected at such meeting. Retiring Directors shall be eligible for re-election at such meeting.

 

104.

If at any annual general meeting at which an election of Directors ought to take place no such election takes place, or if no annual general meeting is held in any year or period of years, the retiring Directors shall continue in office until their successors are elected and a general meeting for that purpose may on notice be held at any time.

 

105.

The Directors, or a committee established by them for the purpose, may nominate, and provide to the annual general meeting, nominees to be elected or re-elected as Directors. The Directors or any such committee shall nominate individuals who, in the reasonable opinion of the Directors or such committee, shall have the ability to contribute to the broad range of issues with which the Directors must deal and who are able to devote the time necessary to prepare for and attend meetings of the Board and committees of the Board to which they may be appointed.

 

106.	The Company in general meeting may from time to time increase or reduce the number of Directors and may determine or alter their qualification.

 

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107.

The Company may, by special resolution or in any other manner permitted by law, remove any Director before the expiration of their period of office and appoint another person in their stead. The person so appointed shall hold office during such time only as the Director in whose place the person is appointed would have held office if the Director had not been removed.

 

108.

If at any time, a vacancy occurs on the Board as a result of a Director ceasing to be a Director, the Board of Directors shall fill such vacancy, after receiving a recommendation from the nominating committee (if any has been established), by the appointment as a Director of an individual who meets the requirements of Article 105.

CHAIR OF THE BOARD

 

109.

At the first meeting of the Directors of the Company following each annual general meeting of Shareholders, the Directors shall appoint a Chair of the Board from their number provided that such Chair is not an employee of the Company or of any subsidiary or affiliate of the Company. The Chair of the Board shall perform such duties and receive such special remuneration as the Board may from time to time provide. At any meeting of Directors and at any meeting of shareholders, the Chair of the Board shall not have a casting vote in the event of an equality of votes.

PRESIDENT, VICE PRESIDENT AND OTHER OFFICERS

 

110.

The Directors shall elect from their number the President of the Company and may determine the period for which he or she is to hold office. The President shall be the Chief Executive Officer of the Company and shall have general supervision of the business of the Company and shall perform such duties as may be assigned to him or her from time to time by the Board.

 

111.

The Directors may also appoint Vice-Presidents and determine the periods for which they are to hold office. A Vice-President need not be a Director and any Vice-President shall, at the request of the President or the Board and subject to the directions of the Board, perform the duties of the President during the absence, illness or incapacity of the President.

 

112.	The Directors may appoint such other officer or officers of the Company, having such powers and duties, as they see fit.

 

113.	If the Directors so decide, the same person may hold more than one of the offices provided for in these Articles.

PROCEEDINGS OF DIRECTORS

 

114.

The Directors may meet together for the dispatch of business, and adjourn and otherwise regulate their meetings and proceedings as they think fit, provided that no business shall be transacted unless there is a quorum. A quorum for a meeting of the Board of Directors shall be a majority of the Directors in office at the commencement of the meeting.

 

115.	Meetings of Directors may be held either within or without the Province of Nova Scotia and the Directors may from time to time make arrangements relating to the time and place

 

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of holding Directors’ meetings, the notices to be given for such meetings and what meetings may be held without notice. Unless otherwise provided by such arrangements:

(1) A meeting of Directors may be held at the close of every annual general meeting of the Company without notice.

(2) Notice of every other Directors’ meeting may be in writing and delivered by personal delivery, telex or facsimile transmission or electronic mail, or mailed, or may be given by telephone to each Director before the meeting is to take place. Such notice shall be delivered, transmitted, mailed or given by telephone at least forty-eight hours before the time fixed for the meeting.

(3) A meeting of Directors may be held without formal notice if all the Directors are present or if those absent have signified their assent to such meeting or their consent to the business transacted at such meeting.

(4) The accidental omission to give any such notice to any of the Directors or the failure of any Director to receive such notice shall not invalidate any resolution passed at any such meeting.

 

116.

A Director may participate in meetings of the Board and in meetings of a Committee of the Board by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting. For the avoidance of doubt, a meeting of the Board or of a committee of the Board may be held entirely by means of a telephonic, electronic or other communication facility. A director participating in a meeting by such means shall be deemed to be present at that meeting.

 

117.

The President or any other Director may at any time, and the Secretary, upon the request of the President or any other Director, shall summon a meeting of the Directors to be held at the Office of the Company. The Chair of the Board or a majority of the Board may at any time summon a meeting to be held elsewhere.

 

118.	Questions arising at any meeting of Directors shall be decided by a majority of votes and when, on any motion before the Board, there is an equality of votes, the motion shall fail.

 

119.

If no Chair of the Board is elected, or if at any meeting of Directors the Chair is not present within fifteen minutes after the time appointed for holding the meeting, or declines to take the chair, the President shall preside. If neither the Chair nor the President is present at such time and willing to take the chair, the Directors present shall choose some one of their number to chair the meeting.

 

120.	A meeting of the Directors at which a quorum is present shall be competent to exercise all or any of the authorities, powers and discretions for the time being vested in or exercisable by the Directors generally.

 

121.	Any Director participating in a meeting by a telephonic, electronic or other communication facility may vote by any reasonable means (including verbal assent) given the nature of such telephonic, electronic or other communication facility.

 

122.	A resolution in writing signed by all the Directors who would be entitled to vote thereon at a meeting of Directors shall be as valid and effectual as if it had been passed at a meeting

 

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of the Directors duly called and constituted. A resolution so effected shall be deemed to constitute a waiver of any notice required under these Articles or the Act to have been given for such a meeting.

COMMITTEES

 

123.

The Directors may establish from time to time such committees, including without limitation, an Executive Committee, an Audit Committee, a Nominating and Corporate Governance Committee, and a Management Resources and Compensation Committee, as the Directors think fit and entrust to and confer upon any such committee established such powers exercisable under these Articles by the Directors as they think fit, and may confer such powers for such time, and to be exercised for such objects and purposes and upon such terms and conditions, and with such restrictions as they think expedient; and they may confer such powers either collaterally with, or to the exclusion of, and in substitution for, all or any of the powers of the Directors in that behalf; and may from time to time revoke, withdraw, alter or vary all or any of such powers. Any committee so formed shall in the exercise of the powers so entrusted upon them conform to any rules or regulations that may be imposed on them by the Directors or by these Articles.

 

124.

The Directors, when establishing any committee, shall determine the membership thereof, which membership may include persons who hold a particular office or other position with the Company, if a director, from time to time. Members of committees shall have such terms of office as the Directors may establish or may serve at pleasure. The Directors may at any time and from time to time change the membership of any committee.

 

125.

At least a majority of members of any committee of Directors appointed by the Board shall be Directors who are not employees of the Company or of any subsidiary or affiliate of the Company. For greater certainty, unless expressly otherwise provided, the provisions of this Article apply to committees named in these Articles.

 

126.

The meetings and proceedings of any such committee consisting of two or more Directors shall be governed by the provisions contained in these Articles for regulating the meetings and proceedings of the Directors, including notice and quorum, insofar as they are applicable and are not superseded by any rules or regulations made by the Directors. The Directors may make any rules or regulations which they see fit to govern meetings and proceedings of any committee and shall not be limited by the provisions of these Articles.

 

127.

All acts done at any meeting of the Directors or of a committee of Directors or by any person acting as a Director shall, notwithstanding that it is afterwards discovered that there was some defect in the appointment of the Directors or persons so acting, or that they or any of them were disqualified, be as valid as if every such person had been duly appointed and was qualified to be a Director.

 

128.

A resolution in writing signed by all the members of any committee established hereunder shall be as valid and effectual as if it had been passed at a meeting of such committee duly called and constituted. A Resolution so effected shall be deemed to constitute a waiver of any notice required under these Articles or the Act to have been given for such a meeting.

 

129.	Subject to rules and regulations established by the Directors from time to time with respect to such committee or applying to committees generally:

 

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(a)

Any committee shall choose one of its own members to be its Chair and the secretary.

 

(b)

The times of and places where meetings of the committee shall be held and the calling of and procedure at such meetings, shall be determined from time to time by the committee.

 

(c)

The committee shall keep regular minutes of its proceedings and report to the Board as required.

 

130.

The members of any Audit Committee shall have the right for the purpose of performing their duties of inspecting all the books and records of the Company and its affiliates and of discussing such accounts and records and any matters relating to the financial position of the Company with the officers and auditors of the Company and its affiliates.

REGISTERS

 

131.

The Directors shall cause to be kept at the Office or as may otherwise be permitted in accordance with the Act, the Register, a register of holders of bonds, debentures and securities of the Company and a register of its Directors and may cause to be kept branch registers, including branch registers of holders of bonds, debentures and securities, either within or without the Province of Nova Scotia in accordance with the Act. The Directors may appoint one or more transfer agents to maintain the Register, and any other registers and branch registers of the Company at any place within Canada.

 

132.	The Directors shall:

 

(a)

ensure that the Register and all other registers required by these Articles to be prepared and maintained are in a bound or loose-leaf form or in a photographic film form or entered or recorded by any system of mechanical or electronic data processing or other information storage device that is capable of reproducing in Nova Scotia any required information in intelligible written form within a reasonable time and, where applicable, conforms to the provisions of the Act; and

 

(b)

cause the Company or its transfer agent to maintain within Nova Scotia an office or other facility at which the transfer of shares, bonds, debentures and securities of the Company may be effected.

MINUTES

 

133.	The Directors shall cause minutes to be entered in books designated for the purpose:

 

(a)

of all appointments of officers;

 

(b)

of the names of the Directors present at each meeting of Directors and of any committees of Directors;

 

(c)

of all orders made by the Directors and committees of Directors;

 

(d)

of all resolutions and proceedings of meetings of the Shareholders and of the Directors.

 

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134.

Any such minutes of any meeting of the Directors or of any committee of the Directors or of the Company, if purporting to be signed by the chair of such meeting or by the chair of the next succeeding meeting, shall be receivable as prima facie evidence of the matters stated in such minutes. The Directors shall cause the books containing the minutes of proceedings of any general meeting of the Company to be kept at the Company’s Office or at such other place or places as designated by the Directors as permitted by the Act.

 

135.	Any resolution of the Shareholders, the Directors, or a committee of the Directors, passed pursuant to the provisions of Articles 95, 122 or 128, shall be receivable as prima facie evidence of the matters stated therein.

POWER OF DIRECTORS

 

136.

The management of the business of the Company shall be vested in the Directors who, in addition to the powers and authorities by these Articles or otherwise expressly conferred upon them, may exercise all such powers and do all such acts and things as may be exercised or done by the Company and are not hereby or by statute expressly directed or required to be exercised or done by the Company in general meeting, but subject nevertheless to the provisions of any statute in that behalf and of the Memorandum and these Articles and to any regulations from time to time made by the Company in general meeting; provided that no regulation so made or modification of the Memorandum or these Articles shall invalidate any prior act of the Directors that would have been valid if such regulation or modification had not been made.

 

137.	Without restricting the generality of the terms of the last preceding Article and without prejudice to the powers conferred thereby, and the other powers conferred by these Articles, the Directors shall have power:

 

(a)

To take such steps as they think fit to carry out any agreement or contract made by or on behalf of the Company;

 

(b)

To pay the costs, charges and expenses preliminary and incidental to the promotion, formation, establishment, and registration of the Company;

 

(c)

To purchase or otherwise acquire for the Company any property, rights or privileges, stocks, bonds, debentures, or other securities (including shares in the capital stock of any other body corporate) that the Company is authorized to acquire, at such price and generally on such terms and conditions as they think fit;

 

(d)

At their discretion to pay for any property, rights, or privileges, stocks, bonds, debentures, or other securities (including shares in the capital stock of any other company) acquired by, or services rendered to the Company either wholly or partially in cash or in shares (fully paid up or otherwise), bonds, debentures or other securities of the Company;

 

(e)

To secure the fulfilment of any contracts or engagements entered into by the Company by mortgaging or charging all or any of the property of the Company and its unpaid capital for the time being, or in such other manner as they think fit;

 

(f)

To appoint, remove or suspend at their discretion such experts, managers, secretaries, treasurers, officers, clerks, agents and servants for permanent,

 

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temporary or special services, as they from time to time think fit, and to determine their powers and duties, and fix their salaries or emoluments and to require security in such instances and to such amounts as they think fit;

 

(g)

To accept from any member insofar as the law permits and on such terms and conditions as may be agreed upon a surrender of the member’s shares or any of them;

 

(h)

To appoint any person or persons (whether incorporated or not) to accept and hold in trust for the Company any property belonging to the Company, or in which it is interested, to execute and do all such deeds and things as may be requisite in relation to any such trust, and to provide for the remuneration of any such trustee or trustees;

 

(i)

To institute, conduct, defend, compound or abandon any legal proceedings by and against the Company, its Directors or its officers or otherwise concerning the affairs of the Company, and also to compound and allow time for payment or satisfaction of any debts due and of any claims or demands by or against the Company;

 

(j)

To refer any claims or demands by or against the Company to arbitration and observe and perform the award;

 

(k)

To make and give receipts, releases and other discharges for amounts payable to the Company and for claims and demands of the Company;

 

(l)

To determine who shall exercise the borrowing powers of the Company and sign on the Company’s behalf bonds, debentures or other securities, bills, notes, receipts, acceptances, assignments, transfers, hypothecations, pledges, endorsements, cheques, drafts, releases, contracts, agreements and all other instruments and documents;

 

(m)

To provide from time to time for the management of the affairs of the Company abroad in such manner as they think fit, and in particular to appoint any persons to be the attorneys or agents of the Company with such powers (including power to sub-delegate) and upon such terms as may be thought fit;

 

(n)

To invest and deal with any funds of the Company not immediately required for the purposes thereof in such securities and in such manner as they think fit; and from time to time to vary or realize such investments;

 

(o)

To execute in the name and on behalf of the Company in favour of any Director or other person who may incur or be about to incur any personal liability for the benefit of the Company such mortgages of the Company’s property, present and future, as they think fit, and any such mortgages may contain a power of sale and such other powers, covenants and provisions as are agreed on;

 

(p)

To give any officer or employee of the Company a commission on the profits of any particular business or transaction or a share in the general profits of the Company;

 

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(q)

To set aside out of the profits of the Company before declaring any dividend such amounts as they think proper as a reserve fund to meet contingencies or provide for dividends, depreciation, repairing, improving and maintaining any of the property of the Company and such other purposes as the Directors may in their absolute discretion think conducive to the interests of the Company; and to invest the amounts set aside in such investments, other than shares of the Company, as they may think fit, and from time to time to deal with and vary such investments, and to dispose of all or any part of them for the benefit of the Company, and to divide the reserve fund into such special funds as they think fit, with full power to employ the assets constituting the reserve fund in the business of the Company without being bound to keep them separate from the other assets;

 

(r)

From time to time to make, vary and repeal rules and regulations respecting the business of the Company, its officers and employees, the members of the Company or any section or class of them, and respecting any other matters contemplated by these Articles;

 

(s)

To enter into all such negotiations and contracts, rescind and vary all such contracts, and execute and do all such acts, deeds, and things in the name and on behalf of the Company as they may consider expedient for or in relation to any of the matters aforesaid or otherwise for the purposes of the Company;

 

(t)

From time to time to provide for the management of the affairs of the Company in such manner as they shall think fit;

 

(u)

Subject to the Act and the Memorandum, to sell, lease or otherwise dispose of any property, real or personal, undertaking, franchises, business, assets, interests or effects which the Company is authorized to sell, lease or otherwise dispose of, for such price or consideration and generally and on such terms and conditions as the Directors may think fit, and in particular but without limitation for shares, debentures or other securities of any body corporate having objects altogether or in part similar to those of this Company;

 

(v)

To delegate any of the duties of the Board to any standing or special committee, or to any manager or any other officer, attorney or agent, and to appoint any person to be the attorney or agent of the Company, with such powers, including the power to sub-delegate and upon such terms as they think fit.

SOLICITORS

 

138.

The Company may employ or retain a solicitor or solicitors and such solicitor may, at the request of the Board of Directors or on instructions of the Chair of the Board, or the President, attend meetings of the Directors or Shareholders, whether or not the solicitor is a member or a Director of the Company. If such solicitor is also a Director, the solicitor may nevertheless charge for services rendered to the Company as a solicitor.

SECRETARY

 

139.	The Directors shall appoint a Secretary of the Company to keep the minutes of the shareholders’ and Directors’ meetings and perform such other duties as may be assigned

 

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to the Secretary by the Board. The Directors may also appoint a temporary substitute for the Secretary who shall, for the purposes of these Articles, be deemed to be the Secretary.

THE SEAL

 

140.

 

(a)

The Common Seal may be affixed to any instrument (i) in the presence of and contemporaneously with the attesting signatures of two persons who are officers and/or Directors of the Company, or (ii) in the presence of and contemporaneously with the attesting signature of any one or more persons designated by and under the authority of a resolution of the Board of Directors or of a committee thereof. If the Company has only one Director and Officer the Common Seal may be affixed in the presence of and contemporaneously with the attesting signature of that Director and Officer. For the purpose of certifying documents or proceedings of the Company the Common Seal may be affixed by any one of the President, a Vice-President, the Secretary, an assistant secretary, any other officer of the Company or a Director.

 

(b)

The Company may have facsimiles of the Common Seal which may be used interchangeably with the Common Seal.

 

(c)

The Company may have for use at any place outside Nova Scotia as to all matters to which the corporate existence and capacity of the Company extends an official seal that is a facsimile of the Common Seal of the Company with the addition on its face of the name of the place where it is to be used; and the Company may by writing under its Common Seal authorize any person to affix such official seal to any document at such place to which the Company is a party, and may prescribe and limit the type of documents to which the official seal may be affixed by such person.

DIVIDENDS

 

141.

The Directors may from time to time declare such dividend as they deem proper upon the shares of the Company according to the rights of the members and the respective classes thereof, and may determine the date upon which such dividend will be payable and that it will be payable to the persons registered as the holders of such shares at the close of business upon the record date determined in accordance with Article 51. No transfer of such shares made or registered after the record date so specified shall pass any right to the dividend so declared.

 

142.	The Company may declare or pay an otherwise lawful dividend, including without limitation from profits, retained earnings or other surplus account. The Directors may from time to time pay to the members such interim dividends as in their judgment the position of the Company justifies.

 

143.	The Directors may deduct from the dividends payable to any member all such amounts as may be due and payable by the member to the Company on account of calls, instalments or otherwise, and may apply the same in or towards satisfaction of such amounts so due and payable.

 

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144.	The Directors may retain any dividends on which the Company has a lien, and may apply the same in or towards satisfaction of the debts, liabilities or engagements in respect of which the lien exists.

 

145.	The Directors may retain the dividends payable upon shares in respect of which any person is under Article 48 entitled to become a member, or which any person under that clause is entitled to transfer, until such person has become a member in respect of or has duly transferred such shares.

 

146.

Any meeting declaring a dividend may make a call on the members for such amount as the meeting fixes so long as the call on each member does not exceed the dividend payable to him or her. The call shall be made payable at the same time as the dividend and the dividend may, if so arranged between the Company and the member, be set off against the call. The making of a call under this Article shall be deemed to be and be business of a meeting which declares such a dividend.

 

147.

Any meeting declaring a dividend may resolve that such dividend be paid wholly or in part by the distribution of specific assets, paid up shares, debentures, bonds or other securities of the Company or paid up shares, debentures, bonds, or other securities of any other body corporate, or in any one or more of such ways.

 

148.

Any meeting may resolve that any cash, investments or other assets forming part of the undivided profits of the Company standing to the credit of the reserve fund or in the hands of the Company and available for dividends or representing premiums received on the issue of shares and standing to the credit of share premium account, be capitalized and distributed to the members who would be entitled to receive them if distributed by way of dividend and in the same proportions, that all or any part or such capitalized fund be applied on behalf of such members in paying up in full, either at par or at such premium as the resolution may provide, any unissued shares or debentures or other securities of the Company (which shall be distributed accordingly) or in or towards payment of the uncalled liability on any issued shares or debentures or other securities, and that such distribution or payment shall be accepted by such members in full satisfaction of their interest in such capitalized sum.

 

149.

For the purpose of giving effect to any resolution under the two last preceding Articles, the Directors may settle any difficulty that may arise in regard to the distribution as they think expedient, and in particular may issue fractional certificates, may fix the value for distribution of any specific assets, may determine that cash payments will be made to any members upon the footing of the value so fixed or that fractions of less value than $5.00 may be disregarded in order to adjust the rights of all parties, and may vest any such cash or specific assets in trustees upon such trusts for the persons entitled to the dividend or capitalized fund as may seem expedient to the Directors.

 

150.	A transfer of shares shall not pass the right to any dividend declared thereon after such transfer and before the registration of the transfer.

 

151.	Any one of several persons registered as the joint holder of any share may give effectual receipts for all dividends and payments on account of dividends in respect of such share.

 

152.	Unless otherwise determined by the Directors, any dividend may be paid by a cheque or warrant delivered to or sent through the mail to the registered address of the member

 

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entitled, or, when there are joint holders, to the registered address of the one whose name stands first on the Register for the shares jointly held. Every cheque or warrant so delivered or sent shall be made payable to the order of the person to whom it is delivered or sent.

 

153.	Notice of the declaration of any dividend, whether interim or otherwise, shall be given to the holders of registered shares in the manner hereinafter provided.

 

154.	All dividends unclaimed one year after having been declared may, until claimed, be invested or otherwise made use of by the Directors for the benefit of the Company.

ACCOUNTS

 

155.	The Directors shall cause proper books of account to be kept for the business of the Company. The books of account shall be kept at the head office of the company or at such other place or places as the Directors may direct.

 

156.

The Directors shall from time to time determine whether and to what extent and at what times and places and under what conditions or regulations the accounts and books of the Company or any of them shall be open to inspection of the members, and no member shall have any right of inspecting any account or book or document of the Company except as conferred by statute or authorized by the Directors or a resolution of the Company in general meeting.

 

157.	At the annual general meeting in every year the Directors shall lay before the Company the financial statements required by the Act and the reports to the members of the auditor, if any, and, if the Company is a reporting issuer, the report of the Directors required by the Act.

 

158.	The financial statements shall be approved by the Board and such approval shall be evidenced by the signatures on the balance sheet of two Directors or by the Director if there is only one.

 

159.

The Directors shall, not less than twenty-one (21) days before the date of the annual general meeting or within such shorter period as is fixed from time to time by the Directors and complies with all applicable laws, send copies of the financial statements together with copies of the auditor’s report, if any, and the report of the Directors, to members who have requested them and such persons as may be required to receive such financial statements and reports under the Act.

AUDITORS AND AUDIT

 

160.

Except in respect of a financial year for which the Company is exempt from the requirements of the Act regarding the appointment and duties of an auditor, an auditor shall be appointed and the auditor’s duties regulated in accordance with the Act. The Company may appoint as auditor any person, including a shareholder, not disqualified by the Act or other law. An auditor may be removed or replaced in the circumstances and in the manner specified in the Act. The Directors may fill any casual vacancy in the office of the auditor but while any such vacancy continues the surviving or continuing auditor or auditors, if any, may act.

 

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161.

The auditors shall conduct such audit as may be required by the Act and their report, if any, shall be dealt with by the Company as required by the Act. Every account of the Directors, when audited and approved by a general meeting as required by the Act, shall be conclusive, except as regards an error discovered therein within three months next after the approval thereof. Whenever any such error is discovered within the period, the account shall forthwith be corrected, and thenceforth shall be conclusive.

NOTICES

 

162.

A notice (including any communication or document) shall be sufficiently given, delivered or served by the Company upon a shareholder, Director, officer or auditor by personal delivery at such person’s registered address (or, in the case of a Director, officer or auditor, last known address) or by prepaid mail, telegraph, telex, facsimile machine or other electronic means of communication addressed to such person at such address.

 

163.	Shareholders who have no registered place of address shall not be entitled to receive any notice.

 

164.	Any notice required to be given by the Company to the shareholders, or any of them, and not expressly provided for by these Articles, shall be sufficiently given if given by advertisement.

 

165.	Any notice given by advertisement shall be advertised twice in a paper published in the place where the head office of the Company is situated, or if no paper is published there, then in any newspaper published in Halifax, Nova Scotia.

 

166.	All notices shall, with respect to any registered shares to which persons are jointly entitled, be given to whichever of such persons is named first in the Register for such shares, and notice so given shall be sufficient notice to all the holders of such shares.

 

167.

Any notice sent by mail shall be deemed to be given, delivered or served on the earlier of the day of actual receipt or the day following that upon which the letter, envelope or wrapper containing it is mailed, and in proving such service it shall be sufficient to prove that the letter, envelope or wrapper containing the notice was properly addressed and mailed with the postage prepaid thereon. Any notice given by electronic means of communication shall be deemed to be given when entered into the appropriate transmitting device for transmission. A certificate in writing signed on behalf of the Company that the letter, envelope or wrapper containing the notice was so addressed and mailed shall be conclusive evidence thereof. The foregoing provisions of this clause shall not apply to a notice of a meeting of the Directors.

 

168.

Every person who by operation of law, transfer or other means whatsoever becomes entitled to any share shall be bound by every notice in respect of such share that prior to such person’s name and address being entered on the Register was duly served in the manner herein before provided upon the person from whom the person derived title to such share.

 

169.

Any notice or document so advertised or delivered, sent or otherwise transmitted to the registered address of any member in pursuance of these Articles, shall, notwithstanding that such member is then deceased and that the Company has notice of such death, be deemed to have been served in respect of any registered shares, whether held by such

 

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deceased member solely or jointly with other persons, until some other person is registered instead of such deceased member as the holder or joint holder thereof, and such service shall for all purposes of these Articles be deemed a sufficient service of such notice or document on the deceased member’s heirs, executors or administrators and all persons, if any, jointly interested with the deceased member in any such share.

 

170.	Any notice may bear the name or signature, manual or reproduced, of the person giving the notice, written or printed.

 

171.	When a given number of days’ notice or notice extending over any other period is required to be given, the day of service and the day upon which such notice expires shall not, unless it is otherwise provided, be counted in such number of days or other period.

INDEMNITY

 

172.

 

(a)

The Company shall indemnify each Director and officer, each former Director and officer and each other individual who acts or acted at the Company’s request as a Director or officer or in a similar capacity of an Other Entity and their respective heirs and legal representatives against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by any such person in respect of any civil, criminal, administrative, investigative, arbitration, mediation, or other proceeding or investigation to which he is made a party or involved in by reason of being or having been a Director or officer of the Company or such Other Entity at the request of the Company or in a similar capacity, provided that:

 

(i)

the individual acted honestly and in good faith with a view to the best interests of the Company or, as the case may be, to the best interest of the Other Entity for which the individual acted as a Director or officer or in a similar capacity at the Company’s request; and

 

(ii)

in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the individual had reasonable grounds to believe that his conduct was lawful.

 

(b)

The Company shall, to the full extent permitted by law, advance funds to an individual referred to above for any costs, charges and expenses of a proceeding or investigation provided that such individual shall repay the funds advanced if the individual does not fulfill the conditions of indemnification set out in this Article.

 

(c)

The right of any person to indemnification granted hereunder is not exclusive of any other rights to which any person seeking indemnification may be entitled under any agreement, resolution or other vote of shareholders or Directors, at law or otherwise.

 

(d)

The amount for which any indemnity is proved shall immediately attach as a lien on the property of the Company and have priority as against the members over all other claims.

 

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(e)

For the purposes of this Article, the term “Other Entity” means any affiliate or subsidiary of the Company, and any other body corporate, corporation, limited liability company, partnership, joint venture, trust, unincorporated association, unincorporated organization, unincorporated syndicate or other enterprise in which the Company, directly or indirectly, now or in the future, holds an interest, whether in debt, equity or otherwise, for which the Director, officer or other individual serves or served as a Director or officer or in a capacity similar thereto at the request of the Company.

 

(f)

The Company is authorized to enter into an agreement evidencing and setting out the terms and conditions of an indemnity in favour of any of the persons referred to in this Article.

 

173.

No Director or officer of the Company shall, in the absence of any dishonesty on the part of such person, be liable for the acts, receipts, neglects or defaults of any other Director or officer, or for joining in any receipt or other act for conformity, or for any loss or expense happening to the Company through the insufficiency or deficiency of title to any property acquired by order of the Directors for or on behalf of the Company, or through the insufficiency or deficiency of any security in or upon which any of the funds of the Company are invested, or for any loss or damage arising from the bankruptcy, insolvency or tortious act of any person with whom any funds, securities or effects are deposited, or for any loss occasioned by error of judgment or oversight on the part of such person, or for any other loss, damage or misfortune whatsoever which happens in the execution of the duties of such person’s office or in relation thereto.

 

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PART B

OWNERSHIP AND VOTING RESTRICTIONS

INTERPRETATION

174.

 

(a)

In this Part B, all terms that are not defined have the meanings attributed to those terms in the Privatization Act and:

“directors’ determination” and similar expressions means a determination made by the directors of the Company in accordance with Article 185;

“excess voting shares” means voting shares held, beneficially owned or controlled in contravention of the individual share constraint;

“individual share constraint” has the meaning set forth in Article 175(a);

“principal stock exchange” means, at any time, the stock exchange in Canada on which the highest volume of voting shares is generally traded at that time, as determined by the directors of the Company;

“sell-down notice” has the meaning set forth in Article 178(a);

“shareholder default” has the meaning set forth in Article 178(a)(iv);

“shareholder’s declaration” means a declaration made in accordance with Article 186; and

“suspension” has the meaning set forth in Article 179(a) and “suspend”, “suspended” and similar expressions have corresponding meanings.

 

(b)

The provisions of subsections 8(3) and (8) of the Privatization Act are deemed to be incorporated in this Part B, with references therein to the “Company” deemed to be references to the Company. Any provision of this Part B that may be read in a manner that is inconsistent with the Privatization Act shall be read so as to be consistent therewith.

 

(c)

For greater certainty, no person is presumed to be an associate of any other person for purposes of paragraph 8(5)(g) of the Privatization Act solely by reason that one of them has given the other the power to vote or direct the voting of voting shares of a class of voting shares at a meeting of the holders of that class pursuant to a revocable proxy where the proxy is solicited solely by means of an information circular issued in a public solicitation of proxies that is made in respect of all voting shares of that class and in accordance with applicable law.

 

(d)

For the purposes of this Part B;

 

(i)

where voting shares of the Company are held, beneficially owned or controlled by two or more persons jointly, the number of voting shares held, beneficially owned or controlled by each such person shall include the

 

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number of voting shares held, beneficially owned or controlled jointly with such other persons; and

 

(ii)

references to shares “of” a person are to shares held, beneficially owned or controlled, directly or indirectly, otherwise than by way of security only, by that person.

 

(e)

In this Part B, except where the context requires to the contrary, words importing the singular shall include the plural and vice versa and words importing gender shall include masculine, feminine and neuter genders.

INDIVIDUAL SHARE CONSTRAINT

175.

 

(a)

No person, together with the associates of that person, shall hold, beneficially own or control, directly or indirectly, otherwise than by way of security only, in the aggregate voting shares to which are attached more than 15 per cent of the votes that may ordinarily be cast to elect directors of the Company. (The foregoing prohibition is referred to in this Part Bas the “individual share constraint”.)

 

(b)

In the event that it appears from the register of members of the Company that any person, together with the associates of that person, is in contravention of the individual share constraint:

 

(i)

the Company shall not accept any subscription for voting shares from that person or any associate of that person;

 

(ii)

the Company shall not issue any voting shares to that person or any associate of that person; and

 

(iii)

the Company shall not register or otherwise recognize the transfer of any voting shares to that person or any associate of that person.

 

(c)

In the event of a directors’ determination that any person, together with the associates of that person, is in contravention of the individual share constraint:

 

(i)

the Company shall not accept any subscription for voting shares from that person or any associate of that person;

 

(ii)

the Company shall not Issue any voting shares to that person or any associate of that person;

 

(iii)

the Company shall not register or otherwise recognize the transfer of any voting shares to that person or any associate of that person;

 

(iv)

no person may, in person or by proxy, exercise the right to vote any of the voting shares of that person or of any associate of that person;

 

(v)

subject to Article 184(a), the Company shall not declare or pay any dividend, and or make any other distribution:

 

40

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(A)

on any of the excess voting shares of that person or of any associate of that person; or

 

(B)

if the directors of the Company determine that the contravention of the individual ownership constraint was intentional and that it would not be inequitable to do so, on all of the voting shares of that person and of each associate of that person;

and any entitlement to such dividend or other distribution shall be forfeited; and

 

(vi)

the Company shall send a sell-down notice to the registered holder of the voting shares of that person and of each associate of that person.

 

(d)

In the event that it appears from the register of members of the Company that, or in the event of a directors’ determination that, any person, together with the associates of that person, after any proposed subscription, issue or transfer of voting shares, would be in contravention of the individual share constraint, the Company shall not:

 

(i)

accept the proposed subscription for voting shares from;

 

(ii)

issue the proposed voting shares to; or

 

(iii)

register or otherwise recognize the proposed transfer of any voting shares to;

that person or any associate of that person.

 

(e)

In the event of a directors’ determination that during any period any person, together with the associates of that person, was in contravention of the individual share constraint, the directors of the Company may also determine that:

 

(i)

any votes cast, in person or by proxy, during that period in respect of the voting shares of that person or of any associate of that person shall be disqualified and deemed not to have been cast; and

 

(ii)

subject to Article 184(a), each of that person and the associates of that person is liable to the Company to restore to the Company the amount of any dividend paid or distribution received during that period on:

 

(A)

the excess voting shares of that person and of each associate of that person; or

 

(B)

if the directors of the Company determine that the contravention of the individual ownership constraint was intentional and that it would not be inequitable to do so, on all of the voting shares of that person and of each associate of that person.

 

41

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176.	[INTENTIONALLY DELETED]

 

177.	[INTENTIONALLY DELETED]

SELL-DOWN NOTICE

178.

 

(a)

Any notice (a “sell-down notice”) required to be sent to a registered holder of voting shares pursuant to Article 175(c)(vi):

 

(i)

shall specify in reasonable detail the nature of the contravention of the individual share constraint, the number of voting shares determined to be excess voting shares and the consequences of the contravention specified in Article 175;

 

(ii)

shall request an initial or further shareholder’s declaration;

 

(iii)

shall specify a date, which shall be not less than 45 days (or such shorter period as is fixed from time to time by the Directors and complies with all applicable laws) after the date of the sell-down notice, by which the excess voting shares are to be sold or disposed of; and

 

(iv)

shall state that unless the registered holder either:

 

(A)

sells or otherwise disposes of the excess voting shares by the date specified in the sell-down notice on a basis that does not result in any contravention of the individual share constraint and provides to the Company, in addition to the shareholder’s declaration requested pursuant to Article 178(a)(ii), written evidence satisfactory to the Company of such sale or other disposition; or

 

(B)

provides to the Company, in addition to the shareholder’s declaration requested pursuant to the Article 178(a)(ii), written evidence satisfactory to the Company that no such sale or other disposition of excess voting shares is required;

such default (a “shareholder default”) shall result in the consequence of suspension pursuant to Article 179 and may result in the consequence of sale in accordance with Article 180 or redemption in accordance with Article 181, in each case without further notice to the registered holder, and shall specify in reasonable detail the nature and timing of those consequences.

 

(b)

In the event that, following the sending of a sell-down notice, written evidence is submitted to the Company for purposes of Article 178(a)(iv)(B), the Company shall assess the evidence as soon as is reasonably practicable and in any event shall give a second notice to the person submitting the evidence not later than 10 days after the receipt thereof stating whether the evidence has or has not satisfied the Company that no sale or other disposition of excess voting shares is required. If

 

42

---

the evidence has so satisfied the Company, such sell-down notice shall be cancelled and such second notice shall so state. If the evidence has not so satisfied the Company, such second notice shall reiterate the statements required to be made in such sell-down notice pursuant to Articles 178(a)(iii) and (iv). In either case, the applicable periods referred to in Article 178(a)(iii) shall be automatically extended to the end of the 10 day period referred to in this Article 178(b) if such 10 day period extends beyond such otherwise applicable period.

SUSPENSION

179.

 

(a)

In the event of a shareholder default in respect of any registered holder of voting shares, then, without further notice to the registered holder:

 

(i)

all of the voting shares of the registered holder shall be deemed to be struck from the register of members of the Company;

 

(ii)

no person may, in person or by proxy, exercise the right to vote any of such voting shares;

 

(iii)

subject to Article 184(a), the Company shall not declare or pay any dividend, or make any other distribution, on any of such voting shares and any entitlement to such dividend or other distribution shall be forfeited;

 

(iv)

the Company shall not send any form of proxy, information circular or financial statements of the Company or any other communication from the Company to any person in respect of such voting shares; and

 

(v)

no person may exercise any other right or privilege ordinarily attached to such voting shares.

(All of the foregoing consequences of a shareholder default are referred to in this Part B as a “suspension”.) Notwithstanding the foregoing, a registered holder of suspended voting shares shall have the right to transfer such voting shares on any securities register of the Company on a basis that does not result in contravention of the individual share constraint.

 

(b)

The Directors of the Company shall cancel any suspension of voting shares of a registered holder and reinstate the registered holder to the register of members of the Company for all purposes if they determine that, following the cancellation and reinstatement, none of such voting shares will be held, beneficially owned or controlled in contravention of the individual share constraint. For greater certainty, any such reinstatement shall permit, from and after the reinstatement, the exercise of all rights and privileges attached to the voting shares so reinstated but, subject to Article 184(a), shall have no retroactive effect.

 

43

---

SALE

180.

 

(a)

In the event of a shareholder default in respect of any registered holder of voting shares, the Company may elect by directors’ determination to sell, on behalf of the registered holder, the excess voting shares thereof, without further notice thereto, on the terms set forth in this Article 180 and Article 182.

 

(b)

The Company may sell any excess voting shares in accordance with this Article 180:

 

(i)

on the principal stock exchange; or

 

(ii)

if there is no principal stock exchange, on such other stock exchange or organized market on which the voting shares are then listed or traded as the directors of the Company shall determine; or

 

(iii)

if the voting shares are not then listed on any stock exchange or traded on any organized market, in such other manner as the directors of the Company shall determine.

 

(c)

The net proceeds of sale of excess voting shares sold in accordance with this Article 180 shall be the net proceeds after deduction of any commission, tax or other cost of sale.

 

(d)

For all purposes of a sale of excess voting shares in accordance with this section, the Company is the agent and lawful attorney of the registered holder and the beneficial owner of the excess voting shares.

REDEMPTION

181.

 

(a)

For the purposes of enforcing the ownership restrictions and constraints imposed pursuant to the foregoing articles and the Reorganization Act, in the event of a shareholder default in respect of any registered holder of voting shares and in the event that the Directors of the Company determine either that the Company has used reasonable efforts to sell excess voting shares in accordance with Article 180 but that such sale is impracticable or that it is likely that such sale would have material adverse consequences to the Company or the holders of voting shares, the Company may, notwithstanding section 51 of the Act, elect by directors’ determination, to redeem the excess voting shares thereof, without further notice thereto, on the terms set forth in this Article 181 and Article 182.

 

(b)

The redemption price paid the Company to redeem any excess voting shares in accordance with this Article 181 shall be:

 

44

---

(i)

the average of the closing prices per share of the voting shares on the principal stock exchange (or, if there is no principal stock exchange or if the requisite trading of voting shares has not occurred on the principal stock exchange, such other stock exchange or such other organized market on which such requisite trading has occurred as the directors of the Company shall determine) over the last 10 trading days on which at least one board lot of voting shares has traded on the principal stock exchange ( or such other stock exchange or such other organized market) in the period ending on the trading day immediately preceding the redemption date; or

 

(ii)

if the requisite trading of voting shares has not occurred on any stock exchange or other organized market, on such basis as the Directors of the Company shall determine.

PROCEDURES RELATING TO SALE AND REDEMPTION

182.

 

(a)

In the event of any sale or redemption of excess voting shares in accordance with Article 180 or Article 181, respectively, the Company shall deposit an amount equal to the amount of the net proceeds of sale or the redemption price, respectively, in a special account in any bank or trust company in Canada selected by it. The amount of the deposit, less the reasonable costs of administration of the special account, shall be payable to the registered holder of the excess voting shares sold or redeemed on presentation and surrender by the registered holder to that bank or trust company of the certificate or certificates, if any, representing the excess voting shares. Any interest earned on any amount so deposited shall accrue to the benefit of the Company.

 

(b)

From and after any deposit made pursuant to Article 182(a), the registered holder shall not be entitled to any of the remaining rights of a registered holder in respect of the excess voting shares sold or redeemed, other than the right to receive the funds so deposited on presentation and surrender of the certificate or certificates representing the excess voting shares sold or redeemed.

 

(c)

If a part only of the voting shares represented by any certificate is sold or redeemed in accordance with Articles 180 or 181, respectively, the Company shall, on presentation and surrender of such certificate and at the expense of the registered holder, and subject to any regulations made by the Directors, issue a new certificate representing the balance of the voting shares.

 

(d)

So soon as is reasonably practicable after, and, in any event, not later than 30 days (or such longer period as is fixed from time to time by the Directors and complies with all applicable laws) after, a deposit made pursuant to Article 182(a), the Company shall send a notice to the registered holder of the excess voting shares sold or redeemed and the notice shall state:

 

(i)

that a specified number of voting shares has been sold or redeemed, as the case maybe;

 

45

---

(ii)

the amount of the net proceeds of sale or the redemption price, respectively;

 

(iii)

the name and address of the bank or trust company at which the Company has made the deposit of the net proceeds of sale or the redemption price, respectively; and

 

(iv)

all other relevant particular of the sale or redemption, respectively.

 

(e)

For greater certainty, the Company may sell or redeem excess voting shares in accordance with Articles 180 or 181, respectively, despite the fact that the Company does not possess the certificate or certificates, if any, representing the excess voting shares at the time of the sale or redemption. If, in accordance with Article 180, the Company sells excess voting shares without possession of the certificate or certificates representing the excess voting shares, the Company shall, subject to any regulations made by the Directors, issue to the purchaser of such excess voting shares or its nominee a new certificate or certificates representing the excess voting shares sold. If, in accordance with Articles 180 or 181, the Company sells or redeems excess voting shares without possession of the certificate or certificates representing the excess voting shares and, after the sale or redemption, a person establishes that it is a bona fide purchaser of the excess voting shares sold or redeemed, then, subject to applicable law:

 

(i)

the excess voting shares held or beneficially owned by the bona fide purchaser are deemed to be, from the date of the sale or redemption by the Company, as the case may be, validly issued and outstanding voting shares in addition to the excess voting shares sold or redeemed; and

 

(ii)

notwithstanding Article 182(b), the Company is entitled to the deposit made pursuant to Article 182(a) and, in the case of a sale in accordance with Article 180, shall add the amount of the deposit to the stated capital account for the class of voting shares issued.

EXCEPTIONS

183.

 

(a)

Notwithstanding Article 175, the individual share constraint shall not apply in respect of voting shares of the Company that are held:

 

(i)

by one or more underwriters solely for the purpose of distributing the voting shares to the public; or

 

(ii)

by any person who provides centralized facilities for the clearing of trades in securities and is acting in relation to trades in the voting shares solely as an intermediary in the payment of funds or the delivery of securities, or both.

 

46

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(b)

A person referred to in Article 183(a)(ii) shall not exercise voting rights attached to the voting shares so held by that person.

SAVING PROVISIONS

184.

 

(a)

Notwithstanding any other provision of this Part B;

 

(i)

the Directors of the Company may determine to pay a dividend or to make any other distribution on voting shares that would otherwise be prohibited by any other provision of this Part B where the contravention of the individual share constraint that gave rise to the prohibition was inadvertent or of a technical nature or it would otherwise be inequitable not to pay the dividend or make the distribution; and

 

(ii)

where a dividend has not been paid or any other distribution has not been made on voting shares as a result of a directors’ determination of a contravention of the individual share constraint, or where the amount of a dividend or any other distribution has been restored to the Company pursuant to Article 175(e)(ii) as a result of a directors’ determination of a contravention of the individual share constraint, the Directors of the Company shall declare and pay the dividend, make the distribution, or refund the restored amount, respectively, if they subsequently determine that no such contravention occurred.

 

(b)

In the event that the Company suspends or redeems voting shares in accordance with Article 179 or 181, respectively, or otherwise redeems, purchases for cancellation or otherwise acquires voting shares, and the result of such action is that any person and the associates of that person who, prior to such action, were not in contravention of the individual share constraint are, after such action, in contravention, then, notwithstanding any other provision of this Part B, the sole consequence of such action to that person and the associates of that person, in respect of the voting shares of that person and of the associates of that person held, beneficially owned or controlled at the time of such action, shall be that the number of votes attached to those voting shares shall be reduced to a number that is the largest whole number of votes that may be attached to the voting shares which that person and the associates of that person could hold, beneficially own or control from time to time in compliance with the individual share constraint.

 

(c)

Notwithstanding any other provision of this Part B, a contravention of the individual share constraint shall have no consequences except those that are expressly provided for in this Part B. For greater certainty but without limiting the generality of the foregoing:

 

(i)

no transfer, issue or ownership of, and no title to, voting shares;

 

47

---

(ii)

no resolution of shareholders (except to the extent that the result thereof is affected as a result of a directors’ determination under Article 175(e)(i)); and

 

(iii)

no act of the Company, including any transfer of property to or by the Company;

shall be invalid or otherwise affected by any contravention of the individual share constraint.

DIRECTORS’ DETERMINATIONS

185.

 

(a)

The Directors of the Company shall have the sole right and authority to administer the provisions of this Part B and to make any determination required or contemplated hereunder. In so acting, the Directors of the Company shall enjoy, in addition to the powers set forth in this Part B, all of the powers necessary or desirable, in their opinion, to carry out the intent and purpose of this Part B. The Directors of the Company shall make on a timely basis all determinations necessary for the administration of the provisions of this Part B and, without limiting the generality of the foregoing, if the Directors of the Company consider that there are reasonable grounds for believing that a contravention of the individual ownership constraint has occurred or will occur, the Directors shall make a determination with respect to the matter. Any directors’ determination that is not inconsistent with the Reorganization Act, the Privatization Act and other applicable law shall be conclusive, final and binding except to the extent modified by any subsequent directors’ determination.

 

(b)

The Directors of the Company shall make any directors’ determination contemplated by Article 175:

 

(i)

after the relevant shareholder’s declaration have been requested and received by the Company, only:

 

(A)

on a basis consistent with those shareholder’s declarations; or

 

(B)

if the Directors of the Company are of the opinion that the shareholder’s declarations do not contain adequate or accurate information and they believe and have reasonable grounds for believing that they will not be provided with shareholder’s declarations that do contain adequate and accurate information; or

 

(ii)

whether or not any shareholder’s declaration has been requested or received by the Company, only if the Directors of the Company believe and have reasonable grounds for believing that they have sufficient information to make the directors’ determination, that the consequences of the directors’ determination would not be inequitable to those affected by it and that it would be impractical, under all the circumstances, to request or to await the receipt of any shareholder’s declaration.

 

48

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(c)

In administering the provisions of this Part B, including, without limitation, in making any directors’ determination in accordance with Article 185(b) or otherwise, the Directors of the Company may rely on any information on which the Directors consider it reasonable to rely in the circumstances. Without limiting the generality of the foregoing, the Directors of the Company may rely upon any shareholder’s declaration, the register of members of the Company, the knowledge of any Director, officer or employee of the Company or any advisor to the Company and the opinion of counsel to the Company.

 

(d)

In administering the provisions of this Part B, including, without limitation, in making any directors’ determination, the Directors shall act honestly and in good faith. Provided that the Directors of the Company so act, they shall not be liable to the Company and neither they nor the Company shall be liable to any holder or beneficial owner of voting shares or any other person for, nor with respect to any matter arising from or related to, any act or omission to act in relation to this Part B.

 

(e)

Any directors’ determination required or contemplated by this Part B shall be expressed and conclusively evidenced by a resolution duly adopted.

 

(f)

The Directors may delegate any of their powers and duties under this Article 185 to any standing or special committee consisting of such members of the Board as the Directors may determine.

SHAREHOLDERS’ DECLARATIONS

186.

 

(a)

For purposes of monitoring the compliance with and of enforcing the provisions of this Part B, the Directors of the Company may require that any registered holder or beneficial owner, or any other person of whom it is, in the circumstances, reasonable or make such request, file with the Company or its registrar and transfer agent a completed shareholder’s declaration. The Directors of the Company shall determine from time to time written guidelines with respect to the nature of the shareholder’s declaration to be requested, the times at which shareholder’s declarations are to be requested and any other relevant matters relating to shareholder’s declarations.

 

(b)

A shareholder’s declaration shall be in the form from time to time determined by the directors of the Company pursuant to Article 186(a) and, without limiting the generality of the foregoing may be required to be in the form of a simple declaration in writing or a statutory declaration under the Canada Evidence Act. Without limiting the generality of its contents, any shareholder’s declaration may be required to contain information with respect to:

 

(i)

the name, address and residency of the shareholder (“Registered Shareholder”) and if the shareholder is an individual and not a Canadian citizen, such shareholder’s citizenship;

 

49

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(ii)

the name, address and residency of any person who beneficially owns or controls, directly or indirectly, otherwise than by way of security only, the Registered Shareholder’s shares (“Beneficial Shareholder”) and if such person is an individual and not a Canadian citizen, such person’s citizenship;

 

(iii)

the name, address and residency of any person who is an associate of the Registered Shareholder or any Beneficial Shareholder (“Associate”), and if such person is an individual and not a Canadian citizen, such person’s citizenship;

 

(iv)

the number of shares held by the Registered Shareholder, each Beneficial Shareholder and each Associate, including the dates such shares were acquired or proposed to be acquired; and

 

(v)

if the Registered Shareholder, any Beneficial Shareholder or any Associate is a corporation, trust, partnership or unincorporated organization the name, address and residency of each person who is a controlling shareholder, trustee, partner or member of the corporation, trust, partnership or unincorporated organization, as the case may be, and if such person is an individual and not a Canadian citizen, such person’s citizenship.

 

50

 

Exhibit 3.3

 

STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF INCORPORATION

 

EUSHI Finance, Inc., organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”) does hereby certify:

 

FIRST: That, in lieu of a meeting of the Board of Directors of the Corporation, resolutions were adopted setting forth a proposed amendment of the Certificate of Incorporation of the Corporation, declaring said amendment to be advisable, by written consent of the sole director of said Corporation. The resolution setting forth the proposed amendment is as follows:

 

RESOLVED: That the sole director hereby deems it advisable and in the best interests of the Corporation and its sole shareholder to amend the Corporation’s Certificate of Incorporation as follows:

 

That Article FOURTH of the Certificate of Incorporation of EUSHI Finance, Inc. shall be deleted in its entirety and replaced with the following:

 

“FOURTH: The amount of the total stock that this corporation is authorized to issue is 5,000 shares with a par value of $0.001 per share.”

 

SECOND: That thereafter, the President of the Corporation submitted the proposed amendment to a vote of the sole shareholder of the Corporation, and, in lieu of a special meeting of the sole shareholder, by written consent of the holder of all of the outstanding shares of the Corporation, said shares were voted in favor of the amendment.

 

THIRD: That said amendment was duly adopted in accordance with the provisions of Section 228 of the General Corporation Law of the State of Delaware.

 

IN WITNESS WHEREOF, the Corporation has caused this Certificate to be signed this 4^th day of December, 2017.

 

	/s/ Stephen D. Aftanas
	Printed Name:  Stephen D. Aftanas
	Its: Secretary

STATE of DELAWARE

 

CERTIFICATE of INCORPORATION

 

OF

 

EUSHI FINANCE, INC.
(A Stock Corporation)

 

FIRST: The name of this Corporation is EUSHI Finance, Inc.

 

SECOND: Its registered office in the State of Delaware is to be located at Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, County of New Castle, Delaware 19808, The name of its registered agent at such address is Corporation Service Company.

 

THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.

 

FOURTH: The amount of the total stock that this corporation is authorized to issue is 2,000,000 shares with $.001 par value.

 

FIFTH: The name end mailing address of the Incorporator are as follows:

 

NAME	MAILING ADDRESS
Stephen D. Aftanas	P.O. Box 910 Halifax, Nova Scotia Canada B3J2W5

 

SIXTH: The Board of Directors is expressly authorized to exercise all powers granted to the directors by law except insofar as such powers are limited or denied herein or in the Bylaws of the Corporation. In furtherance of such powers, the Board of Directors shall have the right to make, alter or repeal the Bylaws of the Corporation.

 

SEVENTH: Meetings of stockholders may be held within or without the State of Delaware, as the Bylaws may provide. The books of the Corporation may be kept outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the Bylaws of the Corporation. Elections of directors need not be by written ballot unless the Bylaws of the Corporation shall so provide.

 

I, The Undersigned, for the purpose of forming a corporation under the laws of the State of Delaware, do make, file and record this Certificate, and do certify that the facts herein stated are true, and I have accordingly hereunto set my hand this 20^th day of May, 2016.

 

	/s/ Stephen D. Aftanas
	Stephen D. Aftanas, Sole Incorporator

STATE OF DELAWARE
CERTIFICATE FOR REVIVAL OF CHARTER

 

The corporation organized under the laws of the State of Delaware, the charter of which was voided for non-payment of taxes and/or for failure to file a complete annual report, now desires to procure a revival of its charter pursuant to Section 312 of the General Corporation Law of the State of Delaware, and hereby certifies as follows:

 

1. The name of the corporation is EUSHI Finance, Inc.                   

 

and, if different, the name under which the corporation was originally incorporated

 

2. The Registered Office of the corporation in the State of Delaware is located at
251 Little Falls Drive                  (street), in the City of Wilmington                      , County of New Castle                   Zip Code 19808           . The name of the Registered Agent at such address upon whom process against this Corporation may be served is corporation service Company                          

 

  

3. The date of filing of the Corporation’s original Certificate of Incorporation in Delaware was May 20, 2016                     ,

 

4.       The corporation desiring to be revived and so reviving its certificate of incorporation was organized under the laws of this State.

 

5.       The corporation was duly organized and carried on the business authorized by its charter until the 1st     day of March         A.D. 2019    , at which time its charter became inoperative and void for non-payment of taxes and/or failure to file a complete annual report and the certificate for revival is filed by authority of the duly elected directors of the corporation in accordance with the laws of the State of Delaware.

 

	By:	/s/ Stephen D. Aftanas
		Authorized Officer

 

	Name:	Stephen D. Aftanas, Secretary
		Print or Type

Exhibit 3.4

EUSHI FINANCE, INC.

 

ACTION TAKEN BY WRITTEN CONSENT OF SOLE DIRECTOR

 

Pursuant to Title 8, Section 141(f) of the Delaware General Corporation Law, the undersigned, being the sole director of EUSHI Finance, Inc. (the “Corporation”), does hereby consent to the following actions, without holding a meeting, such actions being stated in the form of, and to be as fully effective as if taken by, resolutions of said director at a meeting duly called and held on the date hereof at which the undersigned director was present and acting throughout:

 

ADOPTION OF BYLAWS

 

RESOLVED: That Bylaws be adopted in the form attached hereto as Exhibit A and be placed with the Corporation’s permanent records.

 

ISSUANCE OF STOCK

 

RESOLVED: That upon the payment of the sum set forth opposite its name into the treasury of the Corporation, to issue the following entity the number of shares of the common capital stock of the Corporation set forth opposite its name which shares, when issued, shall be fully paid and non-assessable:

 

Shareholder	Consideration	No. of Shares
Emera US Holdings Inc.	$100	100

 

ELECTION OF OFFICERS

 

RESOLVED: That the following persons be elected to the offices set forth opposite their respective names, each to serve and hold office until his/her successor has been elected and qualified or until his/her earlier resignation or removal from office in the manner provided by law:

 

President:	Robert R. Bennett
Secretary:	Stephen D. Aftanas

 

DESIGNATION OF DEPOSITORY BANK

 

RESOLVED: That each of the President and Secretary of the Corporation hereby is authorized to designate depository banks on behalf of the Corporation; that each of the President and the Secretary, acting individually or jointly, is authorized to execute all documents required to open depository accounts including authorizations for Internet

 

banking access and debit cards; that each is authorized to have signature power on all such depository accounts and that the standard depository resolutions of all such depository banks hereby are adopted in full.

 

SALARIES OF OFFICERS

 

RESOLVED: That the officers of the Corporation be compensated at such salaries, wages, or commissions as may from time to time be determined by the Board of Directors.

 

FISCAL YEAR

 

RESOLVED: That the fiscal year end of the Corporation shall be December 31.

 

“C” CORPORATION

 

RESOLVED: That the Corporation shall be treated as a “C” Corporation under the Internal Revenue Code.

 

CORPORATE SEAL

 

RESOLVED: That the Corporation hereby is authorized to adopt a circular seal containing the name of the Corporation, the year of its creation, and the word “Delaware,” and that the Secretary is hereby authorized to secure the same when deemed appropriate.

 

EXECUTION OF CONTRACTS

 

RESOLVED: That each of the President and the Secretary, acting individually or jointly, or such other officers as each shall designate, hereby is authorized to execute on behalf of the Corporation any and all instruments, documents, contracts or agreements required to commence the business of the Corporation.

 

Dated as of May 20, 2016

 

	/s/ Robert R. Bennett
	Robert R. Bennett, Sole Director

Exhibit A

 

Bylaws

 

of

 

EUSHI FINANCE, INC.

 

ARTICLE I: OFFICES

 

Section 1.1 Registered Office. The registered office of the corporation shall be in Wilmington, Delaware or in such other location as the Board of Directors may from time to time determine.

 

Section 1.2. Other Offices. The corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the corporation may require.

 

ARTICLE II: MEETINGS OF STOCKHOLDERS

 

Section 2.1. Place of Meetings. All meetings of the stockholders for the election of directors shall be held at such place either within or without the State of Delaware as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof.

 

Section 2.2. Annual Meetings. Annual meetings of stockholders shall be held at such date and time as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting, at which they shall elect by a plurality vote a Board of Directors, and transact such other business as may properly be brought before the meeting.

 

Section 2.3. Special Meetings. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the Board of Directors, or by a committee of the Board of Directors which has been duly designated by the Board of Directors and whose powers and authority include the power to call such meetings, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

Section 2.4. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, date and hour of the meeting, the record date for determining the stockholders entitled to vote at the meeting (if such date is different from the record date for stockholders entitled to notice of the meeting) and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation, or these bylaws, the written notice of any meeting

 

shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at the meeting as of the record date for determining the stockholders entitled to notice of the meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as is appears on the records of the corporation.

 

Section 2.5. Notice by Electronic Transmission. Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders given by the corporation under Section 2.4, the certificate of incorporation, or the bylaws shall be effective if given by a form of electronic transmission consented to by the stockholder to whom the notice is given. Any such consent shall be revocable by the stockholder by written notice to the corporation. Any such consent shall be deemed revoked if (1) the corporation is unable to deliver by electronic transmission two consecutive notices given by the corporation in accordance with such consent and (2) such inability becomes known to the Secretary or an Assistant Secretary of the corporation or to the transfer agent, or other person responsible for the giving of notice; provided, however, the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action.

 

Notice given pursuant to this Section 2.5 shall be deemed given:

 

(1)

If by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice;

 

(2)

If by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice;

 

(3)

If by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (a) such posting and (b) the giving of such separate notice; and

 

(4)

If by any other form of electronic transmission, when directed to the stockholder.

 

An affidavit of the Secretary or an Assistant Secretary or of the transfer agent or other agent of the corporation that the notice has been given by a form of electronic transmission shall, in the absence of fraud, be prima facie evidence of the facts stated therein.

 

For purposes of this Section 2.5, “electronic transmission” means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.

 

Section 2.6. Adjournment. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced

 

at the meeting at which the adjournment is taken. At the adjourned meeting, the corporation may transact any business that might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If after the adjournment a new record date for stockholders entitled to vote is fixed for the adjourned meeting, the Board of Directors shall fix a new record date for notice of such adjourned meeting and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned meeting as of the record date for notice of such adjourned meeting.

 

Section 2.7. Quorum. At each meeting of stockholders, except where otherwise provided by law or the certificate of incorporation or these bylaws, the holders of a majority of the outstanding shares of stock entitled to vote at the meeting, present in person or by proxy, shall constitute a quorum. In the absence of a quorum, the stockholders so present may, by majority vote, adjourn the meeting from time to time in the manner provided in Section 2.6 of these bylaws until a quorum shall attend, Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of any corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 2.8. Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, on the absence of the foregoing persons, by a Chairperson designated by the Board of Directors, or in the absence of such designation, by a Chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in the absence of the Secretary, the Chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.9. Voting: Proxies. Except as otherwise provided by the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by him which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for him by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by filing an instrument in writing revoking the proxy or another duly executed proxy bearing a later date with the Secretary of the corporation, At all meetings of stockholders for the election of directors a plurality of the votes cast shall be sufficient to elect. All other elections and questions shall, unless otherwise provided by law or by the certificate of incorporation or these bylaws, be

 

decided by the vote of the holders of a majority of the outstanding shares of stock entitled to vote thereon present in person or by proxy at the meeting.

 

Section 2.10. Fixing Date for Determination of Stockholders of Record.

 

Section 2.10(a). In order that the corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the Board of Directors may fix, in advance, a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date, unless otherwise required by law, shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If the Board of Directors so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board of Directors determines, at the time it fixes such a record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board of Directors, the record date for determining the stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the date next preceding the day on which the notice is given, or if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance herewith at the adjourned meeting.

 

Section 2.10(b) In order that the corporation may determine the stockholders entitled to express consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date for determining stockholders entitled to express consent to corporate action in writing without a meeting is fixed by the Board of Directors, (i) when no prior action of the Board of Directors is required by law, the record date for such purpose shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, and (ii) if prior action by the Board of Directors is required by law, the record date for such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.

 

Section 2.10(c) In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall

 

be not more than sixty (60) days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

 

Section 2.11. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting (provided, however, if the record date for determining the stockholders entitled to vote is less than ten (10) days before the date of the meeting, the list of stockholders shall reflect the stockholders entitled to vote as of the tenth. (10^th) day before the meeting date), arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting for a period of at least ten (10) days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours at the principal place of business of the corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination by any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of meeting. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this section or to vote in person or by proxy at any meeting of stockholders.

 

Section 2.12. Action by Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for notice of such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

Section 2.13. Meetings by Remote Communication. Notwithstanding any provision in these bylaws to the contrary, The Board of Directors may, in its sole discretion, determine that any meeting of the stockholders shall not be held at any place, but may instead be held solely by means of remote communication. If authorized by the Board of Directors, stockholders and proxyholders not physically present at a meeting of stockholders may, by means of remote communication:

 

(1)

Participate in a meeting of stockholders; and

 

(2)

Be deemed present in person and vote at a meeting of stockholders, whether such meeting is to be held at a designated place or solely by means of remote communication, provided that (i) the corporation shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a stockholder or proxyholder, (ii) the corporation shall implement reasonable measures to provide such stockholders and proxyholders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings, and (iii) if any stockholder or proxyholder votes or takes other action at the meeting by means of remote communication, a record of such vote or other action shall be maintained by the corporation.

 

ARTICLE III: BOARD OF DIRECTORS

 

Section 3.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 3.2. Election; Resignation; Removal; Vacancies. The stockholders shall elect directors at each annual meeting, each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification, or removal. Any director may resign at any time upon written notice to the corporation. Any vacancy occurring in the Board of Directors may be filled by the affirmative vote of a majority of the Board, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced.

 

Section 3.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board of Directors may from time to time determine, and if so determined notices thereof need not be given.

 

Section 3.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Reasonable notice thereof shall be given by the person or persons calling the meeting, not later than the second day before the date of the special meeting.

 

Section 3.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board, may participate in a meeting of such Board or committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and

 

participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 3.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors, the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation or these bylaws or applicable law otherwise provides, the majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 3.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairman of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence, the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 3.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board or such committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission are filed with the minutes of proceedings of the Board or committee in accordance with applicable law.

 

Section 3.9. Compensation of Directors. Unless otherwise restricted by the certificate of incorporation or these bylaws, the Board of Directors shall have the authority to determine the compensation of directors provided that no full time employee of the corporation shall be separately compensated for service on the Board. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors, may be paid a fixed sum for attendance at each meeting of the Board of Directors, and may be paid a stated salary as director, in each case at the discretion of the Board of Directors. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

ARTICLE IV: COMMITTEES

 

Section 4.1. Committees. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors

 

to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to the following matter: (i) approving or adopting, or recommending to the stockholders, any action or matter (other than the election or removal of directors) expressly required by this chapter to be submitted to stockholders for approval or (ii) adopting, amending or repealing any bylaw of the corporation; and, unless the resolution or the certificate of incorporation expressly so provides, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors.

 

Section 4.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules, each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to these bylaws.

 

Section 4.3. Minutes of Meetings. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required.

 

ARTICLE V: OFFICERS

 

Section 5.1. Officers; Election; Qualifications; Term of Office; Resignation: Removal; Vacancies. The officers of the corporation shall be chosen by the Board of Directors and there shall initially be a President and a Secretary. The Board of Directors may also choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more vice presidents, a Treasurer, one or more assistant secretaries and assistant treasurers and such other officers as it deems appropriate. Any number of offices may be held by the same person, unless the certificate of incorporation or these bylaws otherwise provide. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

Each officer duly elected shall hold office until the first meeting of the Board of Directors after the annual meeting of the stockholders next succeeding this election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such office, if any, with the corporation.

 

Section 5.2. Salaries of Officers. The salaries of all officers and agents of the corporation shall be determined by the Board of Directors.

 

Section 5.3. President. The President shall have the authority to sign all certificates, contracts, obligations and other instruments of the corporation arising in the ordinary course of its business, subject in all events to the direction of the Board of Directors and the executive management committee, if any. The President shall not have the authority to take actions outside of the ordinary course of business unless specifically authorized by the Board of Directors and shall exercise such other powers and perform such other duties as may from time to time be assigned to him or her by these bylaws or by the Board of Directors.

 

Section 5.4. Secretary. The Secretary shall attend all meetings of the Board of Directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the Board of Directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or by the President, under whose supervision he or she shall be. The Secretary shall have custody of the corporate seal of the corporation and him or her, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and, when so affixed, it may be attested by his or her signature or by the signature of such assistant secretary. The Board of Directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his or her signature.

 

Section 5.5. Assistant Secretary. The Assistant Secretary, or if there by more than one, the assistant secretaries in the order determined by the Board of Directors (or if there be no such determination, then in the order of their election) shall, in the absence of the Secretary or in the event of his or her inability or refusal to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.

 

Section 5.6. Treasurer. The Treasurer, if any, shall be the chief financial officer of the corporation and shall have custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the Board of Directors.

 

The Treasurer, if any, shall disburse the funds of the corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President and the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all his transactions as Treasurer and of the financial condition of the corporation.

 

If required by the Board of Directors, the Treasurer, if any, shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his or her office and for the restoration to the corporation, in case of his or her death, resignation, retirement or removal from office, of all books, papers, vouchers, money or other property of whatever kind in his or her possession or under his control belonging to the corporation.

 

ARTICLE VI: CERTIFICATES OF STOCK

 

Section 6.1. Certificates. Every holder of stock in the corporation shall be entitled to have a certificate, signed by, or in the name of the corporation by either the President or the Secretary of the corporation, or another officer as may be designated by the President or the Secretary, certifying the number of shares owned by him/her in the corporation. Any or all the signatures on the certificate may be electronically produced. In case any officer, transfer agent or registrar who has signed or whose electronic signature has been placed upon a certificate shall cease to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he/she were such officer, transfer agent or registrar at the date of issue.

 

Section 6.2. Lost, Stolen or Destroyed Stock Certificates. The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed.

 

ARTICLE VII: INDEMNIFICATION OF OFFICERS, DIRECTORS AND EMPLOYEES

 

Section 7.1. Right to Indemnification.

 

Section 7.1 (a). The corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the

 

best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person’s conduct was unlawful.

 

Section 7.1 (b). The corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

 

Section 7.2. Expenses. To the extent that a present or former director or officer of the corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection 7.1 of this Article, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.

 

Section 7.3. Determination of Right to Indemnification. Any indemnification under subsections 7.1 of this Article (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because the person has met the applicable standard of conduct set forth in subsections 7.1 of this Article. Such determination shall be made, with respect to a person who is a director or officer of the corporation at the time of such determination:

 

(a)

By a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; or

 

(b)

By a committee of such directors designated by majority vote of such directors, even though less than a quorum; or

 

(c)

If there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion; or

 

(d)

By the stockholders.

 

Section 7.4. Prepayment of Expenses. Expenses (including attorneys’ fees) incurred by an officer or director of the corporation in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized in this section. Such expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents of the corporation or by persons serving at the request of the corporation as directors, officers, employees or agents of another corporation, partnership joint venture, trust or other enterprise may be so paid upon such terms and conditions, if any, as the corporation deems appropriate.

 

Section 7.5. Nonexclusively of Rights. The indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this Article shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office. A right to indemnification or to advancement of expenses arising under a provision of the certificate of incorporation or a bylaw shall not be eliminated or impaired by an amendment to the certificate of incorporation or the bylaws after the occurrence of the act or omission that is the subject of the civil, criminal, administrative or investigative action, suit or proceeding for which indemnification or advancement of expenses is sought, unless the provision in effect at the time of such act or omission explicitly authorizes such elimination or impairment after such action or omission has occurred.

 

Section 7.6. Insurance. The corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under this Article.

 

ARTICLE VIII: GENERAL PROVISIONS

 

Section 8.1. Dividends. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the

 

certificate of incorporation. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the Board of Directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the Board may modify or abolish any such reserve in the manner in which it was created.

 

Section 8.2. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any written waiver of notice, signed by the person entitled to notice or a waiver by electronic transmission by such person, whether before or at the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in any written waiver of notice or any waiver by electronic transmission.

 

Section 8.3. Interested Directors: Quorum. No contract or transaction between the corporation and one or more of its directors or officers, or between the corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board or committee thereof which authorizes the contract or transaction, or solely because his or her or their votes are counted for such purpose, if (i) the material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the corporation as of the time it is authorized, approved or ratified by the Board of Directors, a committee thereof, or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.

 

Section 8.4. Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of the Board of Directors.

 

Section 8.5. Corporate Seal. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise

 

Section 8.6. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on or by means of, or be in the form of any information storage device or method, provided that the records so kept can be converted into clearly legible form within a reasonable time. The corporation shall so convert any records so kept upon the request of any person entitled to inspect such records pursuant to any provisions of these bylaws.

 

ARTICLE IX: AMENDMENTS

 

These bylaws may be altered, amended or repealed or new bylaws may be adopted by the stockholders, or by the Board of Directors, when such power is conferred upon the Board of Directors by the certificate of incorporation, at any regular meeting of the stockholders or of the Board of Directors or at any special meeting of the stockholders or of the Board of Directors if notice of such alteration, amendment, repeal or adoption of new bylaws be contained in the notice of such special meeting. If the power to adopt, amend or repeal bylaws is conferred upon the Board of Directors by the certificate of incorporation, it shall not divest or limit the power of the stockholders to adopt, amend or repeal bylaws.

 

Adopted as of May 20, 2016.

 

[Separate signature page attached]

 

ByLaws
of
eushi finance, Inc.
(Continued)

 

	/s/ Stephen D. Aftanas
	Stephen D. Aftanas, Secretary

 

 

 

Exhibit 3.5

 

STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF INCORPORATION

 

Emera US Holdings Inc., organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”) does hereby certify:

 

FIRST: That, in lieu of a meeting of the Board of Directors of the Corporation, resolutions were adopted setting forth a proposed amendment of the Certificate of Incorporation of the Corporation, declaring said amendment to be advisable, by written consent of the stockholders of said Corporation. The resolution setting forth the proposed amendment is as follows:

 

RESOLVED: That the Directors deem it advisable and in the best interests of the Corporation and its shareholders to amend the Corporation’s Certificate of Incorporation in the form attached hereto (the “Certificate of Amendment”); and direct the Secretary of the Corporation, acting singly, to submit the proposed amendment to a vote of the shareholders of the Corporation.

 

That Article III of the Certificate of Incorporation of Emera US Holdings Inc. shall be deleted in its entirety and replaced with the following:

 

Article III
Capital Stock

 

The total number of shares of all classes of stock which the Corporation shall have authority to issue is: (i) Ten Thousand (10,000) shares of Common Stock with a par value of $0.10 per share (“Common Stock”); (ii) Ten Thousand (10,000) shares of Non-Voting Common Stock with a par value of $0.10 per share (“Non-Voting Common Stock”); (iii) Ten Thousand (10,000) shares of Class A Preferred Stock with a par value of $0.10 per share (the “Class A Preferred Stock”); (iv) Ten Thousand (10,000) shares of Class B Preferred Stock with a par value of $0.10 per share (the “Class B Preferred Stock”); (v) Ten Thousand (10,000) shares of Class C Preferred Stock with a par value of $0.10 per share (the “Class C Preferred Stock”); (vi) Ten Thousand (10,000) shares of Class D Preferred Stock with a par value of $0.10 per share (the “Class D Preferred Stock”) (vii) Ten Thousand (10,000) shares of Class E Preferred Stock with a par value of $0.10 per share (the “Class E Preferred Stock”); (viii) Ten Thousand (10,000) shares of Class F Preferred Stock with a par value of $0.10 per share (the “Class F Preferred Stock”); (ix) Ten Thousand (10,000) shares of Class G Preferred Stock

 

with a par value of $0.10 per share (the “Class G Preferred Stock”); (x) Ten Thousand (10,000) shares of Class H Preferred Stock with a par value of $0.10 per share (the “Class H Preferred Stock”); (xi) Ten Thousand (10,000) shares of Class I Preferred Stock with a par value of $0.10 per share (the “Class I Preferred Stock”); (xii) Ten Thousand (10,000) shares of Class J Preferred Stock with a par value of $0.10 per share (the “Class J Preferred Stock”); (xiii) Ten Thousand (10,000) shares of Class K Preferred Stock with a par value of $0.10 per share (the “Class K Preferred Stock”); (xiv) Ten Thousand (10,000) shares of Class L Preferred Stock with a par value of $0.10 per share (the “Class L Preferred Stock”); (xv) Forty Thousand (40,000) shares of Class M Preferred Stock with a par value of $0.10 per share (the “Class M Preferred Stock”); (xvi) Ten Thousand (10,000) shares of Class N Preferred Stock with a par value of $0.10 per share (the “Class N Preferred Stock”); (xvii) Ten Thousand (10,000) shares of Class O Preferred Stock with a par value of $0.10 per share (the “Class O Preferred Stock”); and (xviii) Ten Thousand (10,000) shares of Class P Preferred Stock with a par value of $0.10 per share (the “Class P Preferred Stock”).

 

The following is a statement of the designations and the powers, privileges and rights, and the qualifications, limitations or restrictions thereof in respect of each class of capital stock of the Corporation.

 

1.

The rights, privileges, conditions and restrictions applicable to the Common Stock of the Corporation

 

a)

Voting Privileges. The holders of the Common Stock shall be entitled to receive notice of and to attend meetings of the shareholders of the Corporation, and shall be entitled to one (1) vote for each share of Common Stock held.

 

b)

Par Value. The Common Stock shall have a par value of $0.10 per share.

 

c)

Dividends. The holders of the Common Stock shall be entitled to receive and the Corporation shall pay to them, as and when declared by the Board of Directors of the Corporation, such dividends as the Board of Director of the Corporation may from time to time declare on the Common Stock, provided always that such dividend shall be paid on a pro-rata basis with the Non-Voting Common Stock, based on the number of shares held by each holder of Voting Common Stock and Non-Voting Common Stock.

 

d)

Priority on Dissolution. In the event of any liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary, or other distribution of the assets of the Corporation amongst its shareholders for the purpose of winding-up its affairs, the holders of the Common Stock shall be entitled to receive the property or assets of the Corporation on a pro-rata basis with the holders of the Non-Voting Common Stock, based on the number of shares held by each holder of Common Stock and Non-Voting Common Stock, subject to the rights of any holders of shares with priority over the Common Stock and Non-Voting Common Stock.

 

2.

The rights, privileges, conditions and restrictions applicable to the Non-Voting Common Stock of the Corporation

 

a)

Voting Privileges. The holders of the Non-Voting Common Stock shall not be entitled to vote at meetings of the shareholders of the Corporation nor to attend or receive notice of such meetings.

 

b)

Par Value. The Non-Voting Common Stock shall have a par value of $0.10 per share.

 

c)

Dividends. The holders of the Non-Voting Common Stock shall be entitled to receive and the Corporation shall pay to them, as and when declared by the Board of Directors of the Corporation, such dividends as the Board of Director of the Corporation may from time to time declare on the Non-Voting Common Stock, provided always that such dividend shall be paid on a pro-rata basis with the Common, based on the number of shares held by each holder of Common Stock and Non-Voting Common Stock.

 

d)

Priority on Dissolution. In the event of any liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary, or other distribution of the assets of the Corporation amongst its shareholders for the purpose of winding-up its affairs, the holders of the Non-Voting Common Stock shall be entitled to receive the property or assets of the Corporation on a pro-rata basis with the holders of the Common Stock, based on the number of shares held by each holder of Common Stock and Non-Voting Common Stock, subject to the rights of any holders of shares with priority over the Common Stock and Non-Voting Common Stock.

 

3.

The rights, privileges, conditions and restrictions applicable to the Class A Preferred Stock, Class B Preferred Stock, Class C Preferred Stock, Class D Preferred Stock, Class E Preferred Stock, Class F Preferred Stock, Class G Preferred Stock, Class H Preferred Stock, Class I Preferred Stock, Class J Preferred Stock, Class K Preferred Stock, Class L Preferred Stock, Class M Preferred Stock, Class N Preferred Stock, Class O Preferred Stock, and Class P Preferred Stock of the Corporation (collectively the “Preferred Stock”)

 

a)

Preferred Stock. The Preferred Stock shall be non-voting redeemable stock with a par value of $0.10 per share and all classes of Preferred Stock shall rank pari passu with each other, both as regards to dividends and to return of capital, and all classes of Preferred Stock shall rank in priority to the Common Stock and Non-Voting Common Stock of the Corporation, but shall not confer any further right to participate in profits or assets. The Classes of Preferred Stock shall be issued in the following original principal amounts: (i) Class A Preferred Stock shall have an original principal amount of $500,000,000USD; (ii) Class B Preferred Stock shall have an original principal amount of $750,000,000USD; (iii) Class C Preferred Stock shall have an original principal amount of $75C),000,000USD; (iv) Class D Preferred Stock shall have an original principal amount of $1,250,000,000USD;

 

(v) Class E Preferred Stock shall have an original principal amount of $144,562,500USD; (vi) Class F Preferred Stock shall have an original principal amount of $150,000,000USD; (vii) Class G Preferred Stock shall have an original principal amount of $20,645,500USD; (viii) Class H Preferred Stock shall have an original principal amount of $570,000,000USD; (ix) Class I Preferred Stock shall have an original principal amount of $53,000,000USD; (x) Class J Preferred Stock shall have an original principal amount of $360,537,954.09USD; (xi) Class K Preferred Stock shall have an original principal amount of $124,020,000USD; (xii) Class L Preferred Stock shall have an original principal amount of $570,000,000USD; (xiii) Class M Preferred Stock shall have an original principal amount of $400,000,000USD; (xiv) Class N Preferred Stock shall have an original principal amount of $300,000,000USD; (xv) Class O Preferred Stock shall have an original principal amount of $450,000,000USD; and (xvi) Class P Preferred Stock shall have an original principal amount of $500,000,000USD.

 

b)

Class A Preferred Dividends. The holders of the Class A Preferred stock shall be entitled to receive and the Corporation shall pay to them, as and when declared by the Board of Directors of the Corporation, out of the monies of the Corporation properly applicable to the dividends, a preferential, cumulative dividend, at a rate per share of 2.74 percent (the “Class A Preferred Share Coupon Yield”). Dividends shall be paid semiannually on the following dates: June 15 and December 15 (individually each a “Class A Dividend Payment Date”), or on such other date or dates as the Board of Directors may determine, provided that any dividends accrued and unpaid on the prior Class A Dividend Payment Date of any year must be paid on the immediately following Dividend Payment Date in such year, and shall be payable in cash, calculated and payable in United States dollars, which will accumulate and be calculated daily on an actual over 365 day count convention, at the Class A Preferred Share Coupon Yield applied on an annual basis to the Redemption Amount (as defined below). In addition, the Board of Directors of the Corporation may, at any time and from time to time, declare out of the monies of the Corporation properly applicable to the dividends, a special dividend (“Special Dividend”) in such amount per share as may be determined by the Board of Directors. No dividend shall at any time be declared or paid or set aside for the Common Stock, Non-Voting Common Stock or any part thereof for any fiscal year or for any other stock of the Corporation ranking junior or pari passu to the Class A Preferred Stock, unless the preferential dividend for such fiscal year or all prior years on all the Class A Preferred Stock outstanding shall have been declared and paid. Dividends on the Class A Preferred Stock shall be fully cumulative, whether or not in any fiscal year there shall be net profits or surplus available for the payment of dividends in such fiscal year.

 

c)

Class B Preferred Dividends. The holders of the Class B Preferred stock shall be entitled to receive and the Corporation shall pay to them, as and when declared by the Board of Directors of the Corporation, out of the monies of the Corporation properly applicable to the dividends, a preferential, cumulative dividend, at a rate per share of 3.33 percent (the “Class B Preferred Share Coupon Yield”). Dividends shall be paid semi-annually on the following dates: June 15 and

 

December 15 (individually each a “Class B Dividend Payment Date”), or on such other date or dates as the Board of Directors may determine, provided that any dividends accrued and unpaid on the prior Class B Dividend Payment Date of any year must be paid on the immediately following Class B Dividend Payment Date in such year, and shall be payable in cash, calculated and payable in United States dollars, which will accumulate and be calculated daily on an actual over 365 day count convention, at the Class B Preferred Share Coupon Yield applied on an annual basis to the Redemption Amount (as defined below). In addition, the Board of Directors of the Corporation may, at any time and from time to time, declare out of the monies of the Corporation properly applicable to the dividends, a special dividend (“Special Dividend”) in such amount per share as may be determined by the Board of Directors. No dividend shall at any time be declared or paid or set aside for the Common Stock, Non-Voting Common Stock or any part thereof for any fiscal year or for any other stock of the Corporation ranking junior or pari passu to the Class B Preferred Stock, unless the preferential dividend for such fiscal year or all prior years on all the Class B Preferred Stock outstanding shall have been declared and paid. Dividends on the Class B Preferred Stock shall be fully cumulative, whether or not in any fiscal year there shall be net profits or surplus available for the payment of dividends in such fiscal year.

 

d)

Class C Preferred Dividends. The holders of the Class C Preferred Stock shall be entitled to receive and the Corporation shall pay to them, as and when declared by the Board of Directors of the Corporation, out of the monies of the Corporation properly applicable to the dividends, a preferential, cumulative dividend, at a rate per share of 4.85 percent (the “Class C Preferred Share Coupon Yield”). Dividends shall be paid semiannually on the following dates: June 15 and December 15 (individually each a “Class C Dividend Payment Date”), or on such other date or dates as the Board of Directors may determine, provided that any dividends accrued and unpaid at the prior Class C Dividend Payment Date of any year must be paid on the immediately following Class C Dividend Payment Date in such year, and shall be payable in cash, calculated and payable in United States dollars, which will accumulate and be calculated daily on an actual over 365 day count convention, at the Class C Preferred Share Coupon Yield applied on an annual basis to the Redemption Amount (as defined below). In addition, the Board of Directors of the Corporation may, at any time and from time to time, declare out of the monies of the Corporation properly applicable to the dividends, a special dividend (“Special Dividend”) in such amount per share as may be determined by the Board of Directors. No dividend shall at any time be declared or paid or set aside for the Common Stock, Non-Voting Common Stock or any part thereof for any fiscal year or for any other stock of the Corporation ranking junior or pari passu to the Class C Preferred Stock, unless the preferential dividend for such fiscal year or all prior years on all the Class C Preferred Stock outstanding shall have been declared and paid. Dividends on the Class C Preferred Stock shall be fully cumulative, whether or not in any fiscal year there shall be net profits or surplus available for the payment of dividends in such fiscal year.

 

e)

Class D Preferred Dividends. The holders of the Class D Preferred Stock shall be entitled to receive and the Corporation shall pay to them, as and when declared by the Board of Directors of the Corporation, out of the monies of the Corporation properly applicable to the dividends, a preferential, cumulative dividend, at a rate per share of 5.38 percent (the “Class D Preferred Share Coupon Yield”). Dividends shall be paid semi-annually on the following dates: June 15 and December 15 (individually each a “Class D Dividend Payment Date”), or on such other date or dates as the Board of Directors may determine, provided that any dividends accrued and unpaid on the prior Class D Dividend Payment Date of any year must be paid on the immediately following Class D Dividend Payment Date in such year, and shall be payable in cash, calculated and payable in United States dollars, which will accumulate and be calculated daily on an actual over 365 day count convention, at the Class D Preferred Share Coupon Yield applied on an annual basis to the Redemption Amount (as defined below). In addition, the Board of Directors of the Corporation may, at any time and from time to time, declare out of the monies of the Corporation properly applicable to the dividends, a special dividend (“Special Dividend”) in such amount per share as may be determined by the Board of Directors. No dividend shall at any time be declared or paid or set aside for the Common Stock, Non-Voting Common Stock or any part thereof for any fiscal year or for any other stock of the Corporation ranking junior or pari passu to the Class D Preferred Stock, unless the preferential dividend for such fiscal year or all prior years on all the Class D Preferred Stock outstanding shall have been declared and paid. Dividends on the Class D Preferred Stock shall be fully cumulative, whether or not in any fiscal year there shall be net profits or surplus available for the payment of dividends in such fiscal year.

 

f)

Class E Preferred Dividends. The holders of the Class E Preferred Stock shall be entitled to receive and the Corporation shall pay to them, as and when declared by the Board of Directors of the Corporation, out of the monies of the Corporation properly applicable to the dividends, a preferential, cumulative dividend, at a rate per share of 5.44 percent (the “Class E Preferred Share Coupon Yield”). Dividends shall be paid semi-annually on the following dates: June 15 and December 15 (individually each a “Class E Dividend Payment Date”), or on such other date or dates as the Board of Directors may determine, provided that any dividends accrued and unpaid on the prior Class E Dividend Payment Date of any year must be paid on the immediately following Class E Dividend Payment Date in such year, and shall be payable in cash, calculated and payable in United States dollars, which will accumulate and be calculated daily on an actual over 365 day count convention, at the Class E Preferred Share Coupon Yield applied on an annual basis to the Redemption Amount (as defined below). In addition, the Board of Directors of the Corporation may, at any time and from time to time, declare out of the monies of the Corporation properly applicable to the dividends, a special dividend (“Special Dividend”) in such amount per share as may be determined by the Board of Directors. No dividend shall at any time be declared or paid or set aside for the Common Stock, Non-Voting Common Stock or any part thereof for any fiscal year or for any other stock of the Corporation ranking

 

junior or pari passu to the Class E Preferred Stock, unless the preferential dividend for such fiscal year or all prior years on all the Class E Preferred Stock outstanding shall have been declared and paid. Dividends on the Class E Preferred Stock shall be fully cumulative, whether or not in any fiscal year there shall be net profits or surplus available for the payment of dividends in such fiscal year.

 

g)

Class F Preferred Dividends. The holders of the Class F Preferred Stock shall be entitled to receive and the Corporation shall pay to them, as and when declared by the Board of Directors of the Corporation, out of the monies of the Corporation properly applicable to the dividends, a preferential, cumulative dividend, at a rate per share of 3.16 percent (the “Class F Preferred Share Coupon Yield”). Dividends shall be paid semi-annually on the following dates: June 15 and December 15 (individually each a “Class F Dividend Payment Date”), or on such other date or dates as the Board of Directors may determine, provided that any dividends accrued and unpaid on the prior Class F Dividend Payment Date of any year must be paid on the immediately following Class F Dividend Payment Date in such year, and shall be payable in cash, calculated and payable in United States dollars, which will accumulate and be calculated daily on an actual over 365 day count convention, at the Class F Preferred Share Coupon Yield applied on an annual basis to the Redemption Amount (as defined below). In addition, the Board of Directors of the Corporation may, at any time and from time to time, declare out of the monies of the Corporation properly applicable to the dividends, a special dividend (“Special Dividend”) in such amount per share as may be determined by the Board of Directors. No dividend shall at any time be declared or paid or set aside for the Common Stock, Non-Voting Common Stock or any part thereof for any fiscal year or for any other stock of the Corporation ranking junior or pari passu to the Class F Preferred Stock, unless the preferential dividend for such fiscal year or all prior years on all the Class F Preferred Stock outstanding shall have been declared and paid. Dividends on the Class F Preferred Stock shall be fully cumulative, whether or not in any fiscal year there shall be net profits or surplus available for the payment of dividends in such fiscal year.

 

h)

Class G Preferred Dividends. The holders of the Class G Preferred Stock shall be entitled to receive and the Corporation shall pay to them, as and when declared by the Board of Directors of the Corporation, out of the monies of the Corporation properly applicable to the dividends, a preferential, cumulative dividend, at a rate per share of 1.85 percent (the “Class G Preferred Share Coupon Yield”). Dividends shall be paid semi-annually on the following dates: June 15 and December 15 (individually each a “Class G Dividend Payment Date”), or on such other date or dates as the Board of Directors may determine, provided that any dividends accrued and unpaid on the prior Class G Dividend Payment Date of any year must be paid on the immediately following Class G Dividend Payment Date in such year, and shall be payable in cash, calculated and payable in United States dollars, which will accumulate and be calculated daily on an actual over 365 day count convention, at the Class G Preferred Share Coupon Yield applied on an annual basis to the Redemption Amount (as defined below). In addition, the Board of Directors of the Corporation may, at any time and from time to time,

 

declare out of the monies of the Corporation properly applicable to the dividends, a special dividend (“Special Dividend”) in such amount per share as may be determined by the Board of Directors. No dividend shall at any time be declared or paid or set aside for the Common Stock, Non-Voting Common Stock or any part thereof for any fiscal year or for any other stock of the Corporation ranking junior or pari passu to the Class G Preferred Stock, unless the preferential dividend for such fiscal year or all prior years on all the Class G Preferred Stock outstanding shall have been declared and paid. Dividends on the Class G Preferred Stock shall be fully cumulative, whether or not in any fiscal year there shall be net profits or surplus available for the payment of dividends in such fiscal year.

 

i)

Class H Preferred Dividends. The holders of the Class H Preferred Stock shall be entitled to receive and the Corporation shall pay to them, as and when declared by the Board of Directors of the Corporation, out of the monies of the Corporation properly applicable to the dividends, a preferential, cumulative dividend, at a rate per share which is equal to the applicable interest rate payable on the $570,000,000USD original principal amount outstanding pursuant to the interest bearing promissory note issued by EUSHI Finance, Inc. in favor of Emera Incorporated dated on or about June 21, 2019 (the “Class H Preferred Share Coupon Yield”). Dividends shall be paid semi-annually on the following dates: June 15 and December 15 (individually each a “Class H Dividend Payment Date”), or on such other date or dates as the Board of Directors may determine, provided that any dividends accrued and unpaid on the prior Class H Dividend Payment Date of any year must be paid on the immediately following Class H Dividend Payment Date in such year, and shall be payable in cash, calculated and payable in United States dollars, which will accumulate and be calculated daily on an actual over 365 day count convention, at the Class H Preferred Share Coupon Yield applied on an annual basis to the Redemption Amount (as defined below). In addition, the Board of Directors of the Corporation may, at any time and from time to time, declare out of the monies of the Corporation properly applicable to the dividends, a special dividend (“Special Dividend”) in such amount per share as may be determined by the Board of Directors. No dividend shall at any time be declared or paid or set aside for the Common Stock, Non-Voting Common Stock or any part thereof for any fiscal year or for any other stock of the Corporation ranking junior or pari passu to the Class H Preferred Stock, unless the preferential dividend for such fiscal year or all prior years on all the Class H Preferred Stock outstanding shall have been declared and paid. Dividends on the Class H Preferred Stock shall be fully cumulative, whether or not in any fiscal year there shall be net profits or surplus available for the payment of dividends in such fiscal year.

 

j)

Class I Preferred Dividends. The holders of the Class I Preferred Stock shall be entitled to receive and the Corporation shall pay to them, as and when declared by the Board of Directors of the Corporation, out of the monies of the Corporation properly applicable to the dividends, a preferential, cumulative dividend, at a rate per share which is equal to the applicable federal mid-term rate, with annual

 

compounding (as prescribed under Section 1274(d) of the Internal Revenue Code), published for July of 2019 (the “Class I Preferred Share Coupon Yield”). Dividends shall be paid semi-annually on the following dates: June 15 and December 15 (individually each a “Class I Dividend Payment Date”), or on such other date or dates as the Board of Directors may determine, provided that any dividends accrued and unpaid on the prior Class I Dividend Payment Date of any year must be paid on the immediately following Class I Dividend Payment Date in such year, and shall be payable in cash, calculated and payable in United States dollars, which will accumulate and be calculated daily on an actual over 365 day count convention, at the Class I Preferred Share Coupon Yield applied on an annual basis to the Redemption Amount (as defined below). In addition, the Board of Directors of the Corporation may, at any time and from time to time, declare out of the monies of the Corporation properly applicable to the dividends, a special dividend (“Special Dividend”) in such amount per share as may be determined by the Board of Directors. No dividend shall at any time be declared or paid or set aside for the Common Stock, Non-Voting Common Stock or any part thereof for any fiscal year or for any other stock of the Corporation ranking junior or pari passu to the Class I Preferred Stock, unless the preferential dividend for such fiscal year or all prior years on all the Class I Preferred Stock outstanding shall have been declared and paid. Dividends on the Class I Preferred Stock shall be fully cumulative, whether or not in any fiscal year there shall be net profits or surplus available for the payment of dividends in such fiscal year.

 

k)

Class J Preferred Dividends. The holders of the Class J Preferred Stock shall be entitled to receive and the Corporation shall pay to them, as and when declared by the Board of Directors of the Corporation, out of the monies of the Corporation properly applicable to the dividends, a preferential, cumulative dividend, at a rate per share of 1.87 percent (the “Class J Preferred Share Coupon Yield”). Dividends shall be paid semi-annually on the following dates: June 15 and December 15 (individually each a “Class J Dividend Payment Date”), or on such other date or dates as the Board of Directors may determine, provided that any dividends accrued and unpaid on the prior Class J Dividend Payment Date of any year must be paid on the immediately following Class J Dividend Payment Date in such year, and shall be payable in cash, calculated and payable in United States dollars, which will accumulate and be calculated daily on an actual over 365 day count convention, at the Class J Preferred Share Coupon Yield applied on an annual basis to the Redemption Amount (as defined below). In addition, the Board of Directors of the Corporation may, at any time and from time to time, declare out of the monies of the Corporation properly applicable to the dividends, a special dividend (“Special Dividend”) in such amount per share as may be determined by the Board of Directors. No dividend shall at any time be declared or paid or set aside for the Common Stock, Non-Voting Common Stock or any part thereof for any fiscal year or for any other stock of the Corporation ranking junior or pari passu to the Class J Preferred Stock, unless the preferential dividend for such fiscal year or all prior years on all the Class J Preferred Stock outstanding shall have been declared and paid. Dividends on the Class J Preferred Stock shall be

 

fully cumulative, whether or not in any fiscal year there shall be net profits or surplus available for the payment of dividends in such fiscal year.

 

l)

Class K Preferred Dividends. The holders of the Class K Preferred Stock shall be entitled to receive and the Corporation shall pay to them, as and when declared by the Board of Directors of the Corporation, out of the monies of the Corporation properly applicable to the dividends, a preferential, cumulative dividend, at a rate per share of 1.87 percent (the “Class K Preferred Share Coupon Yield”). Dividends shall be paid semi-annually on the following dates: June 15 and December 15 (individually each a “Class K Dividend Payment Date”), or on such other date or dates as the Board of Directors may determine, provided that any dividends accrued and unpaid on the prior Class K Dividend Payment Date of any year must be paid on the immediately following Class K Dividend Payment Date in such year, and shall be payable in cash, calculated and payable in United States dollars, which will accumulate and be calculated daily on an actual over 365 day count convention, at the Class K Preferred Share Coupon Yield applied on an annual basis to the Redemption Amount (as defined below). In addition, the Board of Directors of the Corporation may, at any time and from time to time, declare out of the monies of the Corporation properly applicable to the dividends, a special dividend (“Special Dividend”) in such amount per share as may be determined by the Board of Directors. No dividend shall at any time be declared or paid or set aside for the Common Stock, Non-Voting Common Stock or any part thereof for any fiscal year or for any other stock of the Corporation ranking junior or pari passu to the Class K Preferred Stock, unless the preferential dividend for such fiscal year or all prior years on all the Class K Preferred Stock outstanding shall have been declared and paid. Dividends on the Class K Preferred Stock shall be fully cumulative, whether or not in any fiscal year there shall be net profits or surplus available for the payment of dividends in such fiscal year.

 

m)

Class L Preferred Dividends. The holders of the Class L Preferred Stock shall be entitled to receive and the Corporation shall pay to them, as and when declared by the Board of Directors of the Corporation, out of the monies of the Corporation properly applicable to the dividends, a preferential, cumulative dividend, at a rate per share of 4.54 percent (the “Class L Preferred Share Coupon Yield”). Dividends shall be paid semi-annually on the following dates: June 15 and December 15 (individually each a “Class L Dividend Payment Date”), or on such other date or dates as the Board of Directors may determine, provided that any dividends accrued and unpaid on the prior Class L Dividend Payment Date of any year must be paid on the immediately following Class L Dividend Payment Date in such year, and shall be payable in cash, calculated and payable in United States dollars, which will accumulate and be calculated daily on an actual over 365 day count convention, at the Class L Preferred Share Coupon Yield applied on an annual basis to the Redemption Amount (as defined below). In addition, the Board of Directors of the Corporation may, at any time and from time to time, declare out of the monies of the Corporation properly applicable to the dividends, a special dividend (“Special Dividend”) in such amount per share as may be

 

determined by the Board of Directors. No dividend shall at any time be declared or paid or set aside for the Common Stock, Non-Voting Common Stock or any part thereof for any fiscal year or for any other stock of the Corporation ranking junior or pari passu to the Class L Preferred Stock, unless the preferential dividend for such fiscal year or all prior years on all the Class L Preferred Stock outstanding shall have been declared and paid. Dividends on the Class L Preferred Stock shall be fully cumulative, whether or not in any fiscal year there shall be net profits or surplus available for the payment of dividends in such fiscal year.

 

n)

Class M Preferred Dividends. The holders of the Class M Preferred Stock shall be entitled to receive and the Corporation shall pay to them, as and when declared by the Board of Directors of the Corporation, out of the monies of the Corporation properly applicable to the dividends, a preferential, cumulative dividend, at a rate per share of 0.10 percent (the “Class M Preferred Share Coupon Yield”). Dividends shall be paid semi-annually on the following dates: June 15 and December 15 (individually each a “Class M Dividend Payment Date”), or on such other date or dates as the Board of Directors may determine, provided that any dividends accrued and unpaid on the prior Class M Dividend Payment Date of any year must be paid on the immediately following Class M Dividend Payment Date in such year, and shall be payable in cash, calculated and payable in United States dollars, which will accumulate and be calculated daily on an actual over 365 day count convention, at the Class M Preferred Share Coupon Yield applied on an annual basis to the Redemption Amount (as defined below). In addition, the Board of Directors of the Corporation may, at any time and from time to time, declare out of the monies of the Corporation properly applicable to the dividends, a special dividend (“Special Dividend”) in such amount per share as may be determined by the Board of Directors. No dividend shall at any time be declared or paid or set aside for the Common Stock, Non-Voting Common Stock or any part thereof for any fiscal year or for any other stock of the Corporation ranking junior or pari passu to the Class M Preferred Stock, unless the preferential dividend for such fiscal year or all prior years on all the Class M Preferred Stock outstanding shall have been declared and paid. Dividends on the Class M Preferred Stock shall be fully cumulative, whether or not in any fiscal year there shall be net profits or surplus available for the payment of dividends in such fiscal year.

 

o)

Class N Preferred Dividends. The holders of the Class N Preferred Stock shall be entitled to receive and the Corporation shall pay to them, as and when declared by the Board of Directors of the Corporation, out of the monies of the Corporation properly applicable to the dividends, a preferential, cumulative dividend, at a rate per share of 0.833 percent (the “Class N Preferred Share Coupon Yield”). Dividends shall be paid semi-annually on the following dates: June 15 and December 15 (individually each a “Class N Dividend Payment Date”), or on such other date or dates as the Board of Directors may determine, provided that any dividends accrued and unpaid on the prior Class N Dividend Payment Date of any year must be paid on the immediately following Class N Dividend Payment Date in such year, and shall be payable in cash, calculated and payable in United States

 

dollars, which will accumulate and be calculated daily on an actual over 365 day count convention, at the Class N Preferred Share Coupon Yield applied on an annual basis to the Redemption Amount (as defined below). In addition, the Board of Directors of the Corporation may, at any time and from time to time, declare out of the monies of the Corporation properly applicable to the dividends, a special dividend (“Special Dividend”) in such amount per share as may be determined by the Board of Directors. No dividend shall at any time be declared or paid or set aside for the Common Stock, Non-Voting Common Stock or any part thereof for any fiscal year or for any other stock of the Corporation ranking junior or pari passu to the Class N Preferred Stock, unless the preferential dividend for such fiscal year or all prior years on all the Class N Preferred Stock outstanding shall have been declared and paid. Dividends on the Class N Preferred Stock shall be fully cumulative, whether or not in any fiscal year there shall be net profits or surplus available for the payment of dividends in such fiscal year.

 

p)

Class O Preferred Dividends. The holders of the Class O Preferred Stock shall be entitled to receive and the Corporation shall pay to them, as and when declared by the Board of Directors of the Corporation, out of the monies of the Corporation properly applicable to the dividends, a preferential, cumulative dividend, at a rate per share of 2.639 percent (the “Class O Preferred Share Coupon Yield”). Dividends shall be paid semi-annually on the following dates: June 15 and December 15 (individually each a “Class O Dividend Payment Date”), or on such other date or dates as the Board of Directors may determine, provided that any dividends accrued and unpaid on the prior Class O Dividend Payment Date of any year must be paid on the immediately following Class O Dividend Payment Date in such year, and shall be payable in cash, calculated and payable in United States dollars, which will accumulate and be calculated daily on an actual over 365 day count convention, at the Class O Preferred Share Coupon Yield applied on an annual basis to the Redemption Amount (as defined below). In addition, the Board of Directors of the Corporation may, at any time and from time to time, declare out of the monies of the Corporation properly applicable to the dividends, a special dividend (“Special Dividend”) in such amount per share as may be determined by the Board of Directors. No dividend shall at any time be declared or paid or set aside for the Common Stock, Non-Voting Common Stock or any part thereof for any fiscal year or for any other stock of the Corporation ranking junior or pari passu to the Class O Preferred Stock, unless the preferential dividend for such fiscal year or all prior years on all the Class O Preferred Stock outstanding shall have been declared and paid. Dividends on the Class O Preferred Stock shall be fully cumulative, whether or not in any fiscal year there shall be net profits or surplus available for the payment of dividends in such fiscal year.

 

q)

Class P Preferred Dividends. The holders of the Class P Preferred Stock shall be entitled to receive and the Corporation shall pay to them, as and when declared by the Board of Directors of the Corporation, out of the monies of the Corporation properly applicable to the dividends, a preferential, cumulative dividend, at a rate per share of 7.625 percent (the “Class P Preferred Share Coupon Yield”).

 

Dividends shall be paid semi-annually on the following dates: June 15 and December 15 (individually each a “Class P Dividend Payment Date”), or on such other date or dates as the Board of Directors may determine, provided that any dividends accrued and unpaid on the prior Class P Dividend Payment Date of any year must be paid on the immediately following Class P Dividend Payment Date in such year, and shall be payable in cash, calculated and payable in United States dollars, which will accumulate and be calculated daily on an actual over 365 day count convention, at the Class P Preferred Share Coupon Yield applied on an annual basis to the Redemption Amount (as defined below). In addition, the Board of Directors of the Corporation may, at any time and from time to time, declare out of the monies of the Corporation properly applicable to the dividends, a special dividend (“Special Dividend”) in such amount per share as may be determined by the Board of Directors. No dividend shall at any time be declared or paid or set aside for the Common Stock, Non-Voting Common Stock or any part thereof for any fiscal year or for any other stock of the Corporation ranking junior or pari passu to the Class P Preferred Stock, unless the preferential dividend for such fiscal year or all prior years on all the Class P Preferred Stock outstanding shall have been declared and paid. Dividends on the Class P Preferred Stock shall be fully cumulative, whether or not in any fiscal year there shall be net profits or surplus available for the payment of dividends in such fiscal year.

 

r)

Liquidation, Dissolution or Winding Up. Upon the winding up or dissolution of the Corporation whether voluntary or involuntary or for reorganization or otherwise or upon any distribution of capital, no payment or distribution shall be made to the holders of the Common Stock, Non-Voting Common Stock or any other classes of shares of the Corporation ranking junior or pari passu to the Preferred Stock with respect to the payment of dividends until there has been paid to the holders of all of the Preferred Stock one hundred percent (100%) of the Redemption Price (as defined below), but subject to this provision, the surplus assets, if any, shall belong to and be divided among the holders of the Common Stock and Non-Voting Common Stock of the Corporation only. If upon any such liquidation, dissolution or winding up of the Corporation the assets of the Corporation available for distribution to its stockholders shall be insufficient to pay the holders of shares of Preferred Stock the full amount to which they shall be entitled under this subsection, the holders of shares of Preferred Stock shall share ratably in any distribution of the assets available for distribution in proportion to the respective amounts which would otherwise be payable in respect of the shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full.

 

s)

Voting. The holders of the Preferred Stock shall not be entitled to vote at meetings of the shareholders of the Corporation nor to attend or receive notice of such meetings.

 

t)

Redemption. Preferred Stock may be redeemed by the Corporation at any time in cash at a redemption price equal to the outstanding original principal amount of the Preferred Stock to be redeemed as of the date of the Redemption, calculated

 

on a per share basis (the “Redemption Amount”), together with any dividends accumulated on the Preferred Stock to be redeemed, but undeclared or declared but unpaid through the date of payment (cumulatively, the “Redemption Price”), by providing seven (7) days written notice to the holders of the Preferred Stock, provided redemptions shall be subject to applicable limitations under the Delaware General Corporate Law (“DGCL”).

 

u)

Required Redemption. Any holder of Preferred Stock may require the Corporation to redeem its shares at any time in cash, to the extent permitted under the DGCL, at its Redemption Price, as calculated above, by providing seven (7) days written notice to the Corporation, provided redemptions shall be subject to applicable limitations under the DGCL.

 

v)

Not Convertible. The Preferred Stock is not convertible into any other class of shares of the Corporation.

 

SECOND: That thereafter, in lieu of a special meeting of the stockholders, by unanimous written consent of the holders of all of the outstanding shares of the Corporation, said shares were voted in favor of the Amendment.

 

THIRD: That said Amendment was duly adopted in accordance with the provisions of Section 228 of the General Corporation Law of the State of Delaware.

 

IN WITNESS WHEREOF, the Corporation has caused this Certificate to be signed this 14^th of June, 2024.

 

[Separate signature page follows]

 

STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF INCORPORATION
(Continued)

 

	/s/ Brian C. Curry
	Printed Name:  Brian C. Curry
	Its: Secretary

 

Exhibit 3.6

 

BYLAWS

 

OF

 

EMERA US HOLDINGS INC.

 

ARTICLE I: IDENTIFICATION

 

Section 1.1 Name. The name of the Corporation is “Emera US Holdings Inc.”

 

Section 1.2 Seal. Upon the seal of the Corporation shall appear the name of the Corporation and the state and year of incorporation, and the words “Corporate Seal.”

 

Section 1.3 Offices. The registered office of the Corporation shall be in the City of Wilmington, County of New Castle, State of Delaware. The Corporation may also have other offices at such other places, either within or without the State of Delaware, as the Board may determine or as the activities of the Corporation may require.

 

ARTICLE II; MEETINGS OF STOCKHOLDERS

 

Section 2.1 Place of Meetings. Meetings of the stockholders shall be held at such place, either within or without the State of Delaware, as may be fixed from time to time by the Board of Directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof.

 

Section 2.2 Annual Meeting. An annual meeting of the stockholders for the election of directors and the transaction of such other business as may properly come before the meeting, shall be held each year on such date in the first six months of the Corporation’s fiscal year as shall be designated by the president, or in the absence of such designation, on the first Tuesday of the seventh month of the fiscal year, if not a legal holiday, and if a legal holiday, then on the next succeeding business day, or on such other date and time as shall be designated from time to time by the Board of Directors.

 

Section 2.3 Special Meeting. Special meetings of the stockholders may be called by the Board of Directors or the president and shall be called by the president or secretary at the request in writing of a majority of the Board of Directors. Such request shall state the purpose or purposes of the proposed meeting.

 

Section 2.4 Notice and Waiver. Written notice of each meeting of stockholders, stating the place, day and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days prior to each meeting, to each stockholder of record entitled to vote at such meeting by leaving such notice with him personally or by transmitting such notice with confirmed delivery (including, by telex, cable or other form of recorded communication, provided that delivery of such notice in written form is confirmed in a writing) to his residence or usual place of business, or by depositing such notice in the mails in a postage prepaid envelope addressed to him at his post office address as it appears on the corporate records of the Corporation. Notice of any meeting of

 

stockholders may be waived in writing by all stockholders entitled to vote at such meeting. Attendance at a meeting by any stockholder shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.

 

Section 2.5 Stockholder List. The officer who has charge of the stock ledger of the Corporation shall, at least ten days before each meeting of stockholders, prepare a complete alphabetically addressed list of the stockholders entitled to vote at the meeting, with the number of shares held by each. Said list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall be available for inspection at the meeting.

 

Section 2.6 Quorum and Required Vote. The holders of a majority of the stock entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of stockholders except as otherwise specially provided by these Bylaws, by the Certificate of Incorporation or by statute. The affirmative vote, at a meeting of stockholders duly held and at which a quorum is present, of a majority of the voting power of the shares represented at such meeting which are entitled to vote on the subject matter shall be the act of the stockholders, except as is otherwise specially provided by a Bylaw, by the Certificate of Incorporation or by statute. If less than a majority of such outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time without further notice of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 

Section 2.7 Voting. Unless otherwise provided in the Certificate of Incorporation, each holder of voting stock shall be entitled to vote in person or by proxy at each meeting and he shall have one vote for each share of voting stock registered in his name. However, no proxy shall be voted three years after the date thereof, unless the proxy provides for a longer period.

 

Section 2.8 Action Without a Meeting. Any action which may be taken at a meeting of stockholders may be taken without a meeting, if consent in writing, setting forth such action, is signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous consent shall be given to those stockholders who have not so consented.

 

ARTICLE III: DIRECTORS

 

Section 3.1 Number. The number of directors who will constitute the whole Board of Directors shall not be less than one (1) nor more than seven (7). The initial Board of Directors shall consist of one (1) director. The directors need not be stockholders. Thereafter, within the limits specified above, the total number of directors may be increased or decreased from time to time by resolution of the Board of Directors.

 

Section 3.2 Election. Members of the initial Board of Directors as elected at the organization meeting shall hold office until the first annual meeting of stockholders and until their successors have been elected and qualified. At each annual meeting of stockholders, directors shall be elected to hold office until the next succeeding annual meeting of stockholders and until their successors are elected and qualified or until their earlier resignation, removal from office or death.

 

Section 3.3 Regular Meetings. A regular meeting of a newly elected Board of Directors shall be held without other notice than this Bylaw, immediately after, and at the same place as, the annual meeting of stockholders. Other regular meetings of the Board of Directors may be held without notice at such time and place as the Board may from time to time determine.

 

Section 3.4 Other Meetings. Other meetings of the Board may be called by the president on two days’ notice to each director, either personally, or by telephone, telex, telegram or other form of recorded communication, or by mail. Said notice may be waived by a written waiver signed by any director who does not receive notice of such meeting. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened.

 

Section 3.5 Quorum. At all meetings of the Board, a majority of directors shall constitute a quorum for the transaction of business. The act of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors unless a greater number is specifically required by the Bylaws, by the Certificate of Incorporation or by statute. A meeting may be adjourned by less than a quorum if a quorum is not present at the meeting. A director may participate at a meeting of the Board of Directors by means of a conference telephone or similar communications equipment provided such equipment enables all directors at the meeting to hear one another.

 

Section 3.6 Committees of Directors. The Board of Directors, by resolution adopted by a majority of the entire Board, may designate one or more directors to constitute a committee. Such committee, to the extent provided in the resolution of the Board, shall have and may exercise the powers of the Board of Directors in the management of the business, property and affairs of the Corporation, and shall keep records of its acts and proceedings and report the same to the Board of Directors as and when required; but no such committee shall have the power or authority to amend the

 

Corporation’s Certificate of Incorporation or Bylaws, adopt an agreement of merger or consolidation, recommend to the stockholders the sale, lease or exchange of all or substantially all of the Corporation’s property and assets or the dissolution of the Corporation, declare a dividend or authorize the issuance of stock. Any director may be removed from a committee with or without cause by the affirmative vote of a majority of the entire Board of Directors.

 

Section 3.7 Action Without Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting, if all members of the Board or committee, as the case may be, consent thereto in writing, and such written consent is filed with the minutes of proceedings of the Board or committee.

 

Section 3.8 Resignation and Removal. Unless otherwise provided in any contract with the Corporation, any director may resign or be removed at any time. A director who intends to resign shall give written notice to the chief executive officer or to the secretary. Removal of a director, with or without cause, may be effected by the affirmative vote of the holders of a majority of the stock entitled to vote.

 

Section 3.9 Vacancies. Any vacancy occurring in the Board of Directors, including a vacancy resulting from an increase in the number of directors, may be filled by the affirmative vote of a majority of the remaining directors though less than a quorum of the Board. A director elected to fill a vacancy shall be elected for the unexpired term of his predecessor and until his successor is duly elected and qualified.

 

Section 3.10 Compensation. The directors may be reimbursed for any expenses incurred by them in attendance at any meeting of the Board of Directors or of any of its committees. Every director may be paid a stated salary as director and/or a fixed sum for attendance at each meeting at which he is present. No payments or reimbursements described herein shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.

 

ARTICLE IV: OFFICERS

 

Section 4.1 Election. A president, a secretary, a treasurer and other officers and assistant officers shall be elected by the Board of Directors to hold office until their successors are elected and qualified or until their earlier removal or resignation. More than two offices may be held by the same person.

 

Section 4.2 Chairman. If one shall be elected, the chairman shall preside at meetings of stockholders and directors, discharging all duties incumbent upon a presiding officer, and shall perform such other duties as the Bylaws provide and as the Board of Directors may prescribe.

 

Section 4.3 President. The powers and duties of the president shall include executive and operational management of the Corporation, subject to the control of the Board, and responsibility for carrying out all orders and directions of the Board. The President shall report to the Board of Directors.

 

Section 4.4 Vice President. Vice presidents, if and when any shall be elected, shall have such powers and perform such duties as the president or the Board may from time to time assign and shall perform such other duties as may be prescribed by these Bylaws. At the request of the president, or in case of his absence or inability to act, the vice president, so appointed, shall perform the duties of the president and, when so acting, shall have all the powers of, and be subject to all the restrictions upon, the president.

 

Section 4.5 Secretary. The secretary shall keep true and complete records of the proceedings of the meetings of the stockholders, the Board of Directors and, any committees of directors and shall file any written consents of the stockholders, the Board of Directors and any committees of directors with these records. It shall be the duty of the secretary to be custodian of the records and of the seal of the Corporation. The secretary shall also attend to the giving of all notices and shall perform such other duties as the Bylaws may provide or the Board of Directors may assign.

 

Section 4.6 Assistant Secretary. If one shall be elected, the assistant secretary shall have such powers and perform such duties as the president, secretary or the Board may from time to time assign and shall perform such other duties as may be prescribed by these Bylaws. At the request of the secretary, or in case of his absence or inability to act, the assistant secretary shall perform the duties of the secretary and, when so acting, shall have all the powers of, and be subject to all the restrictions upon, the secretary.

 

Section 4.7 Treasurer. The treasurer shall keep correct and complete records of account showing accurately at all times the financial condition of the Corporation. The treasurer shall also act as legal custodian of all moneys, notes, securities, and other valuables that may from time to time come into the possession of the Corporation, and shall promptly deposit all funds of the Corporation coming into his hands in the bank or other depository designated by the Board of Directors and shall keep this bank account in the name of the Corporation. Whenever requested by the Board of Directors, the treasurer shall furnish a statement of the financial condition of the Corporation and shall perform such other duties as the Bylaws may provide and the Board of Directors may assign.

 

Section 4.8 Assistant Treasurer. If one shall be elected, the assistant treasurer shall have such powers and perform such duties as the president, treasurer or Board may from time to time assign and shall perform such other duties as may be prescribed by these Bylaws.

 

At the request of the treasurer, or in case of his absence or inability to act, the assistant treasurer shall perform the duties of the treasurer and, when so acting, shall have all the powers of, and be subject to all the restrictions upon, the treasurer.

 

Section 4.9 Other Officers. Such other officers as are appointed shall exercise such duties and have such powers as the Board of Directors may assign.

 

Section 4.10 Transfer of Authority. In case of the absence of any officer of the Corporation or for any other reason that the Board of Directors may deem sufficient, the Board may transfer the powers or duties of that officer to any other officer or to any

 

director or employee of the Corporation, provided that a majority of the entire Board approves.

 

Section 4.11 Resignation and Removal. Unless otherwise provided in any contract with the Corporation, any officer may resign or be removed at any time. An officer who intends to resign shall give written notice to the chief executive officer or to the secretary. Removal of an officer, with or without cause, may be effected by the Board of Directors.

 

Section 4.12 Vacancies. A vacancy occurring in any office may be filled for the unexpired portion of the term of office by the Board of Directors.

 

ARTICLE V: CAPITAL STOCK

 

Section 5.1 Consideration and Payment. The capital stock may be issued for such consideration, not less than the par value of any such stock expressed in dollars, as shall be fixed by the Board of Directors. Payment of such consideration may be made, in whole or in part, in money, other tangible or intangible property, labor or services performed. No certificate shall be issued for any share until the share is fully paid.

 

Section 5.2 Stock Certificate. Every holder of the capital stock of the Corporation shall be entitled to a certificate signed by, or in the name of the Corporation, by the chairman or vice-chairman, if any, or the president or a vice-president and by the secretary or an assistant secretary or the treasurer or an assistant treasurer. Any of or all the signatures on the certificate may be a facsimile. Upon each such certificate shall appear such legend or legends as may be required by law or by any contract or agreement to which the Corporation is a party. No certificate shall be valid without such signatures or legends as are required hereby.

 

Section 5.3 Lost Certificate. Whenever a person shall request the issuance of a certificate of stock to replace a certificate alleged to have been lost by theft, destruction or otherwise, the Board of Directors shall require that such person make an affidavit to the fact of such loss before the Board shall authorize the requested issuance. Before issuing a new certificate the Board may also require a bond of indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost.

 

Section 5.4 Transfer of Stock. The Corporation or its transfer agent shall register a transfer of a stock certificate, issue a new certificate and cancel the old certificate upon presentation for transfer of a stock certificate duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer if there has been compliance with any applicable tax law relating to the collection of taxes and after the Corporation or its agent has discharged any duty to inquire into any adverse claims of which the Corporation or agent has notice. Notwithstanding the foregoing, no such transfer shall be effected by the Corporation or its transfer agent if such transfer is prohibited by law, by the Certificate of Incorporation or a Bylaw of the Corporation or by any contract or agreement to which the Corporation is a party.

 

ARTICLE VI: DIVIDENDS AND RESERVES

 

Section 6.1 Dividends. Subject to any limitations or conditions contained in the Certificate of Incorporation, dividends may be declared by a resolution duly adopted by the Board of Directors and may be paid in cash, property or in shares of the capital stock of the Corporation.

 

Section 6.2 Reserves. Before payment of any dividend, the Board of Directors may set aside out of any funds available for dividends such sum or sums as the Board, in its absolute discretion, deems proper as a reserve fund to meet contingencies or for equalizing dividends or to repair or maintain property or to serve such other purposes conducive to the interests of the Corporation.

 

ARTICLE VII: SPECIFIC CORPORATE ACTIONS

 

Section 7.1. All checks, drafts, notes, bonds, bills of exchange, and orders for the payment of money of the Corporation; all deeds, mortgages and other written contracts and agreements to which the Corporation shall be a party; and all assignments or endorsements of stock certificates, registered bonds or other securities owned by the Corporation shall be signed by any officer or the Chairman of the Board of the Corporation and, if required by law, attested by the secretary or an assistant secretary, unless otherwise directed by the Board of Directors or otherwise required by statute.

 

ARTICLE VIII: FISCAL YEAR

 

Section 8.1. The fiscal year of the Corporation shall commence on January 1 and end on December 31 of each year.

 

ARTICLE IX: INDEMNIFICATION

 

Section 9.1 Indemnification. (a) The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he is or was a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.

 

(b)       The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation and except that no indemnification shall be made in respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

 

(c)       The Corporation may, at the discretion of the Board of Directors, indemnify all employees and agents of the Corporation (other than directors and officers) to the extent that directors and officers shall be indemnified pursuant to subsections (a) and (b).

 

(d)       To the extent that a present or former director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of this Article IX, Section 1, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith.

 

(e)       Any indemnification under subsections (a) and (b) of this Article IX, Section 1 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the present or former director or officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in subsections (a) and (b). Such determination shall be made (1) by majority vote of the directors who are not parties to such action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (3) by the stockholders.

 

(f)       Expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding as authorized by the Board of Directors in the specific case upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if it is ultimately determined that such person is not entitled to be indemnified by the Corporation as authorized in this Section. He shall not repay the amount if it shall be ultimately determined that he is entitled to be indemnified by this section.

 

(g)       The indemnification and advancement of expenses provided by, or granted pursuant to, this Section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.

 

(h)       The Corporation is authorized, according to the discretion of the Board of Directors, to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation must indemnify him against such liability under the provisions of this Section.

 

(i)       For purposes of this Section, references to “the Corporation” shall include, in addition to the Corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Section with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued.

 

(j)       For purposes of this section, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with respect to any employee benefit plans; and references to “serving at the request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the best interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this Section.

 

ARTICLE X: AMENDMENT OF BYLAWS

 

Section 10.1 Amendment. These Bylaws may be altered, amended or repealed or new Bylaws may be adopted by the stockholders at any annual or special meeting of stockholders or by the Board of Directors at any meeting of the Board of Directors,

 

provided that notice of such amendment, repeal or adoption of new Bylaws be included in the notice of such meeting.

 

 

Exhibit 4.1

 

[FORM OF NOTE]

 

THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE REGISTRAR MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 3.05 OF THE INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 3.05 OF THE INDENTURE AND (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 3.10 OF THE INDENTURE.

 

UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

FORM OF 7.625% SERIES NOTE DUE 2054
FACE OF NOTE

 

EUSHI FINANCE, INC.
7.625% Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2054

 

No. [•] $[•]

CUSIP No.: [•] 

ISIN No.: [•]

 

EUSHI FINANCE, INC., a corporation duly organized and existing under the laws of the State of Delaware (such corporation, and its successors and assigns under the Indenture hereinafter referred to, being herein called the “Issuer”), promises to pay to Cede & Co., or registered assigns, the principal sum of [•] Million Dollars ($[•]) on December 15, 2054 (the “Maturity Date”), and to pay interest thereon (i) from and including the June 18, 2024 (the “Original Issue Date”) to but excluding December 15, 2029 (the “First Reset Date”) at the rate of 7.625% per annum and (ii) from and including the First Reset Date, during each Reset Period (as defined on the reverse hereof) at a rate per annum equal to the Five-year U.S. Treasury Rate (as defined on the reverse hereof) as of the most recent Reset Interest Determination Date (as defined on the reverse hereof) plus a spread of 3.136%, to be reset on each Reset Date (as defined on the reverse hereof).

 

Interest Payment Dates: June 15 and December 15, beginning December 15, 2024, subject to the Issuer’s right to defer interest payments pursuant to the provisions set forth below.

 

Record Dates: (i) if all of the Notes are in book-entry form represented by one or more Global Securities, the Business Day immediately preceding the applicable Interest Payment Date and (ii) if any of the Notes are not in book-entry form represented by one or more Global Securities, the 15th calendar day preceding such Interest Payment Date (whether or not a Business Day) (each such date in clauses (i) and (ii), a “Regular Record Date”).

 

Unless the certificate of authentication hereon has been duly executed by the Trustee by manual signature, this Security shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.

 

IN WITNESS WHEREOF, the Issuer has caused this Security to be signed manually or by facsimile by one of its duly authorized officers.

 

Dated: June 18, 2024

 

	EUSHI FINANCE, INC.
	By:
		Name:
		Title:

 

	By:
		Name:
		Title:

 

 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

	EQUINITI TRUST COMPANY, LLC, as Trustee
	By:
		Authorized Signatory

REVERSE SIDE OF NOTE

 

This Security is one of a duly authorized issue of securities of the Issuer designated as its 7.625% Fixed-to-Fixed Reset Rate Notes due 2054 (the “Securities”), initially in aggregate principal amount of $[                ], which may be issued under the Indenture dated as of June 18, 2024 (the “Original Indenture”), as supplemented by the First Supplemental Indenture dated as of June 18, 2024 (the “First Supplemental Indenture” and, the Original Indenture as supplemented by the First Supplemental Indenture, the “Indenture”), by and among the Issuer, Emera Incorporated (the “Company”), Emera US Holdings Inc. (“EUSHI” and together with the Company, the “Guarantors”), and Equiniti Trust Company, LLC, as trustee (the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Issuer, the Guarantors, the Trustee and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is a global Security initially representing $[              ] aggregate principal amount of the Securities of this series.

 

Interest on the Notes will accrue from the Original Issue Date and will be payable semi-annually in arrears on June 15 and December 15 (each, an “Interest Payment Date”) of each year, beginning on December 15, 2024, to Holders at the close of business on the Regular Record Date for the applicable Interest Payment Date, subject to the Company’s right to defer interest payments pursuant to the provisions set forth below.

 

Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months. The applicable interest rate for each Reset Period will be determined by the Calculation Agent (as defined below), as of the applicable Reset Interest Determination Date, in accordance with following provisions:

 

As provided above, the applicable interest rate for each Reset Period will be determined by the Calculation Agent, as of the applicable Reset Interest Determination Date. Promptly upon such determination, the Calculation Agent will notify the Company of the interest rate for the Reset Period and the Company will promptly notify, or cause the Calculation Agent to promptly notify, in writing, the Trustee and each Paying Agent of such interest rate. The Calculation Agent’s determination of any interest rate, and its calculation of the amount of interest for any Interest Payment Period beginning on or after the First Reset Date, will be on file at the Company’s principal offices, will be made available to any Holder or beneficial owner of the Notes upon request and will be final and binding in the absence of manifest error.

 

If an Interest Payment Date, redemption date, or maturity date falls on a day that is not a Business Day, payment will be made on the next succeeding Business Day with the same force and effect as if made on such payment date.

 

“Business Day” means, unless otherwise expressly stated, any day other than (i) a Saturday or Sunday or (ii) a day on which banks and trust companies in The City of New York are authorized or obligated by law, regulation or executive order to remain closed.

 

“Calculation Agent” means, at any time, the entity appointed by the Issuer and serving as such agent with respect to the Notes at such time. Unless the Issuer has validly called all of the outstanding Notes for redemption on a redemption date occurring prior to the First Reset Date, the Issuer will appoint a Calculation Agent for the Notes prior to the Reset Interest Determination Date immediately preceding the First Reset Date; provided that, if the Issuer has called all of the outstanding Notes for redemption on a redemption date occurring prior to the First Reset Date but the Issuer does not redeem all of the outstanding Notes on such redemption date, the Issuer will appoint a Calculation Agent for the Notes as promptly as practicable after such proposed redemption date. The Issuer may terminate any such appointment and may appoint a successor Calculation Agent at any time and from time to time (so long as there shall always be a Calculation Agent in respect of the Notes when so required). The Issuer may appoint the Company or an affiliate of the Company as calculation agent.

 

“Five-year U.S. Treasury Rate” means, as of any Reset Interest Determination Date, (i) an interest rate (expressed as a decimal) determined to be the per annum rate equal to the arithmetic mean of the yields to maturity for U.S. Treasury securities adjusted to constant maturity with a maturity of five years from the next Reset Date and trading in the public securities markets, for the five consecutive Business Days immediately prior to the respective Reset Interest Determination Date as published (or, if fewer than five consecutive Business Days are so published on the applicable Reset Interest Determination Date, for such number of Business Days published) in the most recent H.15, or (ii) if there is no such published U.S. Treasury security with a maturity of five years from the next Reset Date and trading in the public securities markets, then the rate will be determined by interpolation between the arithmetic mean of the yields to maturity for each of the two series of U.S. Treasury securities adjusted to constant maturity trading in the public securities markets, (A) one maturing as close as possible to, but earlier than, the Reset Date following the next succeeding Reset Interest Determination Date, and (B) the other maturing as close as possible to, but later than, the Reset Date following the next succeeding Reset Interest Determination Date, in each case for the five consecutive Business Days immediately prior to the respective Reset Interest Determination Date as published in the most recent H.15. If the Five-year U.S. Treasury Rate cannot be determined pursuant to the methods described in clause (i) or (ii) above, then the Five-year U.S. Treasury Rate will be the same interest rate determined for the prior Reset Interest Determination Date or, if the Five-year U.S. Treasury Rate cannot be so determined as of the Reset Interest Determination Date preceding the First Reset Date, then the interest rate applicable for the Reset Period beginning on and including the First Reset Date will be deemed to be 7.625% per annum, which is the same interest rate as in effect from and including the Original Issue Date to but excluding the First Reset Date.

 

“H.15” means the statistical release designated as such, or any successor publication, published by the Board of Governors of the U.S. Federal Reserve System (or any successor thereto).

 

“Interest Payment Period” means the semi-annual period from and including an Interest Payment Date to but excluding the next succeeding Interest Payment Date, except for the first Interest Payment Period which shall be the period from and including the Original Issue Date to but excluding December 15, 2024.

 

“most recent H.15” means the H.15 published closest in time but prior to the close of business on the second Business Day prior to the applicable Reset Date.

 

“redemption date” when used with respect to any Notes to be redeemed, means the date fixed for such redemption pursuant to the First Supplemental Indenture.

 

“Reset Date” means the First Reset Date and December 15 of every fifth year after 2029.

 

“Reset Interest Determination Date” means, in respect of any Reset Period, the day falling two Business Days prior to the first day of such Reset Period.

 

“Reset Period” means the period from and including the First Reset Date to but excluding the next following Reset Date and thereafter each period from and including a Reset Date to but excluding the next following Reset Date, or the maturity date or date of redemption or repayment, as the case may be.

 

Payment of the principal of (and premium, if any) and interest on this Security will be made at the office or agency of the Issuer maintained for that purpose in the Borough of Manhattan, The City of New York, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that payment of interest may be made at the option of the Issuer (i) by check mailed to the address of the Person entitled thereto as such address shall appear on the Security Register or (ii) by wire transfer to an account maintained in the United States or Canada by the payee. Notwithstanding the foregoing, payments of principal, premium, if any, and interest on a global Security registered in the name of a Depositary or its nominee will be made by wire transfer of immediately available funds. Principal paid in relation to any Security of this series at Stated Maturity shall be paid to the Holder of such Security only upon presentation and surrender of such Security to such office or agency referred to above.

 

As provided for in the Indenture, the Issuer may from time to time without notice to, or the consent of, the Holders of the Securities, create and issue additional Securities of this series under the Indenture, equal in rank to the Outstanding Securities of this series in all respects (or in all respects except for the payment of interest accruing prior to the issue date of the new Securities of this series or except for the first payment of interest following the issue date of the new Securities of this series) so that the new Securities of this series shall be consolidated and form a single series with the Outstanding Securities of this series and have the same terms as to status, redemption or otherwise as the Outstanding Securities of this series; provided that, if the additional Securities of this series are not fungible with the Outstanding Securities of this series for U.S. federal income tax purposes, the additional Securities shall have a separate CUSIP and/or ISIN number.

 

The Issuer shall pay to the Holder of this Security (i) such Additional Amounts and other amounts as may be payable under Section 10.05 of the Original Indenture and (ii) such Additional Interest as may be payable pursuant to the Registration Rights Agreement. Whenever in this Security there is mentioned, in any context, the payment of principal (or premium, if any), interest or any other amount payable under or with respect to this Security, such mention shall be deemed to include mention of the payment of Additional Amounts and/or Additional Interest to the extent that, in such context, Additional Amounts and/or Additional Interest are, were or would be payable in respect thereof.

 

Optional Interest Deferral. So long as no Event of Default with respect to the Notes has occurred and is continuing, the Issuer may, at its option, defer interest payments on the Notes, from time to time, for one or more deferral periods of up to 20 consecutive semi-annual Interest Payment Periods (each such deferral period, commencing on the interest payment date on which the first such deferred interest payment otherwise would have been made, an “Optional Deferral Period”), except that no such Optional Deferral Period may extend beyond the final maturity date of the Notes or end on a day other than the day immediately preceding an Interest Payment Date. During any Optional Deferral Period, interest on the Notes will continue to accrue at the then-applicable interest rate on the Notes (as reset from time to time on any Reset Date occurring during such Optional Deferral Period in accordance with the terms of the Notes). In addition, during any Optional Deferral Period, interest on the deferred interest (“compound interest”) will accrue at the then-applicable interest rate on the Notes (as reset from time to time on any Reset Date occurring during such Optional Deferral Period in accordance with the terms of the Notes), compounded semi-annually, to the extent permitted by applicable law. No interest will be due or payable on the Notes during an Optional Deferral Period, except upon a redemption of any Notes on any redemption date during such Optional Deferral Period (in which case all accrued and unpaid interest (including, to the extent permitted by applicable law, any compound interest) on the Notes to be redeemed to but excluding such redemption date will be due and payable on such redemption date), or unless the principal of and interest on the Notes shall have been declared due and payable as the result of an Event of Default with respect to the Notes (in which case all accrued and unpaid interest, including, to the extent permitted by applicable law, any compound interest, on the Notes shall become due and payable). All references in the Notes and, insofar as it relates to the Notes, the Indenture, to “interest” on the Notes shall be deemed to include any such deferred interest and, to the extent permitted by applicable law, any compound interest, unless otherwise expressly stated or the context otherwise requires.

 

Before the end of any Optional Deferral Period that is shorter than 20 consecutive semi-annual Interest Payment Periods, the Issuer may elect, at its option, to extend such Optional Deferral Period, so long as the entire Optional Deferral Period does not exceed 20 consecutive semi-annual Interest Payment Periods or extend beyond the final maturity date of the Notes. The Company may also elect, at its option, to shorten the length of any Optional Deferral Period. No Optional Deferral Period (including as extended or shortened) may end on a day other than the day immediately preceding an Interest Payment Date. At the end of any Optional Deferral Period, if all amounts then due on the Notes, including all accrued and unpaid interest thereon (including, without limitation and to the extent permitted by applicable law, any compound interest), are paid, the Issuer may elect to begin a new Optional Deferral Period; provided, however, that, without limitation of the foregoing, the Issuer may not begin a new Optional Deferral Period unless the Issuer has paid all accrued and unpaid interest on the Notes (including, without limitation and to the extent permitted by applicable law, any compound interest) from any previous Optional Deferral Periods. During any Optional Deferral Period, the Issuer will not do any of the following:

 

(i)  declare or pay any dividends or distributions on any Capital Stock of the Issuer or the Company;

 

(ii)  redeem, purchase, acquire or make a liquidation payment with respect to any Capital Stock of the Issuer or the Company;

 

(iii)  pay any principal, interest or premium on, or repay, repurchase or redeem, any indebtedness of the Issuer or the Guarantors that ranks equally with or junior to the Notes or the Guarantees in right of payment; or

 

(iv)  make any payments with respect to any guarantees by the Issuer or the Guarantors of any indebtedness if such guarantees rank equally with or junior to the Notes or the Guarantees in right of payment;

 

provided; however, during an Optional Deferral Period, the Issuer and the Guarantors may (a) declare and pay dividends or distributions payable solely in shares of the Issuer’s or the Company’s common stock (together, for the avoidance of doubt, with cash in lieu of any fractional share) or options, warrants or rights to subscribe for or purchase shares of the Issuer’s or the Company’s common stock, (b) declare and pay any dividend in connection with the implementation of a plan (a “Rights Plan”) providing for the issuance by the Issuer or the Company to all holders of the Issuer’s or the Company’s common stock of rights entitling them to subscribe for or purchase common stock or any class or series of the Issuer’s or the Company’s preferred stock, which rights (1) are deemed to be transferred with such common stock, (2) are not exercisable until the occurrence of a specified event or events and (3) are also issued in respect of future issuances of the Issuer’s or the Company’s common stock, (c) issue any of shares of the Issuer’s or the Company’s Capital Stock under any Rights Plan or redeem or repurchase any rights distributed pursuant to a Rights Plan, (d) reclassify the Issuer’s or the Company’s Capital Stock or exchange or convert one class or series of the Issuer’s or the Company’s Capital Stock for another class or series of the Issuer’s or the Company’s Capital Stock, (e) purchase fractional interests in shares of the Issuer’s or the Company’s Capital Stock pursuant to the conversion or exchange provisions of such Capital Stock or the security being converted or exchanged, (f) purchase, acquire or withhold shares of the Issuer’s or the Company’s common stock related to the issuance of the Issuer’s or the Company’s common stock or rights under any dividend reinvestment plan or related to any of the Issuer’s or the Company’s benefit plans for the Issuer’s or the Company’s directors, officers, employees, consultants or advisors, including any employment contract, and (g) for the avoidance of doubt, convert convertible Capital Stock of the Issuer or the Company into other Capital Stock of the Issuer or the Company in accordance with the terms of such convertible Capital Stock (together, for the avoidance of doubt, with cash in lieu of any fractional share).

 

The Issuer will give the Holders of the Notes and the Trustee notice of its election of, or any shortening or extension of, an Optional Deferral Period at least 10 Business Days prior to the earlier of (1) the next succeeding Interest Payment Date or (2) the date upon which the Issuer is required to give notice to any applicable self-regulatory organization or to Holders of the Notes of the next succeeding Interest Payment Date or the record date therefor. The record date for the payment of deferred interest and, to the extent permitted by applicable law, any compound interest payable on the Interest Payment Date immediately following the last day of an Optional Deferral Period will be the Regular Record Date with respect to such Interest Payment Date.

 

“Capital Stock” means (i) in the case of a corporation or a company, corporate stock or shares; (ii) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; (iii) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and (iv) any other interest or participation that confers on a person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing person.

 

The indebtedness represented by the Notes and the Guarantees and the payment of the principal of and any premium or interest on each and all of the Notes of such series is subordinate in right of payment to the prior payment in full of all Senior Indebtedness (as defined below), to the extent set forth in the

 

Indenture. Senior Indebtedness shall continue to be Senior Indebtedness with respect to the Notes irrespective of any amendment, modification or waiver of any term of the Notes or extension or renewal of the Notes (other than any such amendment, modification or waiver that makes the Notes subordinated or equal in right of payment to the Notes).

 

“Senior Indebtedness” means, with respect to the Notes and the Guarantees, (i) indebtedness of the Issuer or the Guarantors, whether outstanding at the date of the indenture or incurred, created or assumed after such date, (a) in respect of money borrowed by the Issuer or the Guarantors (including any financial derivative, hedging or futures contract or similar instrument, to the extent any such item is primarily a financing transaction) and (b) evidenced by debentures, bonds, notes, credit or loan agreements or other similar instruments or agreements issued or entered into by the Issuer or the Guarantors; (ii) all finance lease obligations of the Issuer or the Guarantors; (iii) all obligations of the Issuer or the Guarantors issued or assumed as the deferred purchase price of property, all conditional sale obligations of the Issuer or the Guarantors and all obligations of the Issuer or the Guarantors under any title retention agreement (but excluding, for the avoidance of doubt, trade accounts payable arising in the ordinary course of business and long-term purchase obligations); (iv) all obligations of the Issuer or the Guarantors for the reimbursement of any letter of credit, banker’s acceptance, security purchase facility or similar credit transaction; and (v) all obligations of the type referred to in clauses (i) through (iv) above of other persons for the payment of which the Issuer or the Guarantors are responsible or liable as obligor, guarantor or otherwise, except for any obligations, instruments or agreements of the type referred to in any of clauses (i) through (v) above that, by the terms of the instruments or agreements creating or evidencing the same or pursuant to which the same is outstanding, are subordinated or equal in right of payment to each of the Notes and the Guarantees.

 

The Issuer may redeem some or all of the Notes, at its option, in whole or in part (i) on any day in the period commencing on the date falling 90 days prior to the First Reset Date and ending on and including the First Reset Date and (ii) after the First Reset Date, on any interest payment date, at a redemption price in cash equal to 100% of the principal amount of the Notes being redeemed, plus, (subject to the provisions set forth in the Indenture regarding the payment of installments of interest on the Notes that are due and payable on any Interest Payment Date falling on or prior to a redemption date), accrued and unpaid interest on the Notes to be redeemed to but excluding the redemption date.

 

The Issuer may at its option redeem the Notes, in whole but not in part, at any time following the occurrence and during the continuance of a Tax Event (as defined below) at a redemption price in cash equal to 100% of the principal amount of the Notes, plus, (subject to the provisions set forth in the Indenture regarding the payment of installments of interest on the Notes that are due and payable on any Interest Payment Date falling on or prior to a redemption date), accrued and unpaid interest on the Notes to but excluding the redemption date.

 

“Tax Event” means that the Issuer has received an opinion of counsel experienced in such matters to the effect that, as a result of:

 

(i)

any amendment to, clarification of, or change, including any announced prospective change, in the laws or treaties of the United States or any of its political subdivisions or taxing authorities, or any regulations under those laws or treaties;

 

(ii)

an administrative action, which means any judicial decision or any official administrative pronouncement, ruling, regulatory procedure, notice or announcement, including any notice or announcement of intent to issue or adopt any administrative pronouncement, ruling, regulatory procedure or regulation;

 

(iii)

any amendment to, clarification of, or change in the official position or the interpretation of any administrative action or judicial decision or any interpretation or pronouncement that provides for a position with respect to an administrative action or judicial decision that differs from the previously generally accepted position, in each case by any legislative body, court,

 

governmental authority or regulatory body, regardless of the time or manner in which that amendment, clarification or change is introduced or made known; or

 

(iv)

a threatened challenge asserted in writing in connection with a tax audit of the Issuer or any of its affiliates or subsidiaries, or a publicly-known threatened challenge asserted in writing against any other taxpayer that has raised capital through the issuance of securities that are substantially similar to the Notes,

 

which amendment, clarification or change is effective or the administrative action is taken or judicial decision, interpretation or pronouncement is issued or threatened challenge is asserted or becomes publicly known after June 10, 2024, there is more than an insubstantial risk that interest payable by the Issuer on the Notes is not deductible, or within 90 days would not be deductible, in whole or in part, by the Issuer (or a member of the U.S. consolidated group of which the Issuer is a member) for United States federal income tax purposes.

 

The Issuer may at its option redeem the Notes, in whole but not in part, at any time following the occurrence and during the continuance of a Rating Agency Event (as defined below) at a redemption price in cash equal to 102% of the principal amount of the Notes, plus, (subject to the provisions set forth in the Indenture regarding the payment of installments of interest on the Notes that are due and payable on any Interest Payment Date falling on or prior to a redemption date), accrued and unpaid interest on the Notes to but excluding the redemption date.

 

“Rating Agency Event” means, as of any date, a change, clarification or amendment in the methodology published by any nationally recognized statistical rating organization within the meaning of Section 3(a)(62) of the Securities Exchange Act of 1934, as amended (or any successor provision thereto), that then publishes a rating for the Issuer (together with any successor thereto, a “rating agency”) in assigning equity credit to securities such as the Notes, (a) as such methodology was in effect on June 10, 2024, in the case of any rating agency that published a rating for the Issuer as of June 10, 2024, or (b) as such methodology was in effect on the date such rating agency first published a rating for the Issuer, in the case of any rating agency that first publishes a rating for the Issuer after June 10, 2024 (in the case of either clause (a) or (b), the “current methodology”), that results in (i) any shortening of the length of time for which a particular level of equity credit pertaining to the Notes by such rating agency would have been in effect had the current methodology not been changed or (ii) a lower equity credit (including up to a lesser amount) being assigned by such rating agency to the Notes as of the date of such change, clarification or amendment than the equity credit that would have been assigned to the Notes by such rating agency had the current methodology not been changed.

 

Notice of Redemption. Notice of any redemption will be mailed or electronically delivered (or otherwise transmitted in accordance with the Depositary’s procedures) at least 10 days but not more than 60 days before the redemption date to each Holder of Notes to be redeemed in accordance with Section 1.06 of the Indenture. In the case of a partial redemption, selection of the Notes for redemption will be made by lot or by such other customary method prescribed by the Depositary. No Notes of a principal amount of $2,000 or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to such Note will state the portion of the principal amount of the Note to be redeemed. A new Note in a principal amount equal to the unredeemed portion of the original Note will be issued in the name of the Holder of the original Note upon surrender for cancellation of the original Note. For so long as the Notes are held by the Depositary (or another depositary), the redemption of the Notes shall be done in accordance with the policies and procedures of the Depositary, which may be on a pro rata pass-through distribution of principal basis. Unless the Issuer defaults in payment of the redemption price, on and after the redemption date interest will cease to accrue on the Notes or portions thereof called for redemption.

 

If, at the time a notice of redemption is given, (i) the Issuer has not effected satisfaction and discharge of the Notes pursuant to Article Four of the Indenture and (ii) such notice of redemption is not being given in connection with or in order to effect satisfaction and discharge of the Notes, then, if the notice of redemption so provides and at the Issuer’s option, the redemption may be subject to the condition that the

 

Trustee shall have received, on or before the applicable redemption date, monies in an amount sufficient to pay the redemption price and accrued and unpaid interest on the Notes called for redemption to but excluding the redemption date. If monies in such amount are not received by the Trustee on or before such redemption date, such notice of redemption shall be automatically canceled and of no force or effect, such proposed redemption shall be automatically canceled and the Issuer shall not be required to redeem the Notes called for redemption on such redemption date. In the event that a redemption is canceled, the Issuer will, not later than the business day immediately following the proposed redemption date, deliver, or cause to be delivered, notice of such cancellation to the Holders of the Notes called for redemption (which notice will also indicate that any Notes or portions thereof surrendered for redemption shall be returned to the applicable Holders), and the Issuer will direct the Trustee to, and the Trustee will, promptly return any Notes or portions thereof that have been surrendered for redemption to the applicable Holders

 

If an Event of Default shall occur and be continuing, the principal of all the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.

 

The Securities do not have the benefit of sinking fund obligations.

 

Sections 14.02 and 14.03 of the Original Indenture shall be applicable to the Securities of this series, upon compliance by the Original Indenture with certain conditions set forth therein, which provisions apply to this Security.

 

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Holders under the Indenture at any time by the Issuer and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the Securities at the time Outstanding affected by such amendment or modification. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities at the time Outstanding, on behalf of the Holders of all the Securities, to waive compliance by the Issuer with certain provisions of the Indenture and also contains provisions permitting the Holders of a majority in aggregate principal amount of the Outstanding Securities with respect to which a Default shall have occurred and shall be continuing, on behalf of the Holders of all Outstanding Securities, to waive certain past defaults under the Indenture and their consequences. Any such consent or waiver by or on behalf of the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Security.

 

Initially, the Trustee will act as Paying Agent and Security Registrar. The Issuer may appoint and change any Paying Agent or Security Registrar without notice to the Holders. The Issuer or any of the Issuer’s subsidiaries may act as Paying Agent or Security Registrar.

 

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any, on) and interest on this Security at the times, place, and rate, and in the coin or currency, herein prescribed.

 

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable on the Security Register of the Issuer, upon surrender of this Security for registration of transfer at the office or agency of the Issuer maintained for such purpose in the Borough of Manhattan, The City of New York duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

 

The Securities of this series are issuable only in registered form without coupons in denominations of $2,000 and any integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Securities of this series are exchangeable for a like aggregate

 

principal amount of Securities of this series of a different authorized denomination, as requested by the Holder surrendering the same.

 

No service charge shall be made for any registration of transfer or exchange of Securities of this series, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

 

Prior to the time of due presentment of this Security for registration of transfer, the Issuer, the Trustee, and any agent of the Issuer or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security is overdue, and neither the Issuer, the Trustee, the Securities Administrator nor any agent shall be affected by notice to the contrary.

 

If at any time, (i) the Depositary for the Securities of this series notifies the Issuer that it is unwilling or unable or no longer qualified to continue as Depositary for the Securities of this series or if at any time the Depositary for the Securities of this series shall no longer be a clearing agency registered or in good standing under the Securities Exchange Act of 1934, as amended, and a successor Depositary is not appointed by the Issuer within 90 days after the Issuer receives such notice or becomes aware of such condition, as the case may be, (ii) the Issuer determines that the Securities of this series shall no longer be represented by a global Security or Securities or (iii) any Event of Default shall have occurred and be continuing with respect to the Securities of this series, then in such event the Issuer will execute and Trustee will authenticate and deliver Securities of this series in definitive registered form, in authorized denominations, and in an aggregate principal amount equal to the principal amount of this Security in exchange for this Security. Such Securities of this series in definitive registered form shall be registered in such names and issued in such authorized denominations as the Depository, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities of this series to the Persons in whose names such Securities of this series are so registered.

 

In addition to the rights provided to Holders of Securities under the Indenture, Holders of the Securities of this series shall have the rights set forth in the Registration Rights Agreement, dated as of June 4, 2021, among the Issuer, the Guarantors and the initial purchasers named therein (the “Registration Rights Agreement”), including the right to receive the Exchange Notes and the additional interest as provided therein.

 

The Indenture and this Security shall be governed by and construed in accordance with the laws of the State of New York.

 

All references herein to “dollars” or “$” means a dollar or other equivalent unit in such coin or currency of the United States of America as at the time should be legal tender for the payment of public and private debts, and all terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

GUARANTEE
OF
EMERA INCORPORATED
and
EMERA US HOLDINGS INC.

 

The obligations of each Guarantor to the Holders of the Securities of this series and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article Fifteen of the Original Indenture, and reference is hereby made to such Article and Indenture for the precise terms of the Guarantee.

 

This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication of such Security of this series, upon which this notation of the Guarantee is endorsed, shall have been manually executed by the Trustee under such Indenture.

 

All terms used in this Guarantee which are defined in such Indenture shall have the meanings assigned to them in such Indenture.

 

This Guarantee shall be governed by and construed in accordance with the laws of the State of New York.

 

Executed and dated the date on the face hereof.

 

	EMERA INCORPORATED
	By:
		Name:
		Title:

 

	By:
		Name:
		Title:

 

 

	EMERA US HOLDINGS INC.
	By:
		Name:
		Title:

 

	By:
		Name:
		Title:

 

Exhibit 4.2

 

 

 

 

EUSHI FINANCE, INC.

as Issuer

EMERA INCORPORATED

EMERA US HOLDINGS INC.

as Guarantors

AND

EQUINITI TRUST COMPANY, LLC

as Trustee

Indenture

 

 

Dated as of June 18, 2024

 

 

 

Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of June 18, 2024

 

Trust Indenture Act Section	Indenture Section
§ 310(a)(1)	6.07
§ 310(b)	6.04, 6.07, 6.08(d)(1)
§ 311	1.01(2), 6.04
§ 312(b)	7.01
§ 313	1.01 (“Outstanding”)
§ 313(c)	6.01
§ 315(a)-(d)	6.02
§ 315(e)	6.08
§ 316(c)	1.04(d)

 

TABLE OF CONTENTS*

 

Page

 

ARTICLE One DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION	1
SECTION 1.01   Definitions.	1
SECTION 1.02   Compliance Certificates and Opinions.	14
SECTION 1.03   Form of Documents Delivered to Trustee.	15
SECTION 1.04   Acts of Holders.	16
SECTION 1.05   Notices, etc. to Trustee, Issuer and Guarantors.	17
SECTION 1.06   Notice to Holders; Waiver.	17
SECTION 1.07   Effect of Headings and Table of Contents.	18
SECTION 1.08   Successors and Assigns.	18
SECTION 1.09   Separability Clause.	18
SECTION 1.10   Benefits of Indenture.	18
SECTION 1.11   Governing Law.	18
SECTION 1.12   Legal Holidays.	19
SECTION 1.13   Agent for Service; Submission to Jurisdiction; Waiver of Immunities.	19
SECTION 1.14   Conversion of Currency.	20
SECTION 1.15   Currency Equivalent.	21
SECTION 1.16   No Recourse Against Others.	21
SECTION 1.17   Multiple Originals.	21
SECTION 1.18   Conflict with Trust Indenture Act.	21
SECTION 1.19   Force Majeure.	22
SECTION 1.20   No Joint Venture.	22
SECTION 1.21   Rules of Construction.	22
SECTION 1.22   No Security Interest Created.	22
ARTICLE Two SECURITY FORMS	23
SECTION 2.01   Forms Generally.	23
SECTION 2.02   Form of Trustee’s Certificate of Authentication.	24
SECTION 2.03   Securities Issuable in Global Form.	24
SECTION 2.04   Guarantee by Guarantors; Form of Guarantee.	25
ARTICLE Three THE SECURITIES	25
SECTION 3.01   Amount Unlimited; Issuable in Series.	25
SECTION 3.02   Denominations.	29
SECTION 3.03   Execution, Authentication, Delivery and Dating.	29
SECTION 3.04   Reserved.	31
SECTION 3.05   Registration, Registration of Transfer and Exchange.	31
SECTION 3.06   Mutilated, Destroyed, Lost and Stolen Securities.	34
SECTION 3.07   Payment of Principal and Interest; Interest Rights Preserved.	35
SECTION 3.08   Reserved.	36
SECTION 3.09   Persons Deemed Owners.	36

SECTION 3.10   Cancellation.	37
SECTION 3.11   Computation of Interest.	37
SECTION 3.12   Currency and Manner of Payments in Respect of Securities.	37
SECTION 3.13   Appointment and Resignation of Successor Exchange Rate Agent.	41
SECTION 3.14   Certain Transfers and Exchanges.	41
ARTICLE Four SATISFACTION AND DISCHARGE	46
SECTION 4.01   Satisfaction and Discharge of Indenture.	46
SECTION 4.02   Application of Trust Money.	48
ARTICLE Five REMEDIES	48
SECTION 5.01   Events of Default.	48
SECTION 5.02   Acceleration of Maturity; Rescission and Annulment.	50
SECTION 5.03   Collection of Indebtedness and Suits for Enforcement by Trustee.	51
SECTION 5.04   Trustee May File Proofs of Claim.	52
SECTION 5.05   Trustee May Enforce Claims Without Possession of Securities.	53
SECTION 5.06   Application of Money Collected.	53
SECTION 5.07   Limitation on Suits.	53
SECTION 5.08   Unconditional Right of Holders to Receive Principal, Premium and Interest.	54
SECTION 5.09   Restoration of Rights and Remedies.	55
SECTION 5.10   Rights and Remedies Cumulative.	55
SECTION 5.11   Delay or Omission Not Waiver.	55
SECTION 5.12   Control by Holders.	55
SECTION 5.13   Waiver of Past Defaults.	56
SECTION 5.14   Waiver of Stay or Extension Laws.	56
SECTION 5.15   Undertaking for Costs.	56
ARTICLE Six THE TRUSTEE	57
SECTION 6.01   Certain Duties and Responsibilities.	57
SECTION 6.02   Notice of Defaults.	58
SECTION 6.03   Certain Rights of Trustee.	58
SECTION 6.04   Trustee Not Responsible for Recitals or Issuance of Securities.	60
SECTION 6.05   May Hold Securities.	60
SECTION 6.06   Money Held in Trust.	60
SECTION 6.07   Compensation and Reimbursement.	60
SECTION 6.08   Corporate Trustee Required; Eligibility; Conflicting Interests.	61
SECTION 6.09   Resignation and Removal; Appointment of Successor.	61
SECTION 6.10   Acceptance of Appointment by Successor.	63
SECTION 6.11   Merger, Conversion, Consolidation or Succession to Business.	64
SECTION 6.12   Appointment of Authenticating Agent.	64

ARTICLE Seven HOLDERS’ LISTS AND REPORTS BY TRUSTEE, ISSUER AND GUARANTORS	66
SECTION 7.01   Disclosure of Names and Addresses of Holders.	66
SECTION 7.02   Reports by Trustee.	66
SECTION 7.03   Reports by the Company.	66
SECTION 7.04   The Company to Furnish Trustee Names and Addresses of Holders.	67
ARTICLE Eight CONSOLIDATION, AMALGAMATION, MERGER, CONVEYANCE, TRANSFER OR LEASE	68
SECTION 8.01   Issuer and Guarantors May Amalgamate or Consolidate, etc., Only on Certain Terms.	68
SECTION 8.02   Successor Person Substituted.	69
ARTICLE Nine SUPPLEMENTAL INDENTURES	69
SECTION 9.01   Supplemental Indentures Without Consent of Holders.	69
SECTION 9.02   Supplemental Indentures with Consent of Holders.	71
SECTION 9.03   Execution of Supplemental Indentures; Effect of Supplemental Indentures.	72
SECTION 9.04   Conformity with Trust Indenture Act.	72
SECTION 9.05   Reference in Securities to Supplemental Indentures.	72
SECTION 9.06   Notice of Supplemental Indentures.	72
SECTION 9.07   Subordination Unimpaired.	73
ARTICLE Ten COVENANTS	73
SECTION 10.01   Payment of Principal, Premium, if any, and Interest.	73
SECTION 10.02   Maintenance of Office or Agency.	73
SECTION 10.03   Money for Securities Payments to Be Held in Trust.	74
SECTION 10.04   Statement as to Compliance.	75
SECTION 10.05   Additional Amounts.	75
SECTION 10.06   Reserved.	79
SECTION 10.07   Reserved.	79
SECTION 10.08   Company Existence.	79
SECTION 10.09   Reserved.	79
SECTION 10.10   Waiver of Certain Covenants.	79
ARTICLE Eleven REDEMPTION OF SECURITIES	80
SECTION 11.01   Applicability of Article.	80
SECTION 11.02   Election to Redeem; Notice to Trustee.	80
SECTION 11.03   Selection by Trustee of Securities to Be Redeemed.	80
SECTION 11.04   Notice of Redemption.	81
SECTION 11.05   Deposit of Redemption Price.	82
SECTION 11.06   Securities Payable on Redemption Date.	82
SECTION 11.07   Securities Redeemed in Part.	83

ARTICLE Twelve SUBORDINATION OF SECURITIES	83
SECTION 12.01   Subordination Terms.	83
SECTION 12.02   Notice to Trustee of Facts Prohibiting Payments.	83
SECTION 12.03   Application by Trustee of Moneys Deposited With It.	84
SECTION 12.04   Subrogation.	84
SECTION 12.05   Right of Trustees to Hold Senior Indebtedness.	84
SECTION 12.06   Not to Prevent Events of Default.	84
SECTION 12.07   Trustee’s Rights to Compensation, Reimbursement of Expenses and Indemnification.	84
SECTION 12.08   Article Applicable to Paying Agents.	84
SECTION 12.09   Trustee Not Fiduciary for Holders of Senior Indebtedness.	85
ARTICLE Thirteen RESERVED	85
ARTICLE Fourteen DEFEASANCE AND COVENANT DEFEASANCE	85
SECTION 14.01   Option to Effect Defeasance or Covenant Defeasance.	85
SECTION 14.02   Defeasance and Discharge.	85
SECTION 14.03   Covenant Defeasance.	86
SECTION 14.04   Conditions to Defeasance or Covenant Defeasance.	86
SECTION 14.05   Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.	88
SECTION 14.06   Reinstatement.	89
ARTICLE Fifteen GUARANTEE OF GUARANTEED SECURITIES	89
SECTION 15.01   Unconditional Guarantees.	89
SECTION 15.02   Execution and Delivery of Notation of Guarantees.	92
ARTICLE Sixteen MISCELLANEOUS PROVISIONS	93
SECTION 16.01   Certain Provisions Concerning the Payment of Interest.	93
SECTION 16.02   Execution in Counterparts.	93

 

TESTIMONIUM	101
SIGNATURES	101
RESERVED	EXHIBIT A
FORMS OF CERTIFICATION	EXHIBIT B

 

INDENTURE, dated as of June 18, 2024, by and among EUSHI Finance, Inc., a corporation duly organized and existing under the laws of the State of Delaware (herein called the “Issuer”), having its principal office at 251 Little Falls Drive, Wilmington, Delaware, 19808, EMERA INCORPORATED, a company duly organized and existing under the laws of the Province of Nova Scotia (herein called the “Company”), EMERA US HOLDINGS INC., a corporation duly organized and existing under the laws of the State of Delaware (“EUSHI” and, together with the Company, the “Guarantors” and each a “Guarantor” and EQUINITI TRUST COMPANY, LLC, a New York limited liability trust company, as trustee (herein called the “Trustee”).

 

RECITALS

 

The Issuer has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured, subordinated debentures, notes or other evidences of indebtedness (herein called the “Securities”), which may be convertible into or exchangeable for any securities of any Person (including the Issuer and the Guarantors), to be issued in one or more series as in this Indenture provided.

 

Each Guarantor has duly authorized the execution and delivery of this Indenture, and the making of the Guarantees pursuant to this Indenture (the “Guarantees”).

 

All things necessary to make this Indenture a valid agreement of the Issuer and the Guarantors, in accordance with its terms, have been done.

 

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

 

For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows:

 

ARTICLE One
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

 

SECTION 1.01 Definitions.

 

For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

 

(1)   the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;

 

(2)   all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein, and the terms “cash transaction” and “self-liquidating paper”, as used in TIA Section 311, shall have the meanings assigned to them in the rules of the Commission (as defined herein) adopted under the Trust Indenture Act;

 

(3)   all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles used in the Company’s annual financial statements contained in the Company’s annual report delivered to its shareholders in respect of the fiscal year immediately prior to the date of such computation; and

 

(4)   the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.

 

Certain terms, used principally in Article ‎Three, are defined in that Article.

 

“Act”, when used with respect to any Holder, has the meaning specified in Section ‎1.04.

 

“Additional Amounts” has the meaning specified in Section ‎10.05.

 

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

“Agent Member” means any member of, or participant in, the Depositary.

 

“Applicable Procedures” means, with respect to any transfer or transaction involving a Global Security or beneficial interest therein, the rules and procedures of the Depositary for such Security, Euroclear and Clearstream, in each case to the extent applicable to such transaction and as in effect from time to time.

 

“Authenticating Agent” means any Person appointed by the Trustee to act on behalf of the Trustee pursuant to Section ‎6.12 to authenticate Securities.

 

“Authorized Newspaper” means a newspaper, in the English language or in an official language of the country of publication, customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in each place in connection with which the term is used or in the financial community of each such place.

 

“Bankruptcy Law” has the meaning specified in Section ‎5.01.

 

“Bankruptcy Order” has the meaning specified in Section ‎5.01.

 

“Board of Directors” means with respect to the Issuer or the Guarantors, as the case may be:

 

(1)   with respect to a corporation, the Board of Directors of the corporation or any committee thereof duly authorized to act on behalf of such Board of Directors;

 

(2)   with respect to a limited liability company, the Board of Directors or other governing body or any committee thereof duly authorized to act on behalf of such Board of Directors, and in the absence of same, the manager or board of managers or the managing member or members or any controlling committee thereof; and

 

(3)   with respect to any other Person, the board or committee of such Person serving a similar function.

 

“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Issuer or the Guarantors, as the case may be, to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.

 

“Business Day”, when used with respect to any Place of Payment or any other particular location referred to in this Indenture or in the Securities, means, unless otherwise specified with respect to any Securities pursuant to Section ‎3.01, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment or other location are authorized or obligated by law or executive order to close.

 

“calculation period” has the meaning specified in Section ‎3.11.

 

“Canadian Taxes” has the meaning specified in Section ‎10.05.

 

“Capital Lease Obligations” means the obligation of a Person, as lessee, to pay rent or other amounts to the lessor under a lease of real or personal property which is required to be classified and accounted for as a capital lease on a consolidated balance sheet of such Person in accordance with Generally Accepted Accounting Principles;

 

“Clearstream” means Clearstream Banking, société anonyme, or its successor.

 

“Commission” means the U.S. Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

 

“Common Shares” means shares of any class or classes of the share capital of a corporation or securities representing ownership interests in any Person other than a corporation, the rights of the Holders of which to participate in the distribution of assets upon the voluntary or involuntary liquidation, dissolution or winding-up of such corporation or other Person are not restricted to a fixed sum or to a fixed sum plus accrued dividends or other periodic distributions.

 

“Company” means the Person named as the “Company” in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person. For purposes of clarity, it is hereby understood and agreed that the Company is, where appropriate in the context,

 

sometimes referred to herein as a “Guarantor” or, collectively with Emera US Holdings Inc., the “Guarantors”.

 

“Component Currency” has the meaning specified in Section ‎3.12.

 

“Conversion Date” has the meaning specified in Section ‎3.12(d).

 

“Conversion Event” means the cessation of use of (i) a Foreign Currency (other than the Euro or other currency unit) both by the government of the country which issued such Currency and by a central bank or other public institution of or within the international banking community for the settlement of transactions, (ii) the Euro or (iii) any currency unit (or composite currency) other than the Euro for the purposes for which it was established.

 

“Corporate Trust Office” shall mean, with respect to the Trustee, 48 Wall Street, 22^nd Floor, New York, NY 10005, Attention: Legal Department; or any other address that the Trustee may designate with respect to itself from time to time by notice to the Company and the Holders.

 

“corporation” includes corporations, associations, companies and business trusts.

 

“covenant defeasance” has the meaning specified in Section ‎14.03.

 

“Currency” means any currency or currencies, composite currency or currency unit or currency units, including, without limitation, the Euro, issued by the government of one or more countries or by any recognized confederation or association of such governments.

 

“Custodian” has the meaning specified in Section ‎5.01.

 

“Default” means any event which is, or after notice or passage of time or both would be, an Event of Default.

 

“Defaulted Interest” has the meaning specified in Section ‎3.07.

 

“defeasance” has the meaning specified in Section ‎14.02.

 

“Depositary” means, with respect to the Securities of any series, The Depository Trust Company, or any successor thereto, or any other Person designated pursuant to Section ‎3.01 with respect to the Securities of such series.

 

“Dollar” or “$” means a dollar or other equivalent unit in such coin or currency of the United States of America as at the time shall be legal tender for the payment of public and private debts.

 

“Dollar Equivalent of the Currency Unit” has the meaning specified in Section ‎3.12(g).

 

“Dollar Equivalent of the Foreign Currency” has the meaning specified in Section ‎3.12(f).

 

“Election Date” has the meaning specified in Section ‎3.12(h).

 

“Euro” means the single currency of the participating member states from time to time of the European Union described in legislation of the European Council for the operation of a single unified European currency (whether known as the Euro or otherwise).

 

“Euroclear” means Euroclear Bank, S.A./N.V., or its successor, as operator of the Euroclear System.

 

“EUSHI” means Emera US Holdings Inc. For purposes of clarity, it is hereby understood and agreed that EUSHI is, where appropriate in the context, sometimes referred to herein as a “Guarantor” or, collectively with the Company, the “Guarantors.”

 

“Event of Default” has the meaning specified in Section ‎5.01.

 

“Exchange Rate Agent” means, with respect to Securities of or within any series, unless otherwise specified with respect to any Securities pursuant to Section ‎3.01, a New York Clearing House bank, designated pursuant to Section ‎3.13.

 

“Exchange Rate Officer’s Certificate” means a tested telex or a certificate setting forth (i) the applicable Market Exchange Rate and (ii) the Dollar or Foreign Currency amounts of principal (and premium, if any) and interest, if any (on an aggregate basis and on the basis of a Security having the lowest denomination principal amount determined in accordance with Section ‎3.02 in the relevant Currency), payable with respect to a Security of any series on the basis of such Market Exchange Rate, sent (in the case of a telex) or signed (in the case of a certificate) by an officer or director of the Issuer.

 

“Exchange Securities” means the Securities issued in exchange for, and in an aggregate principal amount equal to, Restricted Global Securities and Regulation S Global Securities pursuant to the terms of a registration rights agreement and containing terms substantially identical to the Restricted Global Securities and Regulation S Global Securities exchanged therefor (except that such Exchange Securities will be registered under the Securities Act and will not bear the Private Placement Legend).

 

“Federal Bankruptcy Code” means the Bankruptcy Act of Title 11 of the United States Code, as amended from time to time.

 

“Financial Instrument Obligations” means obligations arising under:

 

(i)   interest rate swap agreements, forward rate agreements, floor, cap or collar agreements, futures or options, insurance or other similar agreements or arrangements, or any combination thereof, entered into by a Person of which the subject matter is dependent or based upon interest rates in effect from time to time or fluctuations in interest rates occurring from time to time (excluding obligations which are considered to be Indebtedness of such Person by virtue of any provision of the definition of Indebtedness other than clause (ii) thereof);

 

(ii)   currency swap agreements, cross currency agreements, forward agreements, floor, cap or collar agreements, futures or options, insurance or other similar agreements or arrangements, or any combination thereof, entered into by a Person of

 

which the subject matter is currency exchange rates or pursuant to which the price, value or amount payable thereunder is dependent or based upon currency exchange rates in effect from time to time or fluctuations in currency exchange rates occurring from time to time; and

 

(iii)   commodity swap agreements, floor, cap or collar agreements, commodity futures or options or other similar agreements or arrangements, or any combination thereof, entered into by a Person of which the subject matter is one or more commodities or pursuant to which the price, value or amount payable thereunder is dependent or based upon the price of one or more commodities in effect from time to time or fluctuations in the price of one or more commodities occurring from time to time.

 

“First Currency” has the meaning specified in Section ‎1.15.

 

“Foreign Currency” means any Currency other than Currency of the United States of America.

 

“Generally Accepted Accounting Principles” means, as at any date of determination, generally accepted accounting principles in effect in the United States at such date.

 

“Global Security” has the meaning specified in Section ‎2.01.

 

“Governmental Authority” means any nation or government, any state, province, territory or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

 

“Government Obligations” means, unless otherwise specified with respect to any series of Securities pursuant to Section ‎3.01, securities which are (a) direct obligations of the government which issued the Currency in which the Securities of a particular series are payable or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the government which issued the Currency in which the Securities of such series are payable, the payment of which is unconditionally guaranteed by such government, which, in either case, are full faith and credit obligations of such government payable in such Currency and are not callable or redeemable at the option of the issuer thereof and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on or principal of any such Government Obligation held by such custodian for the account of a holder of a depositary receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest or principal of the Government Obligation evidenced by such depositary receipt.

 

“Guarantee” or “Guarantees” means the guarantee of the Guarantors as endorsed on a Security authenticated and delivered pursuant to this Indenture and shall include the provisions set forth in Section ‎15.01 of this Indenture and all other obligations and covenants of the Guarantors contained in this Indenture and any Securities.

 

“Guarantor” means each Person named as “Guarantor” in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Guarantor” shall mean such successor Person.

 

“Holder” means the Person in whose name a Security is registered in the Security Register.

 

“Indebtedness” means, with respect to any Person, without duplication,

 

(i)   all obligations of such Person for borrowed money, including obligations with respect to bankers’ acceptances and contingent reimbursement obligations relating to letters of credit and other financial instruments;

 

(ii)   all Financial Instrument Obligations;

 

(iii)   all obligations issued or assumed by such Person in connection with the acquisition of property in respect of the deferred purchase price of property;

 

(iv)   all Capital Lease Obligations and Purchase Money Obligations of such Person, and

 

(v)   all obligations of the type referred to in clauses (i) through (iv) of this definition of another Person, the payment of which such Person has guaranteed or for which such Person is responsible or liable,

 

provided that obligations of such Person or of another Person of the type referred to in clauses (i) through (iii) of this definition shall exclude trade accounts payable, dividends and other distributions payable to shareholders, future income taxes, obligations in respect of Preferred Shares, accrued liabilities arising in the ordinary course of business which are not overdue or which are being contested by such Person or such other Person in good faith, and non-monetary obligations in respect of performance guarantees.

 

“Indenture” means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, and shall include the terms of particular series of Securities established as contemplated by Section ‎3.01; provided, however, that, if at any time more than one Person is acting as Trustee under this instrument, “Indenture” shall mean, with respect to any one or more series of Securities for which such Person is Trustee, this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof

 

and shall include the terms of particular series of Securities for which such Person is Trustee established as contemplated by Section ‎3.01, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such Person is not Trustee, regardless of when such terms or provisions were adopted, and exclusive of any provisions or terms adopted by means of one or more indentures supplemental hereto executed and delivered after such Person had become such Trustee but to which such Person, as such Trustee, was not a party.

 

“Indexed Security” means a Security the terms of which provide that the principal amount thereof payable at Stated Maturity may be more or less than the principal face amount thereof at original issuance.

 

“interest”, when used with respect to an Original Issue Discount Security, shall be deemed to mean interest payable after Maturity at the rate prescribed in such Original Issue Discount Security.

 

“Interest Payment Date”, when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.

 

“Issuer” means the Person named as “Issuer” in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Issuer” shall refer to such successor Person.

 

“Issuer Request” or “Issuer Order” means a written request or order signed in the name of the Issuer by any two officers or directors of the Issuer, and delivered to the Trustee.

 

“Judgment Currency” has the meaning specified in Section ‎1.14.

 

“Lien” means any mortgage, charge, lien, pledge or security interest of any kind created, incurred, issued, assumed or guaranteed in order to secure payment of Indebtedness.

 

“Market Exchange Rate” means, unless otherwise specified with respect to any Securities pursuant to Section ‎3.01, (i) for any conversion involving a currency unit on the one hand and Dollars or any Foreign Currency on the other, the exchange rate between the relevant currency unit and Dollars or such Foreign Currency calculated by the method specified pursuant to Section ‎3.01 for the Securities of the relevant series, (ii) for any conversion of Dollars into any Foreign Currency, the noon (New York City time) buying rate for such Foreign Currency for cable transfers quoted in New York City as certified for customs purposes by the Federal Reserve Bank of New York and (iii) for any conversion of one Foreign Currency into Dollars or another Foreign Currency, the spot rate at noon local time in the relevant market at which, in accordance with normal banking procedures, the Dollars or Foreign Currency into which conversion is being made could be purchased with the Foreign Currency from which conversion is being made from major banks located in either New York City, London or any other principal market for Dollars or such purchased Foreign Currency, in each case determined by the Exchange Rate Agent. Unless otherwise specified with respect to any Securities pursuant to Section ‎3.01, in the event of the unavailability of any of the exchange rates provided for in the foregoing clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York as of the most recent available date, or quotations from one or more major banks in New York City, London or another principal market for the Currency in question, or such other quotations as the Exchange Rate Agent shall deem appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is more than one market for dealing in any Currency by reason of foreign exchange regulations or otherwise, the market to be used in respect of such Currency shall be that upon which a non-resident issuer of securities designated in such Currency would purchase such Currency in order to make payments in respect of such Securities.

 

“Maturity”, when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, notice of redemption, notice of option to elect repayment or otherwise.

 

“Non-Recourse Debt” means any Indebtedness incurred to finance or refinance the creation, development, design, engineering, procurement, construction, servicing, management, operation, ownership and/or acquisition of any project or asset and any increases in or extensions, renewals or refunding of any such Indebtedness in respect of which the person or persons to whom any such Indebtedness is or may be owed by the relevant borrower has, or have no recourse whatsoever to any of the Issuer, the Company, or EUSHI for the repayment of that Indebtedness other than:

 

(i)   recourse directly or indirectly to the Issuer, the Company or EUSHI, as applicable, for amounts limited to the cash flow or net cash flow (other than historic cash flow or historic net cash flow) from, or ownership interests or other investments in, such project or asset; and/or

 

(ii)   recourse directly or indirectly to the Issuer, the Company or EUSHI, as applicable, for the purpose only of enabling amounts to be claimed in respect of such Indebtedness in an enforcement of any encumbrance given by the Issuer, the Company or EUSHI, as applicable, over such project or asset or the income, cash flow or other proceeds deriving from the project (or given by any shareholder or the like, or other investor in, the borrower or in the owner of such project or asset over its shares or the like in the capital of, or other investment in, the borrower or in the owner of such project or asset) to secure such Indebtedness, provided that the extent of such recourse to the Issuer, the Company or EUSHI, as applicable, is limited solely to the amount of any recoveries made on any such enforcement; and/or

 

(iii)   recourse directly or indirectly to the Issuer, the Company or EUSHI, as applicable, under any form of assurance, indemnity, undertaking or support, which recourse is limited to a claim for damages (other than liquidated damages and damages required to be calculated in a specified way) for breach of an obligation (not being a payment obligation or an obligation to procure payment by another or an indemnity in respect of a payment obligation, or any obligation to comply or to procure compliance by another with any financial ratios or other tests of financial condition) by the person against which such recourse is available.

 

“Non-U.S. Person” means a Person who is not a U.S. Person as defined in Regulation S under the Securities Act (as hereinafter defined).

 

“Officers’ Certificate” means a certificate signed by, in the case of the Issuer or a Guarantor, any two authorized officers or directors and delivered to the Trustee on behalf of the Issuer or the Guarantor, as applicable, without personal liability.

 

“Opinion of Counsel” means a written opinion of counsel, who may be counsel for the Issuer or the Guarantors, including an employee of the Issuer or the Guarantors, and who shall be acceptable to the Trustee.

 

“Original Issue Discount Security” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section ‎5.02.

 

“Other Currency” has the meaning specified in Section ‎1.15.

 

“Outstanding”, when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:

 

(i)   Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;

 

(ii)   Securities, or portions thereof, for whose payment or redemption or repayment at the option of the Holder, money in the necessary amount has been theretofore deposited with the Trustee or any other Paying Agent (other than the Issuer or a Guarantor) in trust or set aside and segregated in trust by the Issuer or a Guarantor (if the Issuer or such Guarantor shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;

 

(iii)   Securities, except to the extent provided in Sections ‎14.02 and ‎14.03, with respect to which the Issuer has effected defeasance and/or covenant defeasance as provided in Article ‎Fourteen; and

 

(iv)   Securities which have been paid pursuant to Section ‎3.06 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Issuer;

 

provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder or are present at a meeting of Holders for quorum purposes, and for the purpose of making the calculations required by TIA Section 313, (i) the principal amount of an Original Issue Discount Security that may be counted in making such determination or calculation and that shall be deemed to be Outstanding for such purpose shall be equal to the amount of principal thereof that would be (or shall have been declared to be) due and payable, at the time of such determination, upon a declaration of acceleration of the maturity thereof pursuant to Section ‎5.02, (ii) the principal amount of any Security denominated in a Foreign Currency that may be counted in making such determination or calculation and that shall be deemed Outstanding for such purpose shall be equal to the Dollar equivalent, determined as of the date such Security is originally issued by the Issuer as set forth in an Exchange Rate Officer’s Certificate delivered to the Trustee, of the principal amount (or, in the case of an Original Issue

 

Discount Security, the Dollar equivalent as of such date of original issuance of the amount determined as provided in clause (i) above) of such Security, (iii) the principal amount of any Indexed Security that may be counted in making such determination or calculation and that shall be deemed outstanding for such purpose shall be equal to the principal face amount of such Indexed Security at original issuance, unless otherwise provided with respect to such Security pursuant to Section ‎3.01, and (iv) Securities owned by the Issuer, a Guarantor or any other obligor upon the Securities or any Affiliate of the Issuer, a Guarantor or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in making such calculation or in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee certifies to the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Issuer, a Guarantor or any other obligor upon the Securities or any Affiliate of the Issuer, a Guarantor or such other obligor.

 

“Paying Agent” means the Trustee and any other Person (including the Issuer acting as Paying Agent) authorized by the Issuer to pay the principal of (or premium, if any) or interest, if any, on any Securities on behalf of the Issuer.

 

“Person” means an individual, a corporation, a partnership, a trustee or an unincorporated organization; and pronouns have a similarly extended meaning.

 

“Place of Payment” means, when used with respect to the Securities of or within any series, the place or places where the principal of (and premium, if any) and interest, if any, on such Securities are payable as specified as contemplated by Sections ‎3.01 and ‎10.02.

 

“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and any Security authenticated and delivered under Section ‎3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security, as the case may be.

 

“Preferred Shares” means

 

(i)   securities which on the date of issue thereof by a Person

 

(ii)   have a term to maturity of more than 30 years,

 

(iii)   rank subordinate to the unsecured and unsubordinated Indebtedness of such Person outstanding on such date,

 

(iv)   entitle such Person to satisfy the obligation to pay the principal thereof from the proceeds of the issuance of Common Shares;

 

(v)   entitle such Person to defer the payment of interest thereon for more than 4 years without thereby causing an event of default to occur,

 

(vi)   entitle such Person to satisfy the obligation to make payments of interest thereon from the proceeds of the issuance of Common Shares, and

 

(vii)   shares of any class of the share capital of a corporation or securities representing ownership interests in any Person other than a corporation which, in either case, are not Common Shares.

 

“Private Placement Legend” has the meaning specified in Section ‎3.14(f).

 

“Purchase Money Obligation” means Indebtedness of the Issuer or the Guarantors incurred or assumed to finance the purchase price, in whole or in part, of any property or incurred to finance the cost, in whole or in part, of construction or installation of or improvements to any property; provided that such Indebtedness is incurred or assumed substantially concurrently with the purchase of such property or the completion of such construction, installation or improvements, as the case may be, and includes any extension, renewal or refunding of any such Indebtedness so long as the principal amount thereof outstanding on the date of such extension, renewal or refunding is not increased.

 

“rate(s) of exchange” has the meaning specified in Section ‎1.14.

 

“Redemption Date”, when used with respect to any Security to be redeemed, in whole or in part, means the date fixed for such redemption by or pursuant to this Indenture.

 

“Redemption Price”, when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.

 

“Registered Security” means any Security registered in the Security Register.

 

“Regular Record Date” for the interest payable on any Interest Payment Date on the Registered Securities of or within any series means the date specified for that purpose as contemplated by Section ‎3.01.

 

“Regulation S Global Security” means a Regulation S Permanent Global Security or a Regulation S Temporary Global Security.

 

“Regulation S Permanent Global Security” has the meaning specified in Section ‎2.01.

 

“Regulation S Temporary Global Security” has the meaning specified in Section ‎2.01.

 

“Required Currency” has the meaning specified in Section ‎1.14.

 

“Resale Restriction Termination Date” means (x) in the case of any Security sold pursuant to Rule 144A under the Securities Act, the date which is one year (or such other date when resales of securities by non-affiliates are first permitted under Rule 144(d) under the Securities Act without condition) after the later of the date of the original issue of the Securities or the date of any subsequent reopening of the Security and the last date on which the Issuer or any of its affiliates were the owner of such Security (or any predecessor thereto) or, in the case of

 

any Security sold pursuant to Regulation S under the Securities Act, 40 days or (y) in any case, such later date, if any, as may be required by applicable law.

 

“Responsible Officer” when used with respect to the Trustee, means any officer assigned to the Corporate Trust Office of the Trustee having direct responsibility for the administration of this Indenture, and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.

 

“Restricted Global Security” has the meaning specified in Section ‎2.01.

 

“Restricted Period” means the 40 day restricted period as defined in Regulation S under the Securities Act.

 

“securities” means any stock, shares, units, installment receipts, voting trust certificates, bonds, debentures, notes, other evidences of indebtedness, or other documents or instruments commonly known as securities or any certificates of interest, shares or participations in temporary or interim certificates for, receipts for, guarantees of, or warrants, options or rights to subscribe for, purchase or acquire any of the foregoing.

 

“Securities Act” means the United States Securities Act of 1933, as amended.

 

“Security Register” and “Security Registrar” have the respective meanings specified in Section ‎3.05.

 

“Senior Indebtedness” means, with respect to the Notes and the Guarantees, (i) indebtedness of the Issuer or the Guarantors, whether outstanding at the date of the indenture or incurred, created or assumed after such date, (a) in respect of money borrowed by the Issuer or the Guarantors (including any financial derivative, hedging or futures contract or similar instrument, to the extent any such item is primarily a financing transaction) and (b) evidenced by debentures, bonds, notes, credit or loan agreements or other similar instruments or agreements issued or entered into by the Issuer or the Guarantors; (ii) all finance lease obligations of the Issuer or the Guarantors; (iii) all obligations of the Issuer or the Guarantors issued or assumed as the deferred purchase price of property, all conditional sale obligations of the Issuer or the Guarantors and all obligations of the Issuer or the Guarantors under any title retention agreement (but excluding, for the avoidance of doubt, trade accounts payable arising in the ordinary course of business and long-term purchase obligations); (iv) all obligations of the Issuer or the Guarantors for the reimbursement of any letter of credit, banker’s acceptance, security purchase facility or similar credit transaction; and (v) all obligations of the type referred to in clauses (i) through (iv) above of other persons for the payment of which the Issuer or the Guarantors are responsible or liable as obligor, guarantor or otherwise, except for any obligations, instruments or agreements of the type referred to in any of clauses (i) through (v) above that, by the terms of the instruments or agreements creating or evidencing the same or pursuant to which the same is outstanding, are subordinated or equal in right of payment to each of the Notes and the Guarantees.

 

“Specified Amount” has the meaning specified in Section ‎3.12.

 

“Special Record Date” for the payment of any Defaulted Interest on the Registered Securities of or within any series means a date fixed by the Trustee pursuant to Section ‎3.07.

 

“Stated Maturity”, when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.

 

“Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939, as amended and as in force at the date as of which this Indenture was executed except as provided in Section ‎9.05.

 

“Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder.

 

“United States” means, unless otherwise specified with respect to any Securities pursuant to Section ‎3.01, the United States of America (including the states and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.

 

“U.S. GAAP” means generally accepted accounting principles that are in effect from time to time in the United States of America.

 

“U.S. Person” means a “U.S. person” as defined in Rule 902 of Regulation S under the Securities Act.

 

“Valuation Date” has the meaning specified in Section ‎3.12(c).

 

“Yield to Maturity” means the yield to maturity, computed at the time of issuance of a Security (or, if applicable, at the most recent redetermination of interest on such Security) and as set forth in such Security in accordance with generally accepted United States bond yield computation principles.

 

SECTION 1.02 Compliance Certificates and Opinions.

 

Upon any application or request by the Issuer or a Guarantor to the Trustee to take any action under any provision of this Indenture, the Issuer or such Guarantor shall furnish to the Trustee, an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture (including any covenant compliance with which constitutes a condition precedent) relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.

 

Every certificate or opinion with respect to compliance with a covenant or condition provided for in this Indenture (other than pursuant to Section ‎10.04) shall include:

 

(1)   a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;

 

(2)   a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

 

(3)   a statement that, in the opinion of each such individual, he has made such reasonable examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and

 

(4)   a statement as to whether, in the opinion of each such individual, such covenant or condition has been complied with.

 

SECTION 1.03 Form of Documents Delivered to Trustee.

 

In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

 

Any certificate or opinion of an officer of the Issuer or a Guarantor may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Issuer or a Guarantor, as the case may be, stating that the information with respect to such factual matters is in the possession of the Issuer or a Guarantor unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.

 

Any certificate or opinion of an officer of the Issuer or a Guarantor or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of, or representations by, an accountant or firm of accountants in the employ of the Issuer or a Guarantor, unless such officer or counsel, as the case may be, knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the accounting matters upon which such certificate or opinion may be based are erroneous. Any certificate or opinion of any independent firm of public accountants filed with the Trustee shall contain a statement that such firm is independent.

 

Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.

 

SECTION 1.04 Acts of Holders.

 

(a)   Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of the Outstanding Securities of all series or one or more series, as the case may be, may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee, and, where it is hereby expressly required, to the Issuer and the Guarantors. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments or so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee, the Issuer and a Guarantor, if made in the manner provided in this Section.

 

(b)   The fact and date of the execution by any Person of any such instrument or writing may be proved in any reasonable manner which the Trustee deems sufficient.

 

(c)   The principal amount and serial numbers of Registered Securities held by any Person, and the date of holding the same, shall be proved by the Security Register.

 

(d)   If the Issuer or a Guarantor shall solicit from the Holders of Registered Securities any request, demand, authorization, direction, notice, consent, waiver or other Act, the Issuer or the Guarantor, as the case may be, may, at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but such Issuer or Guarantor, as the case may be, shall have no obligation to do so. Notwithstanding TIA Section 316(c), such record date shall be the record date specified in or pursuant to such Board Resolution, which shall be a date not earlier than the date 30 days prior to the first solicitation of Holders generally in connection therewith and not later than the date such solicitation is completed. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than eleven months after the record date.

 

(e)   Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, the Issuer or the applicable Guarantor in reliance thereon, whether or not notation of such action is made upon such Security.

 

SECTION 1.05 Notices, etc. to Trustee, Issuer and Guarantors.

 

Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other documents provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,

 

(1)   the Trustee by any Holder or by the Issuer or a Guarantor shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing or sent by facsimile to the Trustee at its Corporate Trust Office;

 

(2)   the Issuer or a Guarantor by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, or sent by overnight courier to the Issuer or a Guarantor, as the case may be, addressed to it at 5151 Terminal Road, Second Floor, Halifax, Nova Scotia B3J 1A1, Attention: Corporate Secretary, or at any other address previously furnished in writing to the Trustee by the Issuer or a Guarantor, as the case may be.

 

The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods so long as an electronic copy of the executed instructions or directions on applicable letterhead are included with the electronic communication (for example, in an e-mail attachment); provided, however, that, if the Trustee so requests, (a) the party providing such written instructions, subsequent to such transmission of written instructions, shall provide the originally executed instructions or directions to the Trustee in a timely manner, and (b) such originally executed instructions or directions shall be signed by an authorized representative of the party providing such instructions or directions.

 

SECTION 1.06 Notice to Holders; Waiver.

 

Where this Indenture provides for notice of any event (1) to Holders of Registered Securities by the Issuer, the Guarantors, or the Trustee, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each such Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice and (2) such notice shall be sufficiently given to Holders if published at least twice in an Authorized Newspaper or Newspapers in the City of New York, the first publication to be not later than two business days prior to the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders of Registered Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders of Registered Securities. Any notice mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been received by such Holder, whether or not such Holder actually receives such notice.

 

In case, by reason of the suspension of or irregularities in regular mail service or by reason of any other cause, it shall be impractical to mail notice of any event to Holders of

 

Registered Securities when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be directed by the Issuer shall be deemed to be sufficient giving of such notice for every purpose hereunder.

 

In the event of suspension of publication of any Authorized Newspapers or by reason of any other cause it shall be impracticable to give notice by publication, such notification as shall be given with the approval of the Trustee shall constitute sufficient notice for every purpose hereunder.

 

Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication.

 

Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

 

SECTION 1.07 Effect of Headings and Table of Contents.

 

The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

 

SECTION 1.08 Successors and Assigns.

 

All covenants and agreements in this Indenture by each of the Issuer and the Guarantors shall bind its successors and assigns and inure to the benefit of its successors and assigns, whether so expressed or not.

 

SECTION 1.09 Separability Clause.

 

In case any provision in this Indenture or in any Security shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

SECTION 1.10 Benefits of Indenture.

 

Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto, any Authenticating Agent, any Paying Agent, any Security Registrar and their successors hereunder (except, in each case, the Trustee) and the Holders of Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.

 

SECTION 1.11 Governing Law.

 

This Indenture, the Guarantees and the Securities shall be governed by and construed in accordance with the law of the State of New York. This Indenture is subject to the provisions of

 

the Trust Indenture Act that are required to be part of this Indenture and shall, to the extent applicable, be governed by such provisions.

 

SECTION 1.12 Legal Holidays.

 

In any case where any Interest Payment Date, Redemption Date or Stated Maturity or Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of any Security other than a provision in the Securities of any series which specifically states that such provision shall apply in lieu of this Section), payment of principal (or premium, if any) or interest, if any, need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date or at the Stated Maturity or Maturity; provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date, Stated Maturity or Maturity, as the case may be.

 

SECTION 1.13 Agent for Service; Submission to Jurisdiction; Waiver of Immunities.

 

By the execution and delivery of this Indenture, the Company (i) irrevocably designates and appoints, and acknowledges that it has irrevocably designated and appointed the Issuer as its authorized agent upon which process may be served in any suit, action or proceeding arising out of or relating to any Securities, the Guarantee or this Indenture that may be instituted in any United States federal or New York state court in The City of New York or brought under federal or state securities laws or brought by the Trustee (whether in its individual capacity or in its capacity as Trustee hereunder), or, subject to Section ‎5.07, by any Holder of Securities or Guarantees in any United States federal or New York state court in The City of New York, (ii) submits to the non-exclusive jurisdiction of any such court in any such suit, action or proceeding, and (iii) agrees that service of process upon the Issuer and written notice of said service to the Company (mailed or delivered to its General Counsel in the manner specified in Section ‎1.05 hereof), shall be deemed in every respect effective service of process upon the Company in any such suit, action or proceeding. The Company further agrees to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of the Issuer in full force and effect so long as any of the Securities shall be Outstanding or any amounts shall be payable in respect of any Securities.

 

Each of the Issuer and the Guarantors irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any such action, suit or proceeding in any such court or any appellate court with respect thereto and irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of any such action, suit or proceeding in any such court.

 

To the extent that the Issuer or any Guarantor has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, each of them hereby irrevocably waives such immunity in respect

 

of its obligations under this Indenture, the Guarantees and the Securities, to the extent permitted by law.

 

SECTION 1.14 Conversion of Currency.

 

The Issuer and the Guarantors covenant and agree that the following provisions shall apply to conversion of Currency in the case of the Securities, the Guarantees and this Indenture to the fullest extent permitted by applicable law:

 

(a)   (i) If for the purposes of obtaining judgment in, or enforcing the judgment of, any court in any country, it becomes necessary to convert into a currency (the “Judgment Currency”) an amount due or contingently due under the Securities of any series or this Indenture in any other currency (the “Required Currency”), then the conversion shall be made at the rate of exchange prevailing on the Business Day before the day on which the judgment is given or the order of enforcement is made, as the case may be (unless a court shall otherwise determine).

 

(ii)   If there is a change in the rate of exchange prevailing between the Business Day before the day on which the judgment is given or an order of enforcement is made, as the case may be (or such other date as a court shall determine), and the date of receipt of the amount due, the Issuer or the Guarantor, as the case may be, shall pay such additional (or, as the case may be, such lesser) amount, if any, as may be necessary so that the amount paid in the Judgment Currency when converted at the rate of exchange prevailing on the date of receipt will produce the amount in the Required Currency originally due.

 

(b)   In the event of the winding-up of the Issuer or a Guarantor at any time while any amount or damages owing under the Securities, the Guarantees and this Indenture, or any judgment or order rendered in respect thereof, shall remain unpaid or outstanding, the Issuer or a Guarantor, as the case may be, shall indemnify and hold the Holders and the Trustee harmless against any deficiency arising or resulting from any variation in rates of exchange between (1) the date as of which the equivalent of the amount in the Required Currency (other than under this subsection ‎(b)) is calculated for the purposes of such winding-up and (2) the final date for the filing of proofs of claim in such winding-up. For the purpose of this subsection ‎(b) the final date for the filing of proofs of claim in the winding-up of the Issuer or a Guarantor, as the case may be, shall be the date fixed by the liquidator or otherwise in accordance with the relevant provisions of applicable law as being the latest practicable date as at which liabilities of the Issuer or a Guarantor, as the case may be, may be ascertained for such winding-up prior to payment by the liquidator or otherwise in respect thereto.

 

(c)   The obligations contained in subsections ‎(a)‎(ii) and ‎(b) of this Section shall constitute separate and independent obligations of the Issuer or the applicable Guarantor, as the case may be, from its other obligations under the Securities, the Guarantees and this Indenture, shall give rise to separate and independent causes of action against the Issuer and the applicable Guarantor, shall apply irrespective of any waiver or extension granted by any Holder or Trustee from time to time and shall continue in full force and effect notwithstanding any judgment or order or the filing of any proof of claim in the winding-up of such Issuer or Guarantor for a liquidated sum in respect of amounts due hereunder (other than under subsection ‎(b) above) or

 

under any such judgment or order. Any such deficiency as aforesaid shall be deemed to constitute a loss suffered by the Holders or the Trustee, as the case may be, and no proof or evidence of any actual loss shall be required by the Issuer, the applicable Guarantor or the applicable liquidator. In the case of subsection ‎(b) above, the amount of such deficiency shall not be deemed to be reduced by any variation in rates of exchange occurring between the said final date and the date of any liquidating distribution.

 

(d)   The term “rate(s) of exchange” shall mean (i) in the case that either the Required Currency or the Judgment Currency is the Canadian dollar, the Bank of Canada noon rate for purchases on the relevant date of the Required Currency with the Judgment Currency, as reported by Telerate on screen 3194 (or such other means of reporting the Bank of Canada noon rate as may be agreed upon by each of the parties to this Indenture) or (ii) in all other cases, the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the relevant date and in each case includes any premiums and costs of exchange payable.

 

SECTION 1.15 Currency Equivalent.

 

Except as otherwise provided in this Indenture, for purposes of the construction of the terms of this Indenture or of the Securities, in the event that any amount is stated herein in the Currency of one nation (the “First Currency”), as of any date such amount shall also be deemed to represent the amount in the Currency of any other relevant nation (the “Other Currency”) which is required to purchase such amount in the First Currency (i) at the Bank of Canada noon rate as reported by Reuters Telerate successor page 3194 as reported by Bloomberg L.P. (or such other means of reporting the Bank of Canada noon rate as may be agreed upon by each of the parties to this Indenture) on the date of determination or (ii) if the Bank of Canada noon rate is not available, in accordance with normal banking procedures in The City of New York on the date of determination.

 

SECTION 1.16 No Recourse Against Others.

 

A director, officer, employee or shareholder, as such, of the Issuer or a Guarantor shall not have any liability for any obligations of such Issuer or Guarantor under the Securities, the Guarantees or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Security, each Holder shall waive and release all such liability. Such waiver and release shall be part of the consideration for the issue of the Securities.

 

SECTION 1.17 Multiple Originals.

 

The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Indenture.

 

SECTION 1.18 Conflict with Trust Indenture Act.

 

If and to the extent that any provision hereof limits, qualifies or conflicts with another provision that is required or deemed to be included in this Indenture by any of the provisions of the Trust Indenture Act, such required or deemed provision shall control.

 

SECTION 1.19 Force Majeure.

 

In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or third party computer (software and hardware) services; it being understood that the Trustee, as applicable, shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

 

SECTION 1.20 No Joint Venture.

 

Nothing contained in this Indenture (i) shall constitute the parties hereto as members of any partnership, joint venture, association, syndicate, unincorporated business or other separate entity, (ii) shall be construed to impose any liability as such on any of them or (iii) shall be deemed to confer on any of them any express, implied or apparent authority to incur any obligation or liability on behalf of the other.

 

SECTION 1.21 Rules of Construction.

 

Unless the context otherwise requires, (a) words in the singular include the plural, and words in the plural include the singular and (b) “including” means, where not already so indicated, “including without limitation.” Unless otherwise stated in this Indenture, in the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding.” “Herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not any particular Article, Section or other subdivision. Unless otherwise specified, references in this Indenture to any Article, Section or Exhibit are references to such Article or Section of, or Exhibit to, this Indenture, and references in any Article, Section, Exhibit or definition to any subsection or clause are references to such subsection or clause of such Article, Section, Exhibit or definition. All references in this Indenture to an agreement, instrument or other document shall be construed as a reference to that agreement, instrument or document as the same may be amended, modified, varied, supplemented or novated from time to time.

 

SECTION 1.22 No Security Interest Created.

 

Unless expressly provided for in a supplement to this Indenture entered into pursuant to the terms of this Indenture, nothing in this Indenture or in the Securities shall be construed to constitute a security interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect in any jurisdiction where property of the Issuer or the Guarantors is or may be located.

 

ARTICLE Two
SECURITY FORMS

 

SECTION 2.01 Forms Generally.

 

The Registered Securities of each series shall be in substantially the form as shall be established by or pursuant to a Board Resolution of the Issuer or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as the Guarantors or the Issuer may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or as may, consistently herewith, be determined by the Issuer. If the form of Securities of any series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Issuer and delivered to the Trustee at or prior to the delivery of the Issuer Order contemplated by Section ‎3.03 for the authentication and delivery of such Securities. Any portion of the text of any Security may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Security.

 

The Trustee’s certificate of authentication on all Securities shall be in substantially the form set forth in this Article ‎Two.

 

The definitive Securities and Guarantee shall be printed, lithographed or engraved on steel-engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities. A Security (including the Guarantee endorsed thereon) may be in any form established by or pursuant to authority granted by one or more Board Resolutions and set forth in an Officers’ Certificate or supplemental indenture pursuant to Section ‎3.01.

 

Securities offered and sold in reliance on Rule 144A under the Securities Act shall be issued initially in the form of one or more permanent Registered Securities in global form (the “Restricted Global Securities”) registered in the name of the Depositary or its nominee and deposited with the Trustee, as custodian for the Depositary. The aggregate principal amount of the Restricted Global Securities may from time to time be increased or decreased by adjustments made on the records of the Depositary or its nominee, or of the Trustee, as custodian for the Depositary or its nominee, as hereinafter provided.

 

Securities initially offered and sold in reliance on Regulation S under the Securities Act shall be issued initially in the form of one or more temporary Global Securities (the “Regulation S Temporary Global Securities”), which shall be deposited on behalf of the purchasers of the Securities represented thereby with the Trustee, and registered in the name of the Depositary or the nominee of the Depositary for the accounts of designated agents holding on behalf of Euroclear or Clearstream, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided. The Restricted Period will be terminated upon the receipt by the Trustee of a written certificate from the Depositary, together with copies of certificates from Euroclear and Clearstream certifying that they have received certification of non-United States beneficial

 

ownership of 100% of the aggregate principal amount of each Regulation S Temporary Global Security (except to the extent of any beneficial owners thereof who acquired an interest therein during the Restricted Period pursuant to another exemption from registration under the Securities Act and who will take delivery of a beneficial ownership interest in a Restricted Global Security).

 

Following the termination of the Restricted Period, beneficial interests in each Regulation S Temporary Global Security will be exchanged for beneficial interests in permanent Global Securities (the “Regulation S Permanent Global Securities” and, together with the Regulation S Temporary Global Securities, the “Regulation S Global Securities”; and the Regulation S Global Securities together with the Restricted Global Securities, the “Global Securities”) of the same series, pursuant to the Applicable Procedures. Simultaneously with the authentication of each Regulation S Permanent Global Security, the Trustee will cancel the Regulation S Temporary Global Security of the same series. The aggregate principal amount of each Regulation S Temporary Global Security and Regulation S Permanent Global Security may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary or its nominee, as the case may be, in connection with transfers of interest as hereinafter provided.

 

SECTION 2.02 Form of Trustee’s Certificate of Authentication.

 

Subject to Section ‎6.12, the Trustee’s certificate of authentication shall be in substantially the following form:

 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

Dated: ____________________

 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

	EQUINITI TRUST COMPANY, LLC, as Trustee
	By
		Authorized Officer

 

SECTION 2.03 Securities Issuable in Global Form.

 

If Securities of or within a series are issuable in global form, as specified as contemplated by Section ‎3.01, then, notwithstanding clause ‎(10) of Section ‎3.01, any such Security shall represent such of the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Securities of such series from time to time endorsed thereon and that the aggregate amount of Outstanding Securities of such series represented thereby may from time to time be increased or decreased to reflect exchanges. Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee in

 

such manner and upon instructions given by such Person or Persons as shall be specified therein or in the Issuer Order to be delivered to the Trustee pursuant to Section ‎3.03. Subject to the provisions of Section ‎3.03, the Trustee shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person or Persons specified therein or in the applicable Issuer Order. If an Issuer Order pursuant to Section ‎3.03 has been, or simultaneously is, delivered, any instructions by the Issuer with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need not comply with Section ‎1.02 and need not be accompanied by an Opinion of Counsel.

 

The provisions of the last sentence of Section ‎3.03 shall apply to any Security represented by a Security in global form if such Security was never issued and sold by the Issuer and the Issuer delivers to the Trustee, as applicable, the Security in global form together with written instructions (which need not comply with Section ‎1.02 and need not be accompanied by an Opinion of Counsel) with regard to the reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of Section ‎3.03.

 

Notwithstanding the provisions of Section ‎3.07, unless otherwise specified as contemplated by Section ‎3.01, payment of principal of (and premium, if any) and interest, if any, on any Security in permanent global form shall be made to the Person or Persons specified therein.

 

Notwithstanding the provisions of Section ‎3.09 and except as provided in the preceding paragraph, the Issuer, the Guarantors, the Trustee, and any agent of the Issuer, the Guarantors, or the Trustee shall treat as the Holder of such principal amount of Outstanding Securities represented by a permanent global Security the Holder of such permanent global Security.

 

SECTION 2.04 Guarantee by Guarantors; Form of Guarantee.

 

Each Guarantor by its execution of this Indenture hereby agrees with each Holder of a Security of each series authenticated and delivered by the Trustee on behalf of each such Holder, to be unconditionally and irrevocably bound by the terms and provisions of the Guarantee set forth in Article ‎Fifteen and authorizes the Trustee to confirm such Guarantee to the Holder of each such Security by its delivery of each such Security, with such Guarantee endorsed thereon, authenticated and delivered by the Trustee.

 

ARTICLE Three
THE SECURITIES

 

SECTION 3.01 Amount Unlimited; Issuable in Series.

 

The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.

 

The Securities may be issued in one or more series. There shall be established in one or more Board Resolutions of the Issuer or pursuant to authority granted by one or more Board Resolutions of the Issuer and, subject to Section ‎3.03, set forth in, or determined in the manner

 

provided in, an Officers’ Certificate of the Issuer, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series, any or all of the following, as applicable:

 

(1)   Reserved;

 

(2)   the title of the Securities of the series (which shall distinguish the Securities of the series from all other series of Securities);

 

(3)   any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Sections ‎3.05, ‎SECTION 3.06‎3.06, ‎9.06 or ‎10.07 and, in the event that no limit upon the aggregate principal amount of the Securities of that series is specified, the Issuer shall have the right, subject to any terms, conditions or other provisions specified pursuant to this Section ‎3.01 with respect to the Securities of such series, to re-open such series for the issuance of additional Securities of such series from time to time;

 

(4)   the date or dates, or the method by which such date or dates will be determined or extended, on which the principal of the Securities of the series is payable;

 

(5)   the rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such rate or rates shall be determined, the date or dates from which such interest shall accrue, or the method by which such date or dates shall be determined, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date, if any, for the interest payable on any Registered Security on any Interest Payment Date, or the method by which such date or dates shall be determined, and the basis upon which interest shall be calculated if other than on the basis of a 360-day year of twelve 30-day months;

 

(6)   the place or places, if any, other than the Corporate Trust Office, where the principal of (and premium, if any) and interest, if any, on Securities of the series shall be payable, where any Registered Securities of the series may be surrendered for registration of transfer, where Securities of the series may be surrendered for exchange, where Securities of the series that are convertible or exchangeable may be surrendered for conversion or exchange, as applicable, and, if different than the location specified in Section ‎1.05, the place or places where notices or demands to or upon the Issuer in respect of the Securities of the series and this Indenture may be served; and the extent to which, or the manner in which, any interest payment or Additional Amounts due on a global Security of that series on an Interest Payment Date will be paid (if different than for other Securities of such series);

 

(7)   whether the Securities of any such series may be redeemed, and if so, the period or periods within which, the price or prices at which, the Currency (if other than Dollars) in which, and other terms and conditions upon which Securities of the series

 

may be redeemed, in whole or in part, at the option of the Issuer, if the Issuer is to have that option;

 

(8)   the obligation, if any, of the Issuer to redeem, repay or purchase Securities of the series pursuant to any sinking fund or analogous provision or at the option of a Holder thereof, and the period or periods within which, the price or prices at which, the Currency (if other than Dollars) in which, and other terms and conditions upon which Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;

 

(9)   Reserved.

 

(10)   if other than denominations of $2,000 and integral multiple of $1,000 in excess thereof, the denomination or denominations in which any Registered Securities of the series shall be issuable;

 

(11)   if other than the Trustee, the identity of each Security Registrar and/or Paying Agent;

 

(12)   if other than the principal amount thereof, the portion of the principal amount of Securities of the series that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section ‎5.02 or the method by which such portion shall be determined;

 

(13)   if other than Dollars, the Currency in which payment of the principal of (or premium, if any) or interest, if any, on the Securities of the series shall be payable or in which the Securities of the series shall be denominated and the particular provisions applicable thereto in accordance with, in addition to or in lieu of any of the provisions of Section ‎3.12;

 

(14)   whether the amount of payments of principal of (or premium, if any) or interest, if any, on the Securities of the series may be determined with reference to an index, formula or other method (which index, formula or method may be based, without limitation, on one or more Currencies, commodities, equity indices or other indices), and the manner in which such amounts shall be determined;

 

(15)   whether the principal of (or premium, if any) or interest, if any, on the Securities of the series are to be payable, at the election of the Issuer or a Holder thereof, in a Currency other than that in which such Securities are denominated or stated to be payable, the period or periods within which (including the Election Date), and the terms and conditions upon which, such election may be made, and the time and manner of determining the exchange rate between the Currency in which such Securities are denominated or stated to be payable and the Currency in which such Securities are to be so payable, in each case in accordance with, in addition to or in lieu of any of the provisions of Section ‎3.12;

 

(16)   the designation of the initial Exchange Rate Agent, if any;

 

(17)   the applicability, if any, of Sections ‎14.02 and/or ‎14.03 to the Securities of the series and any provisions in modification of, in addition to or in lieu of any of the provisions of Article ‎Fourteen that shall be applicable to the Securities of the series;

 

(18)   provisions, if any, granting special rights to the Holders of Securities of the series upon the occurrence of such events as may be specified;

 

(19)   any deletions from, modifications of or additions to the Events of Default or covenants of the Guarantors or the Issuer with respect to Securities of the series, whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein;

 

(20)   whether beneficial owners of interests in any global Security may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section ‎3.05, and if Securities of the series are to be issuable in global form, the identity of any initial depositary therefor if other than The Depository Trust Company;

 

(21)   the Person to whom any interest on any Registered Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;

 

(22)   if Securities of the series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and/or terms of such certificates, documents or conditions;

 

(23)   if the Securities of the series are to be issued upon the exercise of warrants, the time, manner and place for such Securities to be authenticated and delivered;

 

(24)   any deletions from, modifications of or additions to Section ‎10.05 with respect to the Securities of such series, or a statement to the effect that Section ‎10.05 shall not be applicable with respect to the Securities of such series;

 

(25)   if the Securities of the series are to be convertible into or exchangeable for any securities of any Person, the terms and conditions upon which such Securities will be so convertible or exchangeable;

 

(26)   whether Securities of the series are to be issuable as Restricted Global Securities, Regulation S Global Securities or both, or issued without a Private Placement Legend because such Securities are initially issued pursuant to an effective registration statement under the Securities Act, or otherwise, and the obligation, if any, of the Issuer to issue Exchange Securities in exchange therefor pursuant to any registration rights agreement, and any other related terms;

 

(27)   the subordination terms of the Securities of the series; and

 

(28)   any other terms, conditions, rights and preferences (or limitations on such rights and preferences) relating to the series (which terms shall not be inconsistent with the requirements of the Trust Indenture Act but which need not be consistent with the provisions of this Indenture).

 

All Securities of any one series shall be substantially identical except as to denomination, and except as may otherwise be provided in or pursuant to such Board Resolution (subject to Section ‎3.03) and set forth in such Officers’ Certificate or in any such indenture supplemental hereto. Not all Securities of any one series need be issued at the same time, and, unless otherwise provided, a series may be reopened for issuances of additional Securities of such series.

 

If any of the terms of the series are established by action taken pursuant to one or more Board Resolutions, such Board Resolutions shall be delivered to the Trustee at or prior to the delivery of the Officers’ Certificate setting forth the terms of the series.

 

SECTION 3.02 Denominations.

 

The Securities of each series shall be issuable in such denominations as shall be specified as contemplated by Section ‎3.01. With respect to Securities of any series denominated in Dollars, in the absence of any such provisions, the Registered Securities of such series, other than Registered Securities issued in global form (which may be of any denomination), shall be issuable in denominations of $2,000 and integral multiples of $1,000 in excess thereof.

 

SECTION 3.03 Execution, Authentication, Delivery and Dating.

 

The Securities shall be executed on behalf of the Issuer by any two authorized officers or directors of the Issuer. The signature of any of these officers on the Securities may be the manual or facsimile signatures of the present or any future such authorized officer and may be imprinted or otherwise reproduced on the Securities.

 

Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Issuer shall bind the Issuer notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.

 

At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Exchange Securities to be issued in exchange for any series of Restricted Global Securities and Regulation S Global Securities, executed by the Issuer and endorsed by the Guarantors to the Trustee for authentication, together with an Issuer Order for the authentication and delivery of such Securities, and the Trustee in accordance with such Issuer Order shall authenticate and deliver such Securities.

 

At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Securities of any series, executed by the Issuer and endorsed by the Guarantors to the Trustee for authentication, together with an Issuer Order for the authentication and delivery of such Securities, and the Trustee in accordance with such Issuer Order shall

 

authenticate and deliver such Securities. If not all the Securities of any series are to be issued at one time and if the Board Resolution or supplemental indenture establishing such series shall so permit, such Issuer Order may set forth procedures acceptable to the Trustee for the issuance of such Securities and determining terms of particular Securities of such series such as interest rate, stated maturity, date of issuance and date from which interest shall accrue.

 

In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to TIA Sections 315(a) through 315(d)) shall be fully protected in relying upon, an Opinion or Opinions of Counsel of the Issuer and the Guarantors stating:

 

(a)   that the form or forms of such Securities and the Guarantee have been established in conformity with the provisions of this Indenture;

 

(b)   that the terms of such Securities and the Guarantee have been established in conformity with the provisions of this Indenture;

 

(c)   that such Securities and the Guarantee, when completed by appropriate insertions and executed and delivered by the Issuer and the Guarantors to the Trustee for authentication in accordance with this Indenture, authenticated and delivered by the Trustee in accordance with this Indenture and issued by the Issuer and the Guarantors in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute the legal, valid and binding obligations of the Issuer and the Guarantors, respectively, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting the enforcement of creditors’ rights, to general equitable principles and to such other qualifications as such counsel shall conclude do not materially affect the rights of Holders of such Securities;

 

(d)   that all laws and requirements in respect of the execution and delivery by the Issuer of such Securities and of the supplemental indentures, if any, and by the Guarantors of the Guarantee and of the supplemental indentures, if any, have been complied with and that authentication and delivery of such Securities and the execution and delivery of the supplemental indenture, if any, by the Trustee will not violate the terms of the Indenture;

 

(e)   that each of the Issuer and the Guarantors has the power to issue such Securities and Guarantee, respectively, and has duly taken all necessary action with respect to such issuance; and

 

(f)   that the issuance of such Securities and Guarantee will not contravene the articles of incorporation or by-laws of the Issuer or the Guarantors, or result in any violation of any of the terms or provisions of any law or regulation applicable to the Issuer or the Guarantors.

 

Notwithstanding the provisions of Section ‎3.01 and of the preceding two paragraphs, if not all the Securities of any series are to be issued at one time, it shall not be necessary to deliver the Officers’ Certificate otherwise required pursuant to Section ‎3.01 or the Issuer Order and Opinion of Counsel otherwise required pursuant to the preceding two paragraphs prior to or at the time of issuance of each Security, but such documents shall be delivered prior to or at the time of issuance of the first Security of such series.

 

The Trustee shall not be required to authenticate and deliver any such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.

 

Each Registered Security shall be dated the date of its authentication.

 

No Security or Guarantee endorsed thereon shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein duly executed by the Trustee by manual signature of an authorized officer, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and is entitled, together with the Guarantee endorsed thereon to the benefits of this Indenture. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Issuer, and the Issuer shall deliver such Security to the Trustee for cancellation as provided in Section ‎3.10 together with a written statement (which need not comply with Section ‎1.02 and need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Issuer, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.

 

SECTION 3.04 Reserved.

 

SECTION 3.05 Registration, Registration of Transfer and Exchange.

 

The Issuer shall cause to be kept at the Corporate Trust Office a register for each series of Securities issued by the Issuer (the registers maintained in the Corporate Trust Office and in any other office or agency of the Issuer in a Place of Payment being herein sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Issuer shall provide for the registration of Registered Securities and of transfers of Registered Securities. The Security Register shall be in written form or any other form capable of being converted into written form within a reasonable time. Upon three Business Days’ prior written request, the Security Register shall be open during normal business hours to inspection by the Trustee. The Trustee is hereby initially appointed as security registrar (the “Security Registrar”) for the purpose of registering Registered Securities and transfers of Registered Securities as herein provided. The Issuer shall have the right to remove and replace from time to time the Security Registrar for any series of Securities; provided, however, that no such removal or replacement shall be effective until a successor Security Registrar with respect to such series of Registered Securities shall have been appointed by the Issuer and shall have accepted such appointment by the Issuer. There shall be only one Security Register for each series of Securities.

 

Upon surrender for registration of transfer of any Registered Security of any series at the office or agency in a Place of Payment for that series, the Issuer shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee, one or more replacement Registered Securities of the same series, of any authorized denominations and of a like aggregate

 

principal amount and tenor and evidencing the same indebtedness and having endorsed thereon a Guarantee executed by the Guarantors.

 

At the option of the Holder, Registered Securities of any series may be exchanged for other replacement Registered Securities of the same series, of any authorized denomination and of a like aggregate principal amount and tenor and evidencing the same indebtedness, upon surrender of the Registered Securities to be exchanged at such office or agency. Whenever any Registered Securities are so surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and deliver, the Registered Securities, and having endorsed thereon a Guarantee executed by the Guarantors, which the Holder making the exchange is entitled to receive.

 

Notwithstanding the foregoing, except as otherwise specified as contemplated by Section ‎3.01, any permanent global Security shall be exchangeable only as provided in this paragraph and the two following paragraphs. If any beneficial owner of an interest in a permanent global Security is entitled to exchange such interest for Securities of such series and of like tenor and principal amount of another authorized form and denomination, as specified as contemplated by Section ‎3.01 and provided that any applicable notice provided in the permanent global Security shall have been given, then without unnecessary delay but in any event not later than the earliest date on which such interest may be so exchanged, the Issuer shall deliver to the Trustee definitive Securities in aggregate principal amount equal to the principal amount of such beneficial owner’s interest in such permanent global Security, executed by the Issuer and having a Guarantee executed by the Guarantors endorsed thereon. On or after the earliest date on which such interests may be so exchanged, such permanent global Security shall be surrendered by the Depositary for such permanent global Security to the Trustee, as the Issuer’s agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities without charge, and the Trustee shall authenticate and deliver, in exchange for each portion of such permanent global Security, an equal aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor and evidencing the same indebtedness as the portion of such permanent global Security to be exchanged which shall be in the form of Registered Securities. If a Registered Security is issued in exchange for any portion of a permanent global Security after the close of business at the office or agency where such exchange occurs on (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, then (in the case of clause (i)) interest or (in the case of clause (ii)) Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of such Registered Security, but will be payable on such Interest Payment Date or proposed date for payment, as the case may be, only to the Person who was the Holder of such permanent global Security at the close of business on the relevant Regular Record Date or Special Record Date, as the case may be.

 

If at any time the Depositary for Securities of a series notifies the Issuer that it is unwilling or unable to continue as Depositary for Securities of such series or if at any time the Depositary for global Securities for such series shall no longer be a clearing agency registered as such under the Securities Exchange Act of 1934, as amended, the Issuer shall appoint a successor depositary with respect to the Securities for such series. If a successor to the Depositary for

 

Securities is not appointed by the Issuer within 90 days after the Issuer receives such notice or becomes aware of such condition, as the case may be, the Issuer’s election pursuant to Section ‎3.01 shall no longer be effective with respect to the Securities for such series and the Issuer will execute, and the Trustee, upon receipt of an Issuer Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver replacement Securities of such series in definitive registered form, in authorized denominations and with the duly executed Guarantee duly endorsed thereon, and in an aggregate principal amount equal to the principal amount of the global Security or Securities representing such series and evidencing the same indebtedness in exchange for such global Security or Securities. The provisions of the last sentence of the immediately preceding paragraph shall be applicable to any exchange pursuant to this paragraph.

 

The Issuer may at any time and in its sole discretion determine that the Securities of any series issued in the form of one or more global Securities shall no longer be represented by such global Security or Securities. In such event, the Issuer will execute, and the Trustee, upon receipt of an Issuer Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver replacement Securities of such series in definitive registered form, in authorized denominations and with the duly executed Guarantee duly endorsed thereon, and in an aggregate principal amount equal to the principal amount of the global Security or Securities representing such series and evidencing the same indebtedness in exchange for such global Security or Securities. The provisions of the last sentence of the second preceding paragraph shall be applicable to any exchange pursuant to this paragraph.

 

Upon the exchange of a global Security for Securities in definitive registered form, such global Security shall be cancelled by the Trustee. Securities issued in exchange for a global Security pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee in writing. The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.

 

All Securities and Guarantees issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Issuer and the Guarantors, respectively, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities and the Guarantee surrendered upon such registration of transfer or exchange.

 

Every Registered Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Issuer or the Security Registrar) be duly endorsed, or be accompanied by a written instrument of transfer, in form satisfactory to the Issuer and the Security Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.

 

No service charge shall be made for any registration of transfer or exchange of Securities, but the Issuer or Security Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section ‎9.06 or ‎11.07 not involving any transfer.

 

Neither the Issuer nor the Security Registrar shall be required (i) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days before the day of the selection for redemption of Securities of that series under Section ‎11.03 and ending at the close of business on the day of the mailing of the relevant notice of redemption, or (ii) to register the transfer of or exchange any Registered Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part, or (iii) to issue, register the transfer of or exchange any Security which has been surrendered for repayment at the option of the Holder, except the portion, if any, of such Security not to be so repaid.

 

SECTION 3.06 Mutilated, Destroyed, Lost and Stolen Securities.

 

If any mutilated but fully identifiable Security is surrendered to the Trustee, the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor a replacement Security of the same series and of like tenor and principal amount and evidencing the same indebtedness and having endorsed thereon a Guarantee executed by the Guarantors and bearing a number not contemporaneously outstanding.

 

If there shall be delivered to the Issuer and the Trustee (i) evidence to their satisfaction of the destruction (including but not limited to mutilation causing the Security to not be fully identifiable), loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and the Guarantors and any agent of each of them harmless, then, in the absence of notice to the Issuer or the Trustee that such Security has been acquired by a bona fide purchaser, the Issuer shall execute and upon Issuer Order the Trustee shall authenticate and deliver, in lieu of any such mutilated, destroyed, lost or stolen Security, a replacement Security of the same series and of like tenor and principal amount and evidencing the same indebtedness and having endorsed thereon a Guarantee executed by the Guarantors and bearing a number not contemporaneously outstanding.

 

Notwithstanding the provisions of the previous two paragraphs, in case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Issuer in its discretion may, instead of issuing a replacement Security, pay such Security.

 

Upon the issuance of any replacement Security under this Section, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.

 

Every replacement Security of any series and the Guarantee endorsed thereon issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Security shall constitute a contractual obligation of the Issuer and the Guarantors, respectively, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.

 

The provisions of this Section, as amended or supplemented pursuant to Section ‎3.01 of this Indenture with respect to particular securities or generally, are exclusive and shall preclude

 

(to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.

 

SECTION 3.07 Payment of Principal and Interest; Interest Rights Preserved.

 

(a)   Unless otherwise provided as contemplated by Section ‎3.01 with respect to any series of Securities, interest, if any, on any Registered Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name such Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest at the office or agency of the Issuer maintained for such purpose pursuant to Section ‎10.02; provided, however, that each installment of interest, if any, on any Registered Security may at the Issuer’s option be paid by (i) mailing a check for such interest, payable to or upon the written order of the Person entitled thereto pursuant to Section ‎3.09, to the address of such Person as it appears on the Security Register or (ii) wire transfer to an account maintained by the Person entitled to such payment as specified in the Security Register. Principal paid in relation to any Security at Maturity shall be paid to the Holder of such Security only upon presentation and surrender of such Security to any office or agency referred to in this Section ‎3.07(a).

 

Any interest on any Registered Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such defaulted interest at the rate specified in the Securities of such series (such defaulted interest and, if applicable, interest thereon herein collectively called “Defaulted Interest”) shall be paid by the Issuer, at its election in each case, as provided in clause ‎(1) or ‎(2) below:

 

(1)   The Issuer may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Issuer shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Registered Security of such series and the date of the proposed payment, and at the same time the Issuer shall deposit with the Trustee an amount of money in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section ‎3.01 for the Securities of such series and except, if applicable, as provided in Sections ‎3.12(b), ‎3.12(d) and ‎3.12(e)) equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Issuer of the Special Record Date and, in the name and at the expense of the Issuer, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given in the manner provided in Section ‎1.06, not less than 10 days prior to such Special Record

 

Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so given, such Defaulted Interest shall be paid to the Persons in whose name the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause ‎(2).

 

(2)   The Issuer may make payment of any Defaulted Interest on the Registered Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Issuer to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.

 

(b)   Subject to the foregoing provisions of this Section and Section ‎3.05, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.

 

In the case of any Registered Security of any series that is convertible, which Registered Security is converted after any Regular Record Date and on or prior to the next succeeding Interest Payment Date (other than any Registered Security whose Maturity is prior to such Interest Payment Date), interest whose Stated Maturity is on such Interest Payment Date shall be payable on such Interest Payment Date notwithstanding such conversion, and such interest (whether or not punctually paid or duly provided for) shall be paid to the Person in whose name that Registered Security (or one or more predecessor Registered Securities) is registered at the close of business on such Regular Record Date. Except as otherwise expressly provided in the immediately preceding sentence, in the case of any Registered Security which is converted, interest whose due date or Interest Payment Date is after the date of conversion of such Registered Security shall not be payable.

 

SECTION 3.08 Reserved.

 

SECTION 3.09 Persons Deemed Owners.

 

Prior to due presentment of a Registered Security for registration of transfer, the Issuer, the Guarantors, the Trustee, the Security Registrar, the Paying Agent and any agent of any of the foregoing may treat the Person in whose name such Registered Security is registered as the owner of such Registered Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Sections ‎3.05 and ‎3.07) interest, if any, on such Security and for all other purposes whatsoever (other than the payment of Additional Amounts, if any), whether or not such Security be overdue, and none of the Issuer, the Guarantors, the Trustee, the Security Registrar, the Paying Agent or any agent of any of the foregoing shall be affected by notice to the contrary.

 

None of the Issuer, the Guarantors, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or

 

payments made on account of beneficial ownership interests of a Security in global form or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.

 

Notwithstanding the foregoing, with respect to any global Security, nothing herein shall prevent the Issuer, the Guarantors, the Trustee, the Security Registrar, the Paying Agent or any agent of any of the foregoing from giving effect to any written certification, proxy or other authorization furnished by any depositary, as a Holder, with respect to such global Security or impair, as between such depositary and owners of beneficial interests in such global Security, the operation of customary practices governing the exercise of the rights of such depositary (or its nominee) as Holder of such global Security.

 

SECTION 3.10 Cancellation.

 

Unless otherwise specified pursuant to Section ‎3.01, all Securities surrendered for payment, redemption, repayment at the option of the Holder, registration of transfer or exchange or for credit against any current or future sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee. All Securities so delivered to the Trustee shall be promptly cancelled by it. The Issuer or the Guarantors may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Issuer or any Guarantor may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Issuer has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. If the Issuer shall so acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are surrendered to the Trustee for cancellation.

 

No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures and certification of their disposal shall be delivered to the Issuer upon the Issuer’s written request unless by Issuer Order the Issuer shall direct that cancelled Securities be returned to it.

 

SECTION 3.11 Computation of Interest.

 

Except as otherwise specified as contemplated by Section ‎3.01 with respect to any Securities, interest, if any, on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months. For the purposes of disclosure under the Interest Act (Canada), the yearly rate of interest to which interest calculated under a Security for any period in any calendar year (the “calculation period”) is equivalent, is the rate payable under a Security in respect of the calculation period multiplied by a fraction the numerator of which is the actual number of days in such calendar year and the denominator of which is the actual number of days in the calculation period.

 

SECTION 3.12 Currency and Manner of Payments in Respect of Securities.

 

(a)   With respect to Registered Securities of any series not permitting the election provided for in paragraph ‎(b) below or the Holders of which have not made the election provided for in paragraph ‎(b) below, except as provided in paragraph ‎(d) below, payment of the principal of (and premium, if any) and interest, if any, on any Registered Security of such series will be made in the Currency in which such Registered Security, as the case may be, is denominated or stated to be payable. The provisions of this Section ‎3.12 may be modified or superseded with respect to any Securities pursuant to ‎3.01.

 

(b)   It may be provided pursuant to ‎3.01 with respect to Registered Securities of any series that Holders shall have the option, subject to paragraphs ‎(d) and ‎(e) below, to receive payments of principal of (or premium, if any) or interest, if any, on such Registered Securities in any of the Currencies which may be designated for such election by delivering to the Trustee a written election with signature guarantees and in the applicable form established pursuant to ‎3.01, not later than the close of business on the Election Date immediately preceding the applicable payment date. If a Holder so elects to receive such payments in any such Currency, such election will remain in effect for such Holder or any transferee of such Holder until changed by such Holder or such transferee by written notice to the Trustee (but any such change must be made not later than the close of business on the Election Date immediately preceding the next payment date to be effective for the payment to be made on such payment date and no such change or election may be made with respect to payments to be made on any Registered Security of such series with respect to which an Event of Default has occurred or with respect to which the Issuer has deposited funds pursuant to Article ‎Four or ‎Fourteen or with respect to which a notice of redemption has been given by the Issuer or a notice of option to elect repayment has been sent by such Holder or such transferee). Any Holder of any such Registered Security who shall not have delivered any such election to the Trustee not later than the close of business on the applicable Election Date will be paid the amount due on the applicable payment date in the relevant Currency as provided in Section ‎3.12(a). The Trustee shall notify the Exchange Rate Agent as soon as practicable after the Election Date of the aggregate principal amount of Registered Securities for which Holders have made such written election.

 

(c)   Unless otherwise specified pursuant to ‎3.01, if the election referred to in paragraph ‎(b) above has been provided for pursuant to ‎3.01, then, unless otherwise specified pursuant to ‎3.01, not later than the fourth Business Day after the Election Date for each payment date for Registered Securities of any series, the Exchange Rate Agent will deliver to the Issuer a written notice specifying, in the Currency in which Registered Securities of such series are payable, the respective aggregate amounts of principal of (and premium, if any) and interest, if any, on the Registered Securities to be paid on such payment date, specifying the amounts in such Currency so payable in respect of the Registered Securities as to which the Holders of Registered Securities of such series shall have elected to be paid in another Currency as provided in paragraph ‎(b) above. If the election referred to in paragraph ‎(b) above has been provided for pursuant to ‎3.01 and if at least one Holder has made such election, then, unless otherwise specified pursuant to ‎3.01, on the second Business Day preceding such payment date the Issuer will deliver to the Trustee for such series of Registered Securities an Exchange Rate Officer’s Certificate in respect of the Dollar or Foreign Currency payments to be made on such payment date. Unless otherwise specified pursuant to ‎3.01, the Dollar or Foreign Currency amount receivable by Holders of Registered Securities who have elected payment in a Currency as provided in paragraph ‎(b) above shall be determined by the Issuer on the basis of the applicable

 

Market Exchange Rate in effect on the third Business Day (the “Valuation Date”) immediately preceding each payment date, and such determination shall be conclusive and binding for all purposes, absent manifest error.

 

(d)   If a Conversion Event occurs with respect to a Foreign Currency in which any of the Securities are denominated or payable other than pursuant to an election provided for pursuant to paragraph ‎(b) above, then with respect to each date for the payment of principal of (and premium, if any) and interest, if any, on the applicable Securities denominated or payable in such Foreign Currency occurring after the last date on which such Foreign Currency was used (the “Conversion Date”), the Dollar shall be the Currency of payment for use on each such payment date. Unless otherwise specified pursuant to ‎3.01, the Dollar amount to be paid by the Issuer to the Trustee and by the Trustee or any other Paying Agent to the Holders of such Securities with respect to such payment date shall be, in the case of a Foreign Currency other than a currency unit, the Dollar Equivalent of the Foreign Currency or, in the case of a currency unit, the Dollar Equivalent of the Currency Unit, in each case as determined by the Exchange Rate Agent in the manner provided in paragraph ‎(f) or ‎(g) below.

 

(e)   Unless otherwise specified pursuant to ‎3.01, if the Holder of a Registered Security denominated in any Currency shall have elected to be paid in another Currency as provided in paragraph ‎(b) above, and a Conversion Event occurs with respect to such elected Currency, such Holder shall receive payment in the Currency in which payment would have been made in the absence of such election; and if a Conversion Event occurs with respect to the Currency in which payment would have been made in the absence of such election, such Holder shall receive payment in Dollars as provided in paragraph ‎(d) above.

 

(f)   The “Dollar Equivalent of the Foreign Currency” shall be determined by the Exchange Rate Agent and shall be obtained for each subsequent payment date by converting the specified Foreign Currency into Dollars at the Market Exchange Rate on the Conversion Date.

 

(g)   The “Dollar Equivalent of the Currency Unit” shall be determined by the Exchange Rate Agent and subject to the provisions of paragraph ‎(h) below shall be the sum of each amount obtained by converting the Specified Amount of each Component Currency into Dollars at the Market Exchange Rate for such Component Currency on the Valuation Date with respect to each payment.

 

(h)   For purposes of this Section ‎3.12 the following terms shall have the following meanings:

 

A “Component Currency” shall mean any Currency which, on the Conversion Date, was a component currency of the relevant currency unit, including, but not limited to, the Euro.

 

A “Specified Amount” of a Component Currency shall mean the number of units of such Component Currency or fractions thereof which were represented in the relevant currency unit, including, but not limited to, the Euro, on the Conversion Date. If after the Conversion Date the official unit of any Component Currency is altered by way of combination or subdivision, the Specified Amount of such Component Currency shall be

 

divided or multiplied in the same proportion. If after the Conversion Date two or more Component Currencies are consolidated into a single currency, the respective Specified Amounts of such Component Currencies shall be replaced by an amount in such single Currency equal to the sum of the respective Specified Amounts of such consolidated Component Currencies expressed in such single Currency, and such amount shall thereafter be a Specified Amount and such single Currency shall thereafter be a Component Currency. If after the Conversion Date any Component Currency shall be divided into two or more currencies, the Specified Amount of such Component Currency shall be replaced by amounts of such two or more currencies, having an aggregate Dollar Equivalent value at the Market Exchange Rate on the date of such replacement equal to the Dollar Equivalent value of the Specified Amount of such former Component Currency at the Market Exchange Rate immediately before such division and such amounts shall thereafter be Specified Amounts and such currencies shall thereafter be Component Currencies. If, after the Conversion Date of the relevant currency unit, including, but not limited to, the Euro, a Conversion Event (other than any event referred to above in this definition of “Specified Amount”) occurs with respect to any Component Currency of such currency unit and is continuing on the applicable Valuation Date, the Specified Amount of such Component Currency shall, for purposes of calculating the Dollar Equivalent of the Currency Unit, be converted into Dollars at the Market Exchange Rate in effect on the Conversion Date of such Component Currency.

 

“Election Date” shall mean the date for any series of Registered Securities as specified pursuant to clause ‎(15) of ‎3.01 by which the written election referred to in paragraph ‎(b) above may be made.

 

All decisions and determinations of the Exchange Rate Agent regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as specified above shall be in its sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the Issuer, the Trustee and all Holders of such Securities denominated or payable in the relevant Currency. The Exchange Rate Agent shall promptly give written notice to the Issuer and the Trustee of any such decision or determination.

 

In the event that the Issuer determines in good faith that a Conversion Event has occurred with respect to a Foreign Currency, the Issuer will immediately give written notice thereof to the Trustee and to the Exchange Rate Agent (and the Trustee will promptly thereafter transmit such notice in the manner provided for in Section ‎1.06 to the affected Holders) specifying the Conversion Date. In the event the Issuer so determines that a Conversion Event has occurred with respect to the Euro or any other currency unit in which Securities are denominated or payable, the Issuer will immediately transmit such written notice thereof to the Trustee and to the Exchange Rate Agent (and the Trustee will promptly thereafter transmit such notice in the manner provided for in Section ‎1.06 to the affected Holders) specifying the Conversion Date and the Specified Amount of each Component Currency on the Conversion Date. In the event the Issuer determines in good faith that any subsequent change in any Component Currency as set forth in the definition of Specified Amount above has occurred, the Issuer will similarly give written notice thereof to the Trustee and the Exchange Rate Agent.

 

The Trustee shall be fully justified and protected in relying and acting upon information received by it from the Issuer and the Exchange Rate Agent pursuant to this Section ‎3.12 with no liability for relying thereon and shall not otherwise have any duty or obligation to determine the accuracy or validity of such information independent of the Issuer or the Exchange Rate Agent.

 

For purposes of any provision of the Indenture where the Holders of Outstanding Securities may perform an Act which requires that a specified percentage of the Outstanding Securities of all series perform such Act and for purposes of any decision or determination by the Trustee of amounts due and unpaid for the principal (and premium, if any) and interest on the Securities of all series in respect of which moneys are to be disbursed ratably, the principal of (and premium, if any) and interest on the Outstanding Securities denominated in a Foreign Currency will be the amount in Dollars based upon the Market Exchange Rate for Securities of such series, as of the date for determining whether the Holders entitled to perform such Act have performed it, or as of the date of such decision or determination by the Trustee, as the case may be.

 

SECTION 3.13 Appointment and Resignation of Successor Exchange Rate Agent.

 

(a)   Unless otherwise specified pursuant to ‎3.01, if and so long as the Securities of any series (i) are denominated in a Currency other than Dollars or (ii) may be payable in a Currency other than Dollars, or so long as it is required under any other provision of this Indenture, then the Issuer will maintain with respect to each such series of Securities, or as so required, at least one Exchange Rate Agent. The Issuer will cause the Exchange Rate Agent to make the necessary foreign exchange determinations at the time and in the manner specified pursuant to ‎3.01 for the purpose of determining the applicable rate of exchange and, if applicable, for the purpose of converting the issued Currency into the applicable payment Currency for the payment of principal (and premium, if any) and interest, if any, pursuant to Section ‎3.12.

 

(b)   The Issuer shall have the right to remove and replace from time to time the Exchange Rate Agent for any series of Securities. No resignation or removal of the Exchange Rate Agent and no appointment of a successor Exchange Rate Agent pursuant to this Section shall become effective until the acceptance of appointment by the successor Exchange Rate Agent as evidenced by a written instrument delivered to the Issuer and the Trustee.

 

(c)   If the Exchange Rate Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the Exchange Rate Agent for any cause with respect to the Securities of one or more series, the Issuer, by or pursuant to a Board Resolution, shall promptly appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to the Securities of that or those series (it being understood that any such successor Exchange Rate Agent may be appointed with respect to the Securities of one or more or all of such series and that, unless otherwise specified pursuant to Section ‎3.01, at any time there shall only be one Exchange Rate Agent with respect to the Securities of any particular series that are originally issued by the Issuer on the same date and that are initially denominated and/or payable in the same Currency).

 

SECTION 3.14 Certain Transfers and Exchanges.

 

Subject to Section ‎3.01, transfers and exchanges of Securities and beneficial interests in a Global Security of the kinds specified in this Section ‎3.14 shall be made only in accordance with this Section ‎3.14.

 

(a)   If, at any time, whether prior to or after the expiration of the holding period with respect to the Securities set forth in Rule 144(d) under the Securities Act, an owner of a beneficial interest in a Restricted Global Security deposited with the Trustee, as custodian for the Depositary, wishes to transfer its interest in such Restricted Global Security to a Person who is required or permitted to take delivery thereof in the form of an interest in a Regulation S Global Security, such owner shall, subject to the Applicable Procedures, exchange or cause the exchange of such interest for an equivalent beneficial interest in a Regulation S Global Security as provided in this Section ‎3.14(a). Upon receipt by the Trustee of (1) written instructions given in accordance with the Applicable Procedures from an Agent Member directing the Trustee to credit or cause to be credited a beneficial interest in the Regulation S Global Security in an amount equal to the beneficial interest in the applicable Restricted Global Security to be exchanged, (2) a written order given in accordance with the Applicable Procedures containing information regarding the participant account of the Depositary and the Euroclear or Clearstream account (if applicable) to be credited with such increase and (3) a certificate substantially in the form of Exhibit B-1 hereto given by the owner of such beneficial interest, the Trustee, as Security Registrar, shall instruct the Depositary to reduce or cause to be reduced the aggregate principal amount of the applicable Restricted Global Security and to increase or cause to be increased the aggregate principal amount of the applicable Regulation S Global Security by the principal amount of the beneficial interest in the Restricted Global Security to be exchanged, to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Regulation S Global Security equal to the reduction in the aggregate principal amount of the applicable Restricted Global Security, and to debit, or cause to be debited, from the account of the Person making such exchange or transfer the beneficial interest in the Restricted Global Security that is being exchanged or transferred.

 

(b)   If, at any time prior to the expiration of one year from the date of the acquisition of the Securities from the Issuer, or from an Affiliate of the Issuer, an owner of a beneficial interest in a Regulation S Global Security deposited with the Trustee as custodian for the Depositary wishes to transfer its interest in such Regulation S Global Security to a Person who is required or permitted to take delivery thereof in the form of an interest in a Restricted Global Security, such owner shall, subject to the Applicable Procedures, exchange or cause the exchange of such interest for an equivalent beneficial interest in a Restricted Global Security, as provided in this Section ‎3.14(b). Upon receipt by the Trustee of (1) written instructions given in accordance with the Applicable Procedures from an Agent Member, directing the Trustee, as Security Registrar, to credit or cause to be credited a beneficial interest in the Restricted Global Security equal to the beneficial interest in the Regulation S Global Security to be exchanged; (2) a written order given in accordance with the Applicable Procedures containing information regarding the participant account of the Depositary to be credited with such increase; and (3) a certificate substantially in the form of Exhibit B-2 hereto given by the owner of such beneficial interest, the Trustee, as Security Registrar, shall instruct the Depositary to reduce or cause to be reduced the aggregate principal amount of such Regulation S Global Security and to increase or cause to be increased the aggregate principal amount of the applicable Restricted Global Security by the principal amount of the beneficial interest in the Regulation S Global Security to be exchanged, and the

 

Trustee, as Security Registrar, shall instruct the Depositary, concurrently with such reduction, to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the applicable Restricted Global Security equal to the reduction in the aggregate principal amount of such Regulations S Global Security and to debit or cause to be debited from the account of the Person making such transfer the beneficial interest in the Regulation S Global Security that is being transferred.

 

(c)   If the holder of a beneficial interest in a Regulation S Global Security wishes, at any time after the expiration of one year from the date of the acquisition of the Securities from the Issuer, or from an Affiliate of the Issuer, to (A) transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Restricted Global Security or (B) to exchange such interest for a beneficial interest in the Restricted Global Security, such transfer or exchange may be effected, subject to the Applicable Procedures, only in accordance with this Section ‎3.14(c). Upon receipt by the Trustee of (1) written instructions given in accordance with the Applicable Procedures from an Agent Member directing the Trustee to credit or cause to be credited a beneficial interest in the Restricted Global Security in an amount equal to the beneficial interest in the Regulation S Global Security to be so transferred or exchanged, (2) a written order given in accordance with the Applicable Procedures containing information regarding the participant account of the Depositary to be credited with such beneficial interest and (3) a certificate substantially in the form of Exhibit B-3 hereto given by the holder of such beneficial interest, the Trustee, as Security Registrar, shall instruct the Depositary to reduce or cause to be reduced the aggregate principal amount of such Regulation S Global Security and to increase or cause to be increased the aggregate principal amount of the applicable Restricted Global Security by the principal amount of the beneficial interest in the Regulation S Global Security to be so transferred or exchanged, and the Trustee, as Security Registrar, shall instruct the Depositary, concurrently with such reduction, to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the applicable Restricted Global Security equal to the reduction in the aggregate principal amount of such Regulations S Global Security and to debit or cause to be debited from the account of the Person making such transfer or exchange the beneficial interest in the Regulation S Global Security that is being transferred or exchanged.

 

(d)   Beneficial interests in a Restricted Global Security may be transferred to a Person who takes delivery in the form of an interest in such Restricted Global Security without any written certification from the transferor or the transferee, but the transferee will be deemed to make the representations set forth in Exhibit B-2 or Exhibit B-3, as applicable.

 

(e)   Beneficial interests in a Regulation S Global Security may be transferred to a Person who takes delivery in the form of an interest in such Regulation S Global Security without any written certification from the transferor or the transferee; provided, however, that prior to the expiration of the Restricted Period, transfers of beneficial interests in the Regulation S Global Security may not be made to a U.S. Person or for the account or benefit of a U.S. Person (other than a distributor (as defined in Regulation S under the Securities Act)).

 

(f)   The following legends (the “Private Placement Legend”) shall appear on the face of all Global Securities and definitive Securities issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture.

 

(i)   Private Placement Legend.

 

(A)   Each Global Security and each definitive Security (and all Securities issued in exchange therefor or substitution thereof) shall bear a legend, until the Resale Restriction Termination Date, in substantially the following form:

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”)), OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, PURSUANT TO RULE 904 OF REGULATION S, AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE RESALE RESTRICTION TERMINATION DATE, ONLY (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, PURSUANT TO RULE 904 OF REGULATION S, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN EACH CASE, THE SECURITIES LAWS OF ANY OTHER JURISDICTION, INCLUDING ANY STATE OF THE UNITED STATES, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL SATISFACTORY TO EACH OF THEM

 

AND/OR A CERTIFICATE OF TRANSFER OR EXCHANGE IN THE FORM PRESCRIBED IN THE INDENTURE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

BY ITS ACQUISITION AND HOLDING OF THIS SECURITY THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED, WARRANTED AND AGREED THAT EITHER (I) IT IS NOT AND WILL NOT BE FOR SO LONG AS IT HOLDS ANY SECURITY (OR INTEREST IN A SECURITY) AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE FIDUCIARY RESPONSIBILITY REQUIREMENTS OF TITLE I OF U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A “PLAN” OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF SUCH EMPLOYEE BENEFIT PLAN OR PLAN’S INVESTMENT IN THE ENTITY, OR A GOVERNMENTAL, NON-U.S., CHURCH OR OTHER PLAN WHICH IS SUBJECT TO ANY FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAWS”), OR (II) THE PURCHASE, HOLDING AND DISPOSITION OF THIS SECURITY WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR, IN THE CASE OF A GOVERNMENTAL, NON-U.S., CHURCH OR OTHER PLAN, A SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.

 

(ii) Global Security Legend. Each Global Security shall bear a legend in substantially the following form:

 

THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE REGISTRAR MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION ‎3.05 OF THE INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION ‎3.05 OF THE INDENTURE AND (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION ‎3.10 OF THE INDENTURE.

 

UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY

 

MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

(iii) Regulation S Temporary Global Security Legend. Each Regulation S Temporary Global Security shall bear a legend in substantially the following form:

 

THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SECURITY, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR A REGULATION S PERMANENT GLOBAL SECURITY, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL SECURITY SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.

 

(g)   By its acceptance of any Security bearing the Private Placement Legend, each Holder of such a Security acknowledges the restrictions on transfer of such Security set forth in this Indenture and in the Private Placement Legend, and agrees that it will transfer such Security only as provided in this Indenture.

 

ARTICLE Four
SATISFACTION AND DISCHARGE

 

SECTION 4.01 Satisfaction and Discharge of Indenture.

 

This Indenture shall upon Issuer Request cease to be of further effect with respect to any series of Securities issued by the Issuer specified in such Issuer Request (except as to any surviving rights of registration of transfer or exchange of Securities of such series expressly provided for herein or pursuant hereto, and the rights of Holders of Outstanding Securities to

 

receive, payments in respect of the principal of (and premium, if any) and interest, if any, on such Securities when such payments are due and except as provided in the last paragraph of this Section ‎4.01) and the Trustee, at the expense of the Issuer, shall execute proper instruments prepared by the Issuer acknowledging satisfaction and discharge of this Indenture as to such series when

 

(1)   either

 

(A)   all Securities of such series theretofore authenticated and delivered (other than (i) Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section ‎3.06, (ii) Securities called for redemption and maturing after the relevant Redemption Date, whose surrender has been waived as provided in Section ‎11.06, and (iii) Securities of such series for whose payment money has theretofore been deposited in trust with the Trustee or any Paying Agent or segregated and held in trust by the Issuer and thereafter repaid to the Issuer, as provided in Section ‎10.03) have been delivered to the Trustee for cancellation; or

 

(B)   all Securities of such series and, in the case of ‎(i) or ‎(ii) below, not theretofore delivered to the Trustee for cancellation

 

(i)   have become due and payable, or

 

(ii)   will become due and payable at their Stated Maturity within one year, or

 

(iii)   if redeemable at the option of the Issuer, are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer,

 

and the Issuer, in the case of ‎(i), ‎(ii) or ‎(iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for such purpose an amount in the Currency in which the Securities of such series are payable, sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal (and premium, if any) and interest, if any, to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;

 

(2)   the Issuer or the Guarantors has paid or caused to be paid all other sums payable hereunder by the Issuer or the Guarantors, as the case may be, and

 

(3)   the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied with.

 

Notwithstanding the satisfaction and discharge of this Indenture, the provisions of Section ‎10.05, the obligations of the Issuer to the Trustee under Section ‎6.07, the obligations of the Trustee to any other Authenticating Agent under Section ‎6.12 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of clause ‎(1) of this Section, the provisions of Sections ‎1.13, ‎1.14, ‎3.05, ‎3.06, ‎10.02, ‎10.03 and any other applicable provisions of Article ‎Eleven and the obligations of the Trustee under Section ‎4.02 shall survive such satisfaction and discharge and remain in full force and effect.

 

SECTION 4.02 Application of Trust Money.

 

Subject to the provisions of the last paragraph of Section ‎10.03, all money deposited with the Trustee pursuant to Section ‎4.01 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer or a Guarantor acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest, if any, for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.

 

ARTICLE Five
REMEDIES

 

SECTION 5.01 Events of Default.

 

“Event of Default”, wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), unless such event is specifically deleted or modified in or pursuant to a supplemental indenture, Board Resolution or Officers’ Certificate establishing the terms of such series pursuant to Section ‎3.01 of this Indenture:

 

(1)   the Issuer defaults in the payment of any interest upon any Security of that series when it becomes due and payable and such default continues for a period of 60 days (whether or not such payment is prohibited by the subordination provisions applicable to any such series of Securities); provided that this clause (1) shall not apply to the deferral of interest payments in accordance with the terms of any such series of Securities, to the extent such concept exists therein; or

 

(2)   the Issuer defaults in the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity and continuance of such default for a period of three Business Days thereafter (whether or not such payment is prohibited by the subordination provisions applicable to any such series of Securities); or

 

(3)   the Issuer defaults in the deposit of any sinking fund payment when and as due by the terms of a Security of that series and continuance of such default for a period of three Business Days thereafter; or

 

(4)   the Issuer or the Guarantors, as applicable, default in the performance of or breaches any covenant or warranty in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section 5.01

 

specifically dealt with or which has expressly been included in or pursuant to this Indenture solely for the benefit of one or more series of Securities other than that series), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Issuer and the Guarantors by the Trustee, or to the Issuer, the Guarantors and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or

 

(5)   default in the performance, or breach, of any other covenant or warranty of the Issuer or the Guarantors in this Indenture or the Securities of that series (other than a default in the performance or breach of a covenant or agreement which is specifically dealt with elsewhere in this Section and covenants and warranties solely applicable to one or more other series of subordinated debt Securities issued under this Indenture), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Issuer and the Guarantors by the Trustee or to the Issuer, the Guarantors and the Trustee by the Holders of at least 25% in principal amount of all Outstanding Securities affected thereby, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or

 

(6)   Indebtedness of the Issuer or the Guarantors is accelerated by the Holders thereof because of a default and the total amount of such Indebtedness unpaid or accelerated exceeds in the aggregate the greater of (i) $800,000,000 and (ii) 3% of the Company’s consolidated net assets; or

 

(7)   the Issuer or the Guarantors pursuant to or under or within the meaning of any Bankruptcy Law:

 

(i)   commences a proceeding or makes an application seeking a Bankruptcy Order;

 

(ii)   consents to the making of a Bankruptcy Order or the commencement of any proceeding or application seeking the making of a Bankruptcy Order against it;

 

(iii)   consents to the appointment of a Custodian of it or for any substantial part of its property;

 

(iv)   makes a general assignment for the benefit of its creditors or files a proposal or notice of intention to make a proposal or other scheme of arrangement involving the rescheduling, reorganizing or compromise of its indebtedness;

 

(v)   files an assignment in bankruptcy; or

 

(vi)   consents to the filing of an assignment in bankruptcy or the appointment of or taking possession by a Custodian; or

 

(8)   a court of competent jurisdiction in any involuntary case or proceeding makes a Bankruptcy Order against the Issuer or the Guarantors, and such Bankruptcy Order remains unstayed and in effect for 90 consecutive days; or

 

(9)   a Custodian shall be appointed out of court with respect to the Issuer or the Guarantors, or with respect to all or any substantial part of the property of the Issuer or the Guarantors and such appointment shall not have been vacated, discharged, or stayed or bonded pending appeal within 90 days, or any encumbrancer shall take possession of all or any substantial part of the property of the Issuer or the Guarantors and such possession shall not have reverted to the Issuer or the Guarantors, as applicable, within 90 days; or

 

(10)   a Guarantee by a Guarantor of the Securities of such series ceases to be in full force and effect (other than in accordance with the terms of such Guarantee) or a Guarantor denies or disaffirms its obligations under such Guarantee; or

 

(11)   any other Event of Default provided with respect to Securities of that series.

 

“Bankruptcy Law” means Title 11, U.S. Code, the Federal Bankruptcy Code, Bankruptcy and Insolvency Act (Canada), Companies’ Creditors Arrangement Act (Canada), or any similar U.S., Canadian provincial law or state law, in each case, as amended, or any similar foreign law for the relief from, or otherwise affecting, creditors. “Custodian” means any receiver, interim receiver, receiver and manager, trustee, assignee, liquidator, sequestrator, monitor, custodian or similar official or agent or any other Person with like powers. “Bankruptcy Order” means any court order made in a proceeding pursuant to or within the meaning of any Bankruptcy Law, containing an adjudication of bankruptcy or insolvency, or providing for liquidation, winding-up, dissolution or reorganization, or appointing a Custodian of a debtor or of all or any substantial part of a debtor’s property, or providing for the staying, arrangement, adjustment or compromise of indebtedness or other relief of a debtor.

 

SECTION 5.02 Acceleration of Maturity; Rescission and Annulment.

 

If an Event of Default (other than an Event of Default specified in clause ‎(7), (7) or (8) of Section ‎5.01) with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal amount (or, if the Securities of that series are Original Issue Discount Securities or Indexed Securities, such portion of the principal amount as may be specified in the terms of such series), premium, if any, of all of the Outstanding Securities of that series and any accrued but unpaid interest thereon to be due and payable immediately, by a notice in writing to the Issuer and the Guarantors (and to the Trustee if given by Holders or other act on the part of the Trustee or any Holder), and upon any such declaration such principal amount (or specified portion thereof), premium, if any, and any accrued but unpaid interest thereon shall become immediately due and payable. If an Event of Default described in clause ‎(7), (7) or (8) of Section ‎5.01 occurs, then the principal amount (or, if any such Securities are Original Issue Discount Securities or Indexed Securities, such portion of the principal amount as may be specified in the terms of that series) of all of the Outstanding

 

Securities, premium, if any, and any accrued but unpaid interest thereon shall ipso facto become and be immediately due and payable without any declaration, notice or other act on the part of the Trustee or any Holder.

 

At any time after a declaration of acceleration with respect to Securities of one or more series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter provided in this Article, the Holders of a majority in principal amount of the Outstanding Securities of such one or more series (voting as a single class), by written notice to the Issuer, the Guarantors and the Trustee, may rescind and annul such declaration and its consequences if:

 

(1)   the Issuer has or the Guarantors have paid or deposited with the Trustee a sum sufficient to pay in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section ‎3.01 for the Securities of such series and except, if applicable, as provided in Sections ‎3.12(b), ‎3.12(d), ‎3.12(e)),

 

(A)   all overdue interest, if any, on all Outstanding Securities of that series (or of all series, as the case may be),

 

(B)   all unpaid principal of (and premium, if any, on) all Outstanding Securities of that series (or of all series, as the case may be) which has become due otherwise than by such declaration of acceleration, and interest on such unpaid principal at the rate or rates prescribed therefor in such Securities,

 

(C)   to the extent lawful, interest on overdue interest, if any, at the rate or rates prescribed therefor in such Securities, and

 

(D)   all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and

 

(2)   all Events of Default with respect to Securities of that series (or of all series, as the case may be), other than the non-payment of amounts of principal of, premium, if any, or interest on Securities of that series (or of all series, as the case may be) which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section ‎5.13.

 

No such rescission shall affect any subsequent default or impair any right consequent thereon.

 

SECTION 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee.

 

The Issuer covenants that if:

 

(1)   default is made in the payment of any installment of interest on any Security issued by the Issuer when such interest becomes due and payable and such default continues for a period of 30 days, or

 

(2)   default is made in the payment of the principal of (or premium, if any, on) any Security issued by the Issuer at the Maturity thereof,

 

then the Issuer will, upon demand of the Trustee, pay to the Trustee for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal (and premium, if any) and interest, if any, and interest on any overdue principal (and premium, if any) and to the extent lawful on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.

 

If the Issuer fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Issuer, the Guarantors or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Issuer, the Guarantors or any other obligor upon such Securities, wherever situated.

 

If an Event of Default with respect to Securities of any series (or of all series, as the case may be) occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series (or of all series, as the case may be) by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.

 

SECTION 5.04 Trustee May File Proofs of Claim.

 

In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Issuer, the Guarantors or the property of the Issuer, or the Guarantors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Issuer or the Guarantors for the payment of overdue principal, premium, if any, or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,

 

(i)   to file and prove a claim for the whole amount of principal (and premium, if any), or such portion of the principal amount of any series of Original Issue Discount Securities or Indexed Securities as may be specified in the terms of such series, and interest, if any, owing and unpaid in respect of the Securities or the Guarantee and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and

 

(ii)   to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;

 

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section ‎6.07.

 

Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the Guarantee or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

 

SECTION 5.05 Trustee May Enforce Claims Without Possession of Securities.

 

All rights of action and claims under this Indenture, the Securities or the Guarantee may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, as well as its agent and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.

 

SECTION 5.06 Application of Money Collected.

 

Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, if any, upon presentation of the Securities, or both, as the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

 

First: To the payment of all amounts due the Trustee under Section ‎6.07;

 

Second: To the payment of the amounts then due and unpaid for principal of (and premium, if any) and interest, if any, on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal (and premium, if any) and interest, if any, respectively; and

 

Third: The balance, if any, to the Person or Persons entitled thereto.

 

SECTION 5.07 Limitation on Suits.

 

No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, the Securities or the Guarantee, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless

 

(1)   such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of such series;

 

(2)   the Holders of not less than 25% in principal amount of the Outstanding Securities of all series affected by such Event of Default (determined as provided in Section ‎5.02 and, if more than one series of Securities, as one class), shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;

 

(3)   such Holder or Holders have offered to the Trustee reasonable indemnity satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request;

 

(4)   the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and

 

(5)   no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority or more in principal amount of the Outstanding Securities of all series affected by such Event of Default (determined as provided in Section ‎5.02 and, if more than one series of Securities, as one class);

 

it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders of Outstanding Securities of such affected series, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all Holders of Outstanding Securities of such affected series. For purposes of clarity, it is hereby understood and agreed that an Event of Default described in clause ‎(1), ‎(2) or ‎(3) of Section ‎5.01 with respect to the Securities of any series shall, for purposes of this Section ‎5.07, be deemed to affect only such series of Securities.

 

SECTION 5.08 Unconditional Right of Holders to Receive Principal, Premium and Interest.

 

Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment, as provided herein (including Article ‎Fourteen) and in such Security (and the Guarantee endorsed thereon) of the principal of (and premium, if any) and (subject to Section ‎3.07) interest, if any, on, such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.

 

SECTION 5.09 Restoration of Rights and Remedies.

 

If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Issuer, the Guarantors, the Trustee and the Holders of Securities shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.

 

SECTION 5.10 Rights and Remedies Cumulative.

 

Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section ‎3.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not, to the extent permitted by law, prevent the concurrent assertion or employment of any other appropriate right or remedy.

 

SECTION 5.11 Delay or Omission Not Waiver.

 

No delay or omission of the Trustee or of any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or any acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.

 

SECTION 5.12 Control by Holders.

 

The Holders of not less than a majority in principal amount of the Outstanding Securities of all series affected by an Event of Default (determined as provided in Section ‎5.02 and, if more than one series of Securities, as one class) shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Outstanding Securities of such affected series, the Guarantee in respect thereof, provided in each case

 

(1)   such direction shall not be in conflict with any rule of law or with this Indenture,

 

(2)   the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and

 

(3)   the Trustee need not take any action which might expose the Trustee to personal liability or be unduly prejudicial to the Holders of Outstanding Securities of such affected series not joining therein.

 

For purposes of clarity, it is hereby understood and agreed that an Event of Default described in clause ‎(1), ‎(1), ‎(2) or ‎(3) of Section ‎5.01 with respect to the Securities of any series shall, for purposes of this Section ‎5.12 be deemed to affect only such series of Securities.

 

SECTION 5.13 Waiver of Past Defaults.

 

Subject to Section ‎5.02, the Holders of not less than a majority in principal amount of the Outstanding Securities of all series with respect to which a Default shall have occurred and be continuing (as one class if more than one series) may on behalf of the Holders of all the Outstanding Securities of such affected series waive any such past Default, and its consequences, except a Default

 

(1)   in respect of the payment of the principal of (or premium, if any) or interest, if any, on any Security, or

 

(2)   in respect of a covenant or provision which under Article ‎Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such affected series.

 

Upon any such waiver, any such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon. For purposes of clarity, it is hereby understood and agreed that an Event of Default described in clause ‎(1), ‎(2) or ‎(3) of Section ‎5.01 with respect to the Securities of any series shall, for purposes of this Section ‎5.13, be deemed to affect only such series of Securities.

 

SECTION 5.14 Waiver of Stay or Extension Laws.

 

The Issuer and the Guarantors covenant (to the extent that they may lawfully do so) that they will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Issuer and the Guarantors (to the extent that they may lawfully do so) hereby expressly waive all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

 

SECTION 5.15 Undertaking for Costs.

 

All parties to this Indenture agree, and each Holder of any Security by its acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of any undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit having due regard to the merits and good faith of the claims or defenses made by such party

 

litigant; but the provisions of this Section shall not apply to any suit instituted by the Issuer, to any suit instituted by the Guarantors, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest on any Security (or under the Guarantee) on or after the respective Stated Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date).

 

ARTICLE Six
THE TRUSTEE

 

SECTION 6.01 Certain Duties and Responsibilities.

 

(a)   Except during the continuance of an Event of Default with respect to the Securities of any series, (1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture, but need not confirm or investigate the accuracy of any mathematical calculations or other facts stated therein.

 

(b)   In case an Event of Default with respect to Securities of any series has occurred and is continuing, the Trustee shall, with respect to the Securities of such series, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. Notwithstanding the foregoing, the Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers.

 

(c)   No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that (1) this subsection shall not be construed to limit the effect of subsection ‎(a) of this Section; (2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and (3) the Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities of any series in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of such series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture.

 

(d)   Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.

 

SECTION 6.02 Notice of Defaults.

 

Within 90 days after the occurrence of any Default hereunder with respect to the Securities of any series, the Trustee shall transmit in the manner and to the extent provided in TIA Section 313(c), notice of such default hereunder known to the Trustee, unless such Default shall have been cured or waived; provided, however, that, except in the case of a Default in the payment of the principal of (or premium, if any) or interest, if any, on any Security of such series or in the payment of any sinking fund installment with respect to Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interest of the Holders of Securities of such series; and provided further that in the case of any Default of the character specified in Section 5.01(4) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof.

 

SECTION 6.03 Certain Rights of Trustee.

 

Subject to the provisions of TIA Sections 315(a) through 315(d):

 

(1)   the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

 

(2)   any request or direction of the Issuer mentioned herein shall be sufficiently evidenced by an Issuer Request or Issuer Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;

 

(3)   whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers’ Certificate;

 

(4)   the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;

 

(5)   subject to the provisions of the Indenture relating to the duties of the Trustee in case an Event of Default occurs and is continuing, the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities of any series pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity

 

satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;

 

(6)   the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer and the Guarantor, personally or by agent or attorney;

 

(7)   in no event shall the Trustee be responsible or liable for special, indirect, consequential or punitive loss or damage of any kind whatsoever (including, but not limited to, loss of profit), irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;

 

(8)   the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent, custodian or attorney appointed with due care by it hereunder;

 

(9)   the Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;

 

(10)   prior to the occurrence of an Event of Default of which a Responsible Officer of the Trustee shall have actual knowledge, and after the curing of all such Events of Default which may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee;

 

(11)   the Trustee shall not be required to take notice or be deemed to have notice or knowledge of any Default or Event of Default unless a Responsible Officer of the Trustee, shall have received written notice or obtained actual knowledge thereof. In the absence of receipt of such notice or actual knowledge, the Trustee may conclusively assume that there is no Default or Event of Default;

 

(12)   the right of the Trustee to perform any discretionary act enumerated in this Indenture shall not be construed as a duty; and

 

(13)   when acting in the capacity of the Security Registrar, Authenticating Agent or the Paying Agent hereunder, the rights, protections, immunities and indemnities afforded to the Trustee hereunder shall also be afforded to it in such capacities as if they were set forth herein as such.

 

In light of Federal law requiring all financial institutions to obtain, verify, and record information that identifies each person who opens an account, when any account is opened, the Trustee will ask for information that will allow the Trustee to identify relevant parties in order to comply with such laws. The parties hereto hereby acknowledge such information disclosure requirements and agree to comply with all such information disclosure requests from time to time from the Trustee.

 

The Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

 

SECTION 6.04 Trustee Not Responsible for Recitals or Issuance of Securities.

 

The recitals contained herein and in the Securities, except for the Trustee’s certificates of authentication, shall be taken as the statements of the Issuer and the Guarantors, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representation as to the validity or sufficiency of this Indenture or of the Securities except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility on Form T-1 supplied to the Issuer are true and accurate, subject to the qualifications set forth therein. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Issuer of Securities or the proceeds thereof.

 

SECTION 6.05 May Hold Securities.

 

The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Issuer or of the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to TIA Sections 310(b) and 311, may otherwise deal with the Issuer with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.

 

SECTION 6.06 Money Held in Trust.

 

Money held by the Trustee or any Paying Agent in trust hereunder need not be segregated from other funds except to the extent required by law. Neither the Trustee nor any Paying Agent shall be under any liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Issuer.

 

SECTION 6.07 Compensation and Reimbursement.

 

Each of the Issuer and the Guarantors agree, jointly and severally:

 

(1)   to pay to the Trustee from time to time such reasonable compensation as the Issuer and the Trustee shall from time to time agree in writing, for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);

 

(2)   except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and

 

(3)   to indemnify the Trustee for, and to hold each harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.

 

The obligations of the Issuer under this Section to compensate the Trustee, to pay or reimburse the Trustee for expenses, disbursements and advances and to indemnify and hold harmless the Trustee shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture. As security for the performance of such obligations of the Issuer and the Trustee shall each have a claim prior to the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (or premium, if any) or interest, if any, on particular Securities.

 

When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section ‎5.01(7), (7) or (8), the expenses (including reasonable charges and expense of its counsel) of and the compensation for such services are intended to constitute expenses of administration under any applicable bankruptcy, insolvency or other similar law.

 

The provisions of this Section shall survive the termination of this Indenture.

 

SECTION 6.08 Corporate Trustee Required; Eligibility; Conflicting Interests.

 

The Trustee shall comply with the terms of Section 310(b) of the TIA. There shall be at all times a Trustee hereunder which shall in the case of the Trustee, be eligible to act as Trustee under TIA Section 310(a)(1) and shall in the case both of the Trustee, have a combined capital and surplus (together with that of its parent, if applicable) of at least $50,000,000. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of Federal, State, territorial or District of Columbia supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.

 

SECTION 6.09 Resignation and Removal; Appointment of Successor.

 

(a)   No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee, in accordance with the applicable requirements of Section ‎6.10.

 

(b)   The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Issuer. If the instrument of acceptance by a successor Trustee required by Section ‎6.10 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

 

(c)   The Trustee may be removed at any time with respect to the Securities of any series and a successor Trustee appointed by the Issuer or by Act of the Holders of not less than a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Issuer in the case of an Act of the Holders. If the instrument of acceptance by a successor Trustee required by Section ‎6.10 shall not have been delivered to the Trustee within 30 days after removal, the removed Trustee may, at the expense of the Issuer, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

 

(d)   If at any time:

 

(1)   the Trustee shall fail to comply with the provisions of TIA Section 310(b) after written request therefor by the Issuer or by any Holder who has been a bona fide Holder of a Security for at least six months, or

 

(2)   the Trustee shall cease to be eligible under Section ‎6.08 and shall fail to resign after written request therefor by the Issuer or by any Holder who has been a bona fide Holder of a Security for at least six months, or

 

(3)   the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,

 

then, in any such case, (i) the Issuer, by a Board Resolution, may remove the Trustee with respect to all Securities or the Securities of such series, or (ii) subject to TIA Section 315(e), any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee, as with respect to all Securities of such series and the appointment of a successor Trustee or Trustees.

 

(e)   If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Issuer, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees, with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series). If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding

 

Securities of such series delivered to the Issuer and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Issuer. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Issuer or the Holders and accepted appointment in the manner hereinafter provided, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

 

(f)   The Issuer shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to the Holders of Securities of such series in the manner provided for in Section ‎1.06. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.

 

SECTION 6.10 Acceptance of Appointment by Successor.

 

(a)   In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Issuer, to the Guarantors and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Issuer, the Guarantors or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.

 

(b)   In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Issuer, the Guarantors, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein the successor Trustee shall accept such appointment and which (1)shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become

 

effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Issuer, the Guarantors or any successor Trustee or, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates. Whenever there is a successor Trustee with respect to one or more (but less than all) series of securities issued pursuant to this Indenture, the terms “Indenture” and “Securities” shall have the meanings specified in the provisos to the respective definitions of those terms in Section ‎1.01 which contemplate such situation.

 

(c)   Upon request of any such successor Trustee, the Issuer and the Guarantors shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all rights, powers and trusts referred to in paragraph ‎(a) or ‎(b) of this Section, as the case may be.

 

(d)   No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.

 

SECTION 6.11 Merger, Conversion, Consolidation or Succession to Business.

 

Any business entity into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any entity succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities. In case any of the Securities shall not have been authenticated by such predecessor Trustee, any successor Trustee may authenticate and deliver such Securities either in the name of any predecessor hereunder or in the name of the successor Trustee or the Trustee. In all such cases such certificates shall have the full force and effect which this Indenture provides for the certificate of authentication of the Trustee; provided, however, that the right to adopt the certificate of authentication of any predecessor Trustee or to authenticate Securities in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.

 

SECTION 6.12 Appointment of Authenticating Agent.

 

At any time when any of the Securities remain Outstanding, Trustee shall be an Authentication Agent and the Trustee may appoint one or more additional Authenticating Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series and the Trustee shall give written notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating

 

Agent will serve, in the manner provided for in Section ‎1.06. Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Any such appointment shall be evidenced by an instrument in writing signed by a Responsible Officer of the Trustee, and a copy of such instrument shall be promptly furnished to the Issuer. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the certificate of authentication of the Trustee, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Issuer and shall at all times be a corporation organized and doing business under the laws of the United States of America, any state thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by federal or state authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect specified in this Section.

 

Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.

 

An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee, the Trustee and to the Issuer. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Issuer. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Issuer and shall give written notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, in the manner provided for in Section ‎1.06. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.

 

The Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section, and the Trustee shall be entitled to be reimbursed for such payments, subject to the provisions of Section ‎6.07.

 

If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternate certificate of authentication in the following form:

 

Dated:                                

 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

	EQUINITI TRUST COMPANY, LLC,   As Trustee
	By
		As Authenticating Agent
	By
		Authorized Officer

 

ARTICLE Seven
HOLDERS’ LISTS AND REPORTS BY TRUSTEE, ISSUER AND GUARANTORS

 

SECTION 7.01 Disclosure of Names and Addresses of Holders.

 

Every Holder of Securities, by receiving and holding the same, agrees with the Issuer, the Guarantors, the Trustee and the Security Registrar that none of the Issuer, the Guarantors, the Trustee or the Security Registrar, or any agent of any of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with TIA Section 312, regardless of the source from which such information was derived, and that none of the Trustee or the Security Registrar shall be held accountable by reason of mailing any material pursuant to a request made under TIA Section 312(b).

 

SECTION 7.02 Reports by Trustee.

 

(a)   Within 60 days after May 15 of each year commencing with the first May 15 after the first issuance of Securities pursuant to this Indenture, the Trustee shall transmit a brief report by mail to the Holders of Securities, in accordance with and solely to the extent required by Section 313 of the TIA.

 

(b)   A copy of each such report at the time of its mailing to Holders shall be filed with the Commission and each stock exchange on which Securities of any series are listed.

 

SECTION 7.03 Reports by the Company.

 

(a)   The Company covenants and agrees to provide to the Trustee:

 

(i)   within 140 days after the end of the fiscal year, the information required to be contained in reports on Form 40-F or Form 20-F, as applicable, or any successor form, provided, however, that neither management’s report on internal control over financial reporting required by Section 13a-15(c) of the Exchange Act nor the annual disclosure of changes in internal control over financial reporting required by Section 13a-15(d) of the Exchange Act for foreign private issuers (which, for the avoidance of doubt, shall include the associated certifications of the principal executive and financial officers required by Sections 302 and 906 of the Sarbanes-Oxley Act of 2002) shall be required to be included until the Company’s second annual report on Form 40-F or Form 20-F, as applicable, filed with the Commission; and

 

(ii)   within 65 days after the end of each of the first three fiscal quarters of each fiscal year, the information required to be contained in reports on Form 6-K (or any successor form), containing the information which, regardless of applicable requirements shall, at a minimum, contain such information required to be provided in quarterly reports under the laws of Nova Scotia, including applicable securities laws and the rules of the Toronto Stock Exchange or any province thereof to security holders of a corporation with securities listed on the Toronto Stock Exchange, whether or not the Company has any of its securities listed on such exchange.

 

(b)   For the avoidance of doubt, none of the above reporting requirements shall be construed to require such statements or reports that would not otherwise be required to be filed by foreign private issuers subject to the Multi-Jurisdictional Disclosure System. Each such report, to the extent permitted by the rules and regulations of the Commission, will be prepared in accordance with Canadian disclosure requirements, provided, however, that the Company shall not be obligated to file such reports with the Commission if the Commission does not permit such filings.

 

(c)   Nothing herein shall be construed to require the registered public accounting firm that prepares or issues the audit report for the Company to attest to, and report on, the assessment made by the management of the Company pursuant to the requirements of Section 404(b) of the Sarbanes-Oxley Act of 2002, unless otherwise required by the Exchange Act.

 

(d)   For so long as any Securities of any series remain outstanding and are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Issuer and the Guarantors will, at any time when they are not subject to Section 13 or 15(d) of the Exchange Act nor exempt from reporting under Rule 12g3-2(b), upon the request of a Holder of such Securities, promptly furnish or cause to be furnished the information specified under Rule 144A(d)(4) of the Securities Act to such holder, or to a prospective purchaser of such Security designed by such Holder, in order to permit compliance with Rule 144A under the Securities Act.

 

SECTION 7.04 The Company to Furnish Trustee Names and Addresses of Holders.

 

The Company will furnish or cause to be furnished to the Trustee:

 

(1)   semi-annually, not later than 15 days after the Regular Record Date for interest for each series of Securities, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Registered Securities of such series as of such Regular Record Date, or if there is no Regular Record Date for interest for such series of Securities, semi-annually, upon such dates as are set forth in the Board Resolution, Officers’ Certificate or indenture supplemental hereto authorizing such series, and

 

(2)   at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished,

 

provided, however, that so long as the Trustee is the Security Registrar, no such list shall be required to be furnished. If the Trustee shall no longer be the Security Registrar, the Trustee and the Trustee shall be entitled to rely on the most recent such list provided or available to it without liability therefor.

 

ARTICLE Eight
CONSOLIDATION, AMALGAMATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

 

SECTION 8.01 Issuer and Guarantors May Amalgamate or Consolidate, etc., Only on Certain Terms.

 

Neither the Issuer nor the Guarantors shall amalgamate or consolidate with or merge into any other Person or convey, transfer or lease all or substantially all of its assets or properties to any other Person, unless:

 

(1)   in a transaction in which the Issuer or EUSHI, as the case may be, does not survive or continue in existence or in which the Issuer or EUSHI, as the case may be, transfers or leases its properties and assets substantially as an entirety to any other Person, the Person formed by such amalgamation or consolidation or into which the Issuer or EUSHI, as the case may be, is merged or the Person which acquires by conveyance or transfer or otherwise, or which leases, the properties and assets of the Issuer or EUSHI, as the case may be, substantially as an entirety (A) shall be a corporation, partnership or trust organized under the laws of (i) Canada or any province or territory of Canada, (ii) the United States of America, any state thereof or the District of Columbia, (iii) Bermuda, (iv) or The Cayman Islands; provided, however, that if such successor entity is organized under the laws of a jurisdiction other than the United States of America, any state thereof or the District of Columbia, or the laws of Canada or any province or territory thereof, the successor entity shall, pursuant to the supplemental indenture referred to in clause ‎(2) below, expressly become obligated to pay Additional Amounts, substituting the name of such successor jurisdiction (if other than Canada) in each place that Canada appears in Section ‎10.05 of this Indenture and adding references to the provinces, territories, states or other applicable political subdivisions of such successor jurisdiction (if other than Canada) in addition to references to the provinces and territories of Canada appearing in Section ‎10.05 of this Indenture;

 

(2)   Such Person shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the obligations of the Issuer or the Guarantors in respect of the applicable series of Securities and, in the case of a Guarantor, its Guarantee and the performance and observance of every covenant of the Indenture to be performed or observed by the Issuer or a Guarantor, as the case may be;

 

(3)   immediately after giving effect to such transaction, no Event of Default or event that after notice or passage of time or both would be an Event of Default shall have occurred and be continuing; and

 

(4)   the Issuer, the Guarantors or such Person, as the case may be, shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.

 

In the event that the Company shall enter into any amalgamation, consolidation, merger, conveyance, transfer or lease of the nature contemplated by the first paragraph of this Section ‎8.01, then the supplemental indenture contemplated by clause ‎(2) of such paragraph shall be entered into by the Company in its capacity as a Guarantor.

 

SECTION 8.02 Successor Person Substituted.

 

Upon any consolidation or amalgamation by the Issuer or a Guarantor with or merger by the Issuer or a Guarantor into any other Person or any conveyance, transfer or lease of the properties and assets of the Issuer or a Guarantor substantially as an entirety to any other Person in accordance with Section ‎8.01, the successor Person formed by such consolidation or amalgamation or into which the Issuer or Guarantor is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer or Guarantor, as the case may be, under this Indenture with the same effect as if such successor Person had been named as the Issuer or Guarantor, as the case may be, herein, and in the event of any such transaction, the Issuer or Guarantor (which term shall for this purpose mean the applicable Person named as the “Guarantor” in the first paragraph of this Indenture or any successor Person which shall theretofore become such in the manner described in this Section ‎8.02), as the case may be, except in the case of a lease, shall be discharged of all obligations and covenants under this Indenture and the Securities, and the Guarantee, as the case may be, and may be dissolved and liquidated.

 

ARTICLE Nine
SUPPLEMENTAL INDENTURES

 

SECTION 9.01 Supplemental Indentures Without Consent of Holders.

 

Without the consent of any Holders, each of the Issuer and the Guarantors, when authorized by or pursuant to a Board Resolution, the Trustee, at any time and from time to time,

 

may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:

 

(i)   to convey, transfer, assign, mortgage or pledge to the Trustee as security for the Securities of such series any property or assets;

 

(ii)   to evidence the succession of another Person to the Issuer or any Guarantor, or successive successions, and the assumption by the successor Person of the covenants, agreements and obligations of the Issuer or any Guarantor pursuant to Section ‎8.01 or ‎8.02;

 

(iii)   to add to the covenants of the Issuer or the Guarantors such further covenants, restrictions, conditions or provisions as the Issuer or the Guarantors and the Trustee shall consider to be for the protection of the Holders of Securities of such series, to surrender any right or power herein conferred upon the Issuer or the Guarantors, and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions, conditions or provisions an Event of Default with respect to such series of Securities permitting the enforcement of all or any of the several remedies provided in this Indenture, provided that in respect of any such additional covenant, restriction, condition or provision such amendment or supplement may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such an Event of Default or may limit the remedies available to the Trustee upon such an Event of Default or may limit the right of the Holders of a majority in aggregate principal amount of the Securities of such series to waive such an Event of Default;

 

(iv)   to cure any ambiguity or omission or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture, or to make any other provisions as the Issuer or the Guarantors deem necessary or desirable, provided that no such action shall adversely affect the interests of the Holders of the Securities of such series;

 

(v)   to provide for uncertificated Securities of such series in addition to or in place of certificated Securities of such series;

 

(vi)   to provide for the issuance of Exchange Securities of such series and related Guarantees or additional Securities and related Guarantees in accordance with this Indenture;

 

(vii)   to effect or maintain, or otherwise comply with the requirements of the SEC in connection with, the qualification of this Indenture under the Trust Indenture Act;

 

(viii)   Reserved;

 

(ix)   to effect any provision of this Indenture;

 

(x)   to establish the form or terms of securities of any series and related Guarantee as permitted by Sections ‎2.01 and ‎3.01;

 

(xi)   to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section ‎6.10; or

 

(xii)   to make any other change that does not adversely affect the rights of any Holder.

 

Upon the request of the Issuer and the Guarantors and upon receipt by the Trustee of the documents described in Section ‎9.02, the Trustee shall join with the Issuer and the Guarantors in the execution of any supplemental indenture entered into effect any such amendment, supplement or waiver.

 

SECTION 9.02 Supplemental Indentures with Consent of Holders.

 

With the consent of the Holders of not less than a majority in principal amount of all Outstanding Securities of all series affected by such supplemental indenture (voting as a single class), by Act of said Holders delivered to the Issuer, the Guarantors and the Trustee, the Issuer and the Guarantors, when authorized by or pursuant to a Board Resolution, the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture which affect such series of Securities or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security of such series affected thereby,

 

(1)   extend the Stated Maturity of the principal of any of the Securities of such series;

 

(2)   reduce the principal amount of any of the Securities of such series;

 

(3)   reduce the rate or extend the time of payment of interest, including default interest, on any of the Securities of such series;

 

(4)   reduce any amount payable on redemption of any of the Securities of such series;

 

(5)   change the currency in which the principal of or premium, if any, or interest on any of the Securities of such series is payable;

 

(6)   impair the right to institute suit for the enforcement of any payment of principal of or premium, if any, or interest on any Security of such series pursuant to Sections ‎5.08 and Section ‎5.10 except as limited by Section ‎5.07;

 

(7)   make any change in the percentage of principal amount of the Securities of such series necessary to waive compliance with or to modify certain provisions of this Indenture pursuant to Section ‎5.13 or ‎5.08 or this clause of this Section ‎9.02; or

 

(8)   waive a continuing Default or Event of Default in the payment of principal of or premium, if any, or interest on the Securities of such series.

 

Any such supplemental indenture adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture, or modifying in any manner the rights of the Holders of Securities of such series, shall not affect the rights under this Indenture of the Holders of Securities of any other series.

 

It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.

 

SECTION 9.03 Execution of Supplemental Indentures; Effect of Supplemental Indentures.

 

(a)   In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.

 

(b)   Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.

 

SECTION 9.04 Conformity with Trust Indenture Act.

 

Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.

 

SECTION 9.05 Reference in Securities to Supplemental Indentures.

 

Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall bear a notation as to any matter provided for in such supplemental indenture. If the Issuer or the Guarantors shall so determine, new Securities of any series and the Guarantees endorsed thereon so modified as to conform, in the opinion of the Issuer and the Guarantors, to any such supplemental indenture may be prepared and executed by the Issuer and the Guarantors and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.

 

SECTION 9.06 Notice of Supplemental Indentures.

 

Promptly after the execution by the Issuer, the Guarantors and the Trustee of any supplemental indenture pursuant to the provisions of Section ‎9.02, the Issuer shall give notice thereof to the Holders of each Outstanding Security affected, in the manner provided for in Section ‎1.06, setting forth in general terms the substance of such supplemental indenture.

 

SECTION 9.07 Subordination Unimpaired.

 

No supplemental indenture entered into under this Article Nine shall modify, directly or indirectly, the provisions of Article Twelve or the definition of Senior Indebtedness in Section 1.01 in any manner that might alter or impair the subordination of the Securities with respect to Senior Indebtedness then outstanding unless each holder of such Senior Indebtedness has consented thereto in writing.

 

ARTICLE Ten
COVENANTS

 

SECTION 10.01 Payment of Principal, Premium, if any, and Interest.

 

The Issuer covenants and agrees for the benefit of the Holders of each series of Securities that it will duly and punctually pay the principal of (and premium, if any) and interest, if any, on the Securities of that series in accordance with the terms of the Securities and this Indenture.

 

SECTION 10.02 Maintenance of Office or Agency.

 

The Issuer will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange, where Securities of that series that are convertible or exchangeable may be surrendered for conversion or exchange, as applicable and where notices and demands to or upon the Issuer in respect of the Securities of that series and this Indenture may be served. The Company, in its capacity as a Guarantor, will maintain an office or agency in The City of New York where notices and demands to or upon the Guarantors in respect of the Securities of that series and this Indenture may be served.

 

The Issuer and the Guarantors will give prompt written notice to the Trustee of the location, and any change in the location, of any such office or agency. If at any time the Issuer or the Guarantors shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office, and each of the Issuer and the Guarantors hereby appoints the same as its agents to receive such respective presentations, surrenders, notices and demands.

 

The Issuer may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind any such designation; provided, however, that no such designation or rescission shall in any manner relieve the Issuer of its obligation to maintain an office or agency in accordance with the requirements set forth above for Securities of any

 

series for such purposes. The Issuer will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. Unless otherwise specified with respect to any Securities as contemplated by Section ‎3.01 with respect to a series of Securities, the Issuer hereby designates as a Place of Payment for each series of Securities the office or agency of the Trustee in the State of New York, City of New York, Borough of Brooklyn, and initially appoints the Trustee at its Corporate Trust Office as Paying Agent in such cities and as its agent to receive all such presentations, surrenders, notices and demands.

 

Unless otherwise specified with respect to any Securities pursuant to Section ‎3.01, if and so long as the Securities of any series (i) are denominated in a Currency other than Dollars or (ii) may be payable in a Currency other than Dollars, or so long as it is required under any other provision of the Indenture, then the Issuer will maintain with respect to each such series of Securities, or as so required, at least one Exchange Rate Agent.

 

SECTION 10.03 Money for Securities Payments to Be Held in Trust.

 

If either the Issuer or a Guarantor shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of (or premium, if any) or interest, if any, on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in the Currency in which the Securities of such series are payable (except as may otherwise be specified pursuant to Section ‎3.01 for the Securities of such series and except, if applicable, as provided in Sections ‎3.12(b), ‎3.12(d) and ‎3.12(e)) sufficient to pay the principal of (or premium, if any) or interest, if any, on Securities of such series so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.

 

Whenever the Issuer shall have one or more Paying Agents for any series of Securities, it will, prior to or on each due date of the principal of (or premium, if any) or interest, if any, on any Securities of that series, deposit with a Paying Agent a sum (in the Currency described in the preceding paragraph) sufficient to pay the principal (or premium, if any) or interest, if any, so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Issuer will promptly notify the Trustee of its action or failure so to act.

 

The Issuer will cause the bank through which payment of funds to the Paying Agent will be made to deliver to the Paying Agent by 10:00 a.m. (New York Time) two Business Days prior to the due date of such payment an irrevocable confirmation (by tested telex or authenticated Swift MT 100 Message) of its intention to make such payment.

 

The Issuer will cause each Paying Agent (other than the Trustee) for any series of Securities to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will:

 

(1)   hold all sums held by it for the payment of the principal of (and premium, if any) and interest, if any, on Securities of such series in trust for the benefit of the

 

Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;

 

(2)   give the Trustee notice of any default by the Issuer (or any other obligor upon the Securities of such series) in the making of any payment of principal of (or premium, if any) or interest, if any, on the Securities of such series; and

 

(3)   at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.

 

The Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Issuer or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which sums were held by the Issuer or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such sums.

 

Except as provided in the Securities of any series, any money deposited with the Trustee or any other Paying Agent, or then held by the Issuer or the Guarantors, in trust for the payment of the principal of (or premium, if any) or interest, if any, on any Security of any series and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Issuer or the Guarantors, or (if then held by the Issuer or Guarantors) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Issuer or the Guarantors, as the case may be, for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer or the Guarantors, as the case may be, as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the written direction and at the expense of the Issuer cause to be published once, in an Authorized Newspaper, or cause to be mailed to such Holder or both, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication or mailing, any unclaimed balance of such money then remaining will be repaid to the Issuer or Guarantor, as the case may be.

 

SECTION 10.04 Statement as to Compliance.

 

The Issuer and the Guarantors will deliver to the Trustee, within 120 days after the end of each fiscal year (which as of the date hereof ends on the 31st day of December), a brief certificate from the principal executive officer, principal financial officer or principal accounting officer as to his or her knowledge of the Issuer’s or Guarantor’s compliance with all conditions and covenants under this Indenture and as to any default in such performance. For purposes of this Section ‎10.04, such compliance shall be determined without regard to any period of grace or requirement of notice under this Indenture.

 

SECTION 10.05 Additional Amounts.

 

Unless otherwise specified pursuant to Section ‎3.01 with respect to the Securities of any series, all payments made by or on behalf of the Issuer under or with respect to the Securities or any of the Guarantors under or with respect to the Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge imposed or levied by or on behalf of the Government of Canada or any province or territory thereof or by any authority or agency therein or thereof having power to tax (hereinafter “Canadian Taxes”), unless the Issuer or any Guarantor, as the case may be, is required to withhold or deduct Canadian Taxes by law or by the interpretation or administration thereof.

 

If the Issuer or a Guarantor, as the case may be, is so required to withhold or deduct any amount for or on account of Canadian Taxes from any payment made under or with respect to the Securities or the Guarantee, the Issuer or the Guarantor, as the case may be, will pay to each Holder of such Securities as additional interest such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each such Holder after such withholding or deduction (and after deducting any Canadian Taxes on such Additional Amounts) will not be less than the amount such Holder would have received if such Canadian Taxes had not been withheld or deducted, except as described in this Section ‎10.05. However, no Additional Amounts will be payable with respect to a payment made to a recipient or beneficial owner of such payment:

 

(1)   with which the Issuer or a Guarantor, as the case may be, does not deal at arm’s length (within the meaning of the Income Tax Act (Canada) (the “Tax Act”)) at the time of making such payment;

 

(2)   which is subject to such Canadian Taxes by reason of the recipient or beneficial owner being a “specified non-resident shareholder” of the Company for purposes of the Tax Act or a non-resident person not dealing at arm’s length with a “specified shareholder” (within the meaning of subsection 18(5) of the Tax Act) of the Company;

 

(3)   which is subject to such Canadian Taxes by reason of the recipient or beneficial owner being an entity in respect of which the Company is a “specified entity” as defined in legislative proposals to amend the Tax Act as tabled in Parliament as Bill C-59 on November 30, 2023 with respect to “hybrid mismatch arrangements”;

 

(4)   which is liable to such Canadian Taxes by reason of the recipient or beneficial owner being a resident, domicile or national of, or engaged in business or maintaining a permanent establishment or other physical presence in or otherwise having some connection with Canada or any province or territory thereof otherwise than by the mere holding of Securities or the receipt of payments thereunder;

 

(5)   which is subject to such Canadian Taxes by reason of the failure of the recipient or beneficial owner to comply with any certification, identification, documentation or other reporting requirements if compliance is required by law, regulation, administrative practice or an applicable treaty as a precondition to exemption from, or a reduction in the rate of deduction or withholding of, such Canadian Taxes;

 

(6)   which is subject to such Canadian Taxes by reason of the legal nature of the recipient or beneficial owner disentitling such recipient or beneficial owner to the benefit of an applicable treaty if and to the extent that the application of such treaty would have resulted in the reduction or elimination of any Canadian Taxes as to which Additional Amounts would have otherwise been payable to a Holder on behalf of such beneficial owner;

 

(7)   which failed to duly and timely comply with a timely request by the Issuer or a Guarantor, as the case may be, to provide information, documents, certification or other evidence concerning such recipient or beneficial owner’s nationality, residence, entitlement to treaty benefits, identity or connection with Canada or any political subdivision or authority thereof, if and to the extent that due and timely compliance with such request would have resulted in the reduction or elimination of any Canadian Taxes as to which Additional Amounts would have otherwise been payable to a recipient or beneficial owner but for this clause;

 

(8)   which is a fiduciary, limited liability company, partnership or any person other than the sole beneficial owner, to the extent that, any beneficiary or settlor of such fiduciary, any member of such limited liability company, any partner in such partnership or the beneficial owner of such payment (as the case may be) would not have been entitled to receive Additional Amounts with respect to such payment if such beneficiary, settlor, member, partner or beneficial owner had been the recipient of such payment; or

 

(9)   which is subject to such Canadian Taxes by reason of any combination of the above.

 

In addition, no Additional Amounts will be payable on account of:

 

(1)   any tax, assessment or other governmental charge that is imposed otherwise than by withholding by the Issuer or a Guarantor or a paying agent from the payment;

 

(2)   any tax, assessment or other governmental charge that would not have been imposed but for a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;

 

(3)   any estate, inheritance, gift, sales, excise, transfer, wealth, capital gains or personal property tax or similar tax, assessment or other governmental charge;

 

(4)   any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on the Securities of any Series, if such payment can be made without such withholding by at least one other paying agent;

 

(5)   any tax, assessment or other governmental charge that would not have been imposed but for the presentation by the Holder, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and

 

payable or the date on which payment thereof is duly provided for, whichever occurs later;

 

(6)   any tax, assessment or other governmental charge imposed under any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986; or

 

(7)   any combination of any of the foregoing exceptions.

 

Notwithstanding the foregoing, the Issuer or a Guarantor, as the case may be, will indemnify and hold harmless the recipient of any payment made under the Securities or any Guarantee for the amount of any taxes under Regulation 803 of the Tax Act or any similar or successor provision (other than taxes in respect of which no Additional Amounts would be payable or taxes arising by reason of a transfer of a Security to a person resident in Canada with whom the transferor does not deal at arm’s length for the purposes of the Tax Act except where such non-arm’s length relationship arises as a result of the exercise or enforcement of rights under any Securities or any Guarantee) levied or imposed on and paid by such recipient as a result of such payment.

 

The Issuer or a Guarantor, as applicable, will also:

 

(i)   make such withholding or deduction; and

 

(ii)   remit the full amount deducted or withheld to the relevant authority in accordance with applicable law.

 

The Issuer or a Guarantor, as applicable, will furnish to the Holders of the affected series of Securities, within 60 days after the date the payment of any Canadian Taxes is due pursuant to applicable law, certified copies of tax receipts or other documents evidencing such payment by the Issuer.

 

In the event the Issuer or a Guarantor, as applicable, fails to remit any Canadian Taxes in respect of which Additional Amounts are payable, the Issuer or the Guarantor, as applicable, will indemnify and hold harmless each Holder of the affected series of Securities (other than, for certainty, a recipient not entitled to receive Additional Amounts) and upon written request reimburse each such Holder for the amount, excluding any payment of Additional Amounts by the Issuer or a Guarantor, of:

 

(1)   any Canadian Taxes levied or imposed and paid by such Holder as a result of payments made under or with respect to the affected series of Securities;

 

(2)   any liability (including penalties, interest and expenses) arising therefrom or with respect thereto; and

 

(3)   any Canadian Taxes imposed with respect to any reimbursement under clause (1) or (2) in this paragraph, but excluding any such Canadian Taxes on such Holder’s net income.

 

At least five (5) days prior to each date on which any payment under or with respect to the Securities is due and payable, if the Issuer or a Guarantor, as the case may be, will be obligated to pay Additional Amounts with respect to such payment, the Issuer or the Guarantor, as the case may be, will deliver to the Trustee an Officers’ Certificate stating that such Additional Amounts will be payable and specifying the amounts so payable and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts (upon receipt by the Trustee from the Issuer or a Guarantor, as the case may be, of such Additional Amounts) to Holders on the date on which such payment is due and payable.

 

Wherever in this Indenture, the Securities or the Guarantee there is mentioned, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to a Security or Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.

 

The provisions of this Section ‎10.05 shall survive any termination, defeasance, covenant defeasance or discharge of this Indenture or of any Securities and the repayment, redemption or other retirement of the Securities.

 

SECTION 10.06 Reserved.

 

SECTION 10.07 Reserved.

 

SECTION 10.08 Company Existence.

 

Subject to Article ‎Eight, the Issuer and the Guarantors will do or cause to be done all things necessary to preserve and keep in full force and effect its existence (corporate or other) and the rights (charter and statutory) and franchises of the Issuer or the Guarantors, as the case may be; provided, however, that such Issuer or Guarantor, as the case may be, shall not be required to preserve any such right or franchise if such Issuer or Guarantor, as the case may be, shall determine that the preservation thereof is no longer desirable in the conduct of the business of such Issuer or Guarantor and its Subsidiaries as a whole, as the case may be.

 

SECTION 10.09 Reserved.

 

SECTION 10.10 Waiver of Certain Covenants.

 

The Issuer and the Guarantors may, with respect to any series of Securities, omit in any particular instance to comply with any term, provision or condition which affects such series set forth in Section ‎10.08, inclusive, or, as specified pursuant to Section ‎3.01(19) for Securities of such series, in any covenants added to Article ‎Ten pursuant to Section ‎3.01(19) in connection with Securities of such series, if before the time for such compliance the Holders of at least a majority in principal amount of all Outstanding Securities of such series, by Act of such Holders, waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Issuer and the Guarantors and the duties of the Trustee to Holders of Securities

 

of such series in respect of any such term, provision or condition shall remain in full force and effect.

 

ARTICLE Eleven
REDEMPTION OF SECURITIES

 

SECTION 11.01 Applicability of Article.

 

Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with the terms of such Securities and (except as otherwise specified as contemplated by Section ‎3.01 for Securities of any series) in accordance with this Article.

 

SECTION 11.02 Election to Redeem; Notice to Trustee.

 

The election of the Issuer to redeem any Securities shall be evidenced by or pursuant to a Board Resolution or in another manner specified as contemplated by Section ‎3.01 for such Securities. In case of any redemption at the election of the Issuer, the Issuer shall, at least 30 days prior to the Redemption Date fixed by such Issuer (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount of Securities of such series to be redeemed and shall deliver to the Trustee such documentation and records as shall enable the Trustee to select the Securities to be redeemed pursuant to Section ‎11.03. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Issuer shall furnish the Trustee with an Officers’ Certificate evidencing compliance with such restriction. In the case of any redemption of Securities (a) prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, or (b) pursuant to an election of the Issuer which is subject to a condition, the Issuer shall furnish the Trustee with an Officer’s Certificate evidencing compliance with such restriction or condition.

 

SECTION 11.03 Selection by Trustee of Securities to Be Redeemed.

 

If less than all the Securities of any series are to be redeemed, the particular Securities to be redeemed shall be selected not more than 30 days prior to the Redemption Date from the Outstanding Securities of such series not previously called for redemption (i) in the case of Global Securities, by DTC, and (ii) in the case of Securities in definitive form, by the Trustee pro rata, by lot or in such manner as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions of the principal amount of Securities of such series; provided, however, that no such partial redemption shall reduce the portion of the principal amount of a Security not redeemed to less than the minimum authorized denomination for Securities of such series established pursuant to Section ‎3.01.

 

The Trustee shall promptly notify the Issuer and the Guarantors in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.

 

For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be redeemed.

 

SECTION 11.04 Notice of Redemption.

 

Except as otherwise specified as contemplated by Section 3.01, notice of redemption shall be given in the manner provided for in Section 1.06 not less than 10 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed. Notices of redemption may be conditioned upon the occurrence of one or more subsequent events specified in the notice and established in a Board Resolution and/or supplemental indenture relating to the issuance of the Securities of each series.

 

All notices of redemption shall state:

 

(1)   the Redemption Date,

 

(2)   the Redemption Price and the amount of accrued interest to the Redemption Date payable as provided in Section 11.06, if any,

 

(3)   if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Securities to be redeemed,

 

(4)   in case any Security is to be redeemed in part only, the notice which relates to such Security shall state that on and after the Redemption Date, upon surrender of such Security, the Holder will receive, without charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining unredeemed,

 

(5)   that on the Redemption Date, the Redemption Price and accrued interest, if any, to the Redemption Date payable as provided in Section 11.06 will become due and payable upon each such Security, or the portion thereof, to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,

 

(6)   the Place or Places of Payment where such Securities, if any, maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price and accrued interest, if any,

 

(7)   any condition to such redemption, and as described below, if the redemption is subject to the satisfaction of one or more conditions precedent, each such condition, and that such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied (or waived by the Company in its sole discretion) by the Redemption Date, and

 

(8)   the CUSIP number, if any, relating to such Securities.

 

Notice of redemption of Securities to be redeemed at the election of the Issuer shall be given by the Issuer or, at the Issuer’s request, by the Trustee in the name of, and at the expense of the Issuer (and such notice shall be prepared by the Issuer).

 

Notice of any redemption of Securities may, at the Company’s discretion, be given subject to one or more conditions precedent, including, but not limited to, completion of a corporate transaction that is pending (such as an equity or equity-linked offering, an incurrence of indebtedness or an acquisition or other strategic transaction involving a change of control in the Company or another entity). If such redemption is so subject to satisfaction of one or more conditions precedent, such notice shall describe each such condition, and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied or otherwise waived by the relevant Redemption Date.

 

Notice of redemption of Securities to be redeemed at the election of the Issuer shall be given by the Issuer or, at the Issuer’s request, by the Trustee in the name of, and at the expense of the Issuer (and such notice shall be prepared by the Issuer).

 

SECTION 11.05 Deposit of Redemption Price.

 

Prior to any Redemption Date, the Issuer shall deposit or cause to be deposited with the Trustee or another Paying Agent (or, if the Issuer is acting as its own Paying Agent, segregate and hold in trust as provided in Section ‎10.03) an amount of money in the Currency in which the Securities of such series are payable (except, if applicable, as otherwise specified pursuant to Section ‎3.01 for the Securities of such series and except, if applicable, as provided in Sections ‎3.12(b), ‎3.12(d), and ‎3.12(e)) sufficient to pay the Redemption Price of, and accrued interest, if any, on, all the Securities which are to be redeemed on that date.

 

SECTION 11.06 Securities Payable on Redemption Date.

 

Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall (provided any conditions specified in such notice of redemption shall have been satisfied or waived), on the Redemption Date, become due and payable at the Redemption Price therein specified in the Currency in which the Securities of such series are payable (except, if applicable, as otherwise specified pursuant to Section ‎3.01 for the Securities of such series and except, if applicable, as provided in Sections ‎3.12(b), ‎3.12(d), and ‎3.12(e)) (together with accrued interest, if any, to the Redemption Date), and from and after such date (unless the Issuer shall default in the payment of the Redemption Price and accrued interest, if any) such Securities shall, if the same were interest-bearing, cease to bear interest, except to the extent provided below, and shall be void. Upon surrender of any such Security for redemption in accordance with said notice maturing after the Redemption Date, such Security shall be paid by the Issuer at the Redemption Price, together with accrued interest, if any, to the Redemption Date (provided any conditions specified in such notice of redemption shall have been satisfied or waived); provided, however, that unless otherwise specified as contemplated by Section ‎3.01, installments of interest on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant record dates according to their terms and the provisions of Section ‎3.07.

 

If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) set forth in such Security.

 

SECTION 11.07 Securities Redeemed in Part.

 

Any Security which is to be redeemed only in part (pursuant to the provisions of this Article) shall be surrendered at a Place of Payment therefor (with, if the Issuer or Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and the Issuer shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series, each, having endorsed thereon a Guarantee executed by the Guarantors, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.

 

ARTICLE Twelve
SUBORDINATION OF SECURITIES

 

SECTION 12.01 Subordination Terms.

 

The payment by the Issuer or the Guarantors, as applicable, of the principal of (and premium, if any), interest, on any Securities issued hereunder or the Guarantees, shall be subordinated to the extent set forth in an indenture supplemental hereto relating to such Securities or Guarantees, as applicable.

 

SECTION 12.02 Notice to Trustee of Facts Prohibiting Payments.

 

Notwithstanding any of the provisions of this Article Twelve or any other provision of this Indenture, the Trustee shall not at any time be charged with knowledge of the existence of any facts that would prohibit the making of any payment of funds to or by the Trustee unless and until a Responsible Officer of the Trustee shall have received at the Corporate Trust Office written notice thereof from the Issuer or from one or more holders of Senior Indebtedness or from any trustee therefor who shall have been certified by the Issuer or otherwise established to the reasonable satisfaction of the Trustee to be such a holder or trustee; and, prior to the receipt of such written notice, the Trustee, subject to the provisions of Section 6.01, shall be entitled in all respects to assume that no such facts exist; provided that if prior to the fifth business day preceding the date upon which by the terms hereof any such funds may become payable, or if prior to the third business day preceding the date of the execution of instruments pursuant to Article Four acknowledging satisfaction and discharge of this Indenture, the Trustee shall not have received with respect to such funds the notice provided for in this Section 12.02, then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such moneys and/or apply the same to the purpose for which they were received and shall not be affected by any notice to the contrary that may be received by it on or after such date; provided no such application shall affect the obligations under this Article Twelve of the Persons receiving such moneys from the Trustee.

 

SECTION 12.03 Application by Trustee of Moneys Deposited With It.

 

Anything in this Indenture to the contrary notwithstanding, any deposit of a sum by the Issuer or the Guarantors, as applicable, with the Trustee or any agent (whether or not in trust) for any payment of the principal of (and premium, if any), interest or Guarantees on any Securities shall, except as provided in Section 12.02, be subject to the provisions of Section 12.01.

 

SECTION 12.04 Subrogation.

 

Subject to the payment in full of all Senior Indebtedness, the Holders of the Securities shall be subrogated to the rights of the holders of such Senior Indebtedness to receive payments or distributions of assets of the Issuer or the Guarantors applicable to such Senior Indebtedness until the Securities shall be paid in full, and none of the payments or distributions to the holders of such Senior Indebtedness to which the Holders of the Securities or the Trustee would be entitled except for the provisions of this Article Twelve or of payments over, pursuant to the provisions of this Article Twelve, to the holders of such Senior Indebtedness by the Holders of such Securities or the Trustee shall, as among the Issuer and the Guarantors and their respective creditors other than the holders of such Senior Indebtedness and the Holders of such Securities, be deemed to be a payment by the Company to or on account of such Senior Indebtedness; it being understood that the provisions of this Article Twelve are and are intended solely for the purpose of defining the relative rights of the Holders of such Securities, on the one hand, and the holders of Senior Indebtedness, on the other hand.

 

SECTION 12.05 Right of Trustees to Hold Senior Indebtedness.

 

The Trustee shall be entitled to all of the rights set forth in this Article Twelve in respect of any Senior Indebtedness at any time held by it in its individual capacity to the same extent as any other holder of such Senior Indebtedness, and nothing in this Indenture shall be construed to deprive the Trustee of any of its rights as such holder.

 

SECTION 12.06 Not to Prevent Events of Default.

 

The failure to make a payment pursuant to the terms of the Securities by reason of any provision in this Article Twelve shall not be construed as preventing the occurrence of an Event of Default, if any.

 

SECTION 12.07 Trustee’s Rights to Compensation, Reimbursement of Expenses and Indemnification.

 

Notwithstanding anything to the contrary herein, the Trustee’s rights to compensation, reimbursement of expenses and indemnification under Section 6.07 are not subordinated to the payment of Senior Indebtedness.

 

SECTION 12.08 Article Applicable to Paying Agents.

 

The term “Trustee” as used in this Article Twelve shall (unless the context shall otherwise require) be construed as extending to and including each Paying Agent, Authenticating Agent and Security Registrar appointed by the Issuer or the Trustee, as the case may be, and

 

acting hereunder within its meaning as fully for all intents and purposes as if such Paying Agent or Security Registrar were named in this Article Twelve in addition to the Trustee; provided that Section 12.02 and Section 12.05 shall not apply to the Issuer or any Affiliate of the Issuer if the Issuer or such Affiliate acts as Paying Agent or Security Registrar.

 

SECTION 12.09 Trustee Not Fiduciary for Holders of Senior Indebtedness.

 

The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall not be liable to any such holders if the Trustee shall in good faith mistakenly pay over or distribute to Holders of Securities or to the Issuer or to any other Person cash, property or securities to which any holders of Senior Indebtedness shall be entitled by virtue of this Article Twelve or otherwise. With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or to observe only such of its covenants or obligations as are specifically set forth in this Article Twelve, and no implied covenants or obligations with respect to the holders of Senior Indebtedness shall be read into this Indenture against the Trustee.

 

ARTICLE Thirteen
RESERVED

 

ARTICLE Fourteen
DEFEASANCE AND COVENANT DEFEASANCE

 

SECTION 14.01 Option to Effect Defeasance or Covenant Defeasance.

 

Except as otherwise specified as contemplated by Section ‎3.01 for Securities of any series, the provisions of this Article ‎Fourteen shall apply to each series of Securities, and the Issuer the Guarantors may, at their option, effect defeasance of the Securities of a series under Section ‎14.02, or covenant defeasance of a series under Section ‎14.03 in accordance with the terms of such Securities and in accordance with this Article; provided, however, that, unless otherwise specified pursuant to Section ‎3.01 with respect to the Securities of any series, the Issuer and the Guarantors may effect defeasance or covenant defeasance only with respect to all of the Securities of such series.

 

SECTION 14.02 Defeasance and Discharge.

 

Upon the exercise by the Issuer and the Guarantors of the above option applicable to this Section with respect to any Securities of a series, the Issuer and the Guarantors shall each be deemed to have been discharged from their obligations with respect to such Outstanding Securities on the date the conditions set forth in Section ‎14.04 are satisfied (hereinafter, “defeasance”). For this purpose, such defeasance means that the Issuer and the Guarantors shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Securities and Guarantees, respectively, which shall thereafter be deemed to be “Outstanding” only for the purposes of Section ‎14.05 and the other provisions of this Indenture referred to in (A), (B), (C) and (D) below, and to have satisfied all their other obligations under such Securities and Guarantees, respectively, and this Indenture insofar as such Securities and Guarantees are

 

concerned (and the Trustee, at the expense of the Issuer, shall execute proper instruments prepared by the Issuer acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (A) the rights of Holders of such Outstanding Securities to receive, solely from the trust fund described in Section ‎14.04 and as more fully set forth in such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on such Securities when such payments are due, (B) the Issuer’s, the Trustee’s, and, if applicable, the Guarantors’ obligations with respect to such Securities under Sections ‎1.13, ‎1.14, ‎3.05, ‎3.06, ‎10.02, ‎10.03, ‎10.05 and any other applicable provisions of Article ‎Eleven, (C) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (D) this Article ‎Fourteen. Subject to compliance with this Article ‎Fourteen, the Issuer and the Guarantors may exercise its option under this Section ‎14.02 notwithstanding the prior exercise of the option under Section ‎14.03 with respect to such Securities and any related Guarantees.

 

SECTION 14.03 Covenant Defeasance.

 

Upon the exercise by the Issuer and the Guarantors of the above option applicable to this Section with respect to any Securities of a series, Issuer and the Guarantors shall be released from their obligations under Article ‎Eight and Sections ‎10.06 through ‎10.09, and, if specified pursuant to Section ‎3.01, their obligations under any other covenant, in each case with respect to such Outstanding Securities and the related Guarantees, respectively, on and after the date the conditions set forth in Section ‎14.04 are satisfied (hereinafter, “covenant defeasance”), and such Securities and the related Guarantees shall thereafter be deemed not to be “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such covenant defeasance means that, with respect to such Outstanding Securities and related Guarantees, the Issuer and, the Guarantors may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section ‎5.01(4) or Section ‎5.01(9) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Securities and related Guarantees shall be unaffected thereby.

 

SECTION 14.04 Conditions to Defeasance or Covenant Defeasance.

 

The following shall be the conditions to application of either Section ‎14.02 or Section ‎14.03 to any Outstanding Securities of or within a series:

 

(1)   The Issuer has irrevocably deposited with the Trustee (or a trustee satisfying the requirements of Section ‎6.08 who shall agree to comply with the provisions of this Article ‎Fourteen applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (A) cash (in such Currency in which such Securities are then specified as payable at Stated Maturity), or (B) U.S. Government Obligations applicable to such Securities (determined on the basis of the Currency in

 

which such Securities are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of or premium, if any, or interest, if any, or any other sums due under such Securities, money in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or qualifying trustee) to pay and discharge, (i) the principal of (and premium, if any) and interest, if any, and any other sums due under such Outstanding Securities on the Stated Maturity (or Redemption Date, if applicable) of such principal (and premium, if any) or installment of interest, if any, or any other sums and (ii) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Obligations to said payments with respect to such Securities. Before such a deposit, the Issuer may give to the Trustee, in accordance with Section ‎11.02 hereof, a notice of its election to redeem all or any portion of such Outstanding Securities at a future date in accordance with the terms of the Securities of such series and Article ‎Eleven hereof, which notice shall be irrevocable. Such irrevocable redemption notice, if given, shall be given effect in applying the foregoing.

 

(2)   In the case of an election under Section ‎14.02, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States stating that (x) the Issuer or Guarantors, as the case may be, has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of execution of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the beneficial owners of such Outstanding Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such legal defeasance or covenant defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred.

 

(3)   In the case of an election under Section ‎14.03, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States to the effect that the beneficial owners of such Outstanding Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred.

 

(4)   The Guarantors are not an “insolvent person” within the meaning of the Bankruptcy and Insolvency Act (Canada) and the Issuer is not an “insolvent person” under the relevant legislation in the jurisdiction of the Issuer, in each case, on the date of such deposit or at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).

 

(5)   No Event of Default or event that, with the passing of time or the giving of notice, or both, shall constitute an Event of Default with respect to such Securities shall have occurred and be continuing on the date of such deposit or, insofar as paragraphs ‎(7), (7) and (8) of Section ‎5.01 are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).

 

(6)   Such legal defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Issuer or any Guarantor is a party or by which it is bound.

 

(7)   Notwithstanding any other provisions of this Section, such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations in connection therewith pursuant to Section ‎3.01.

 

(8)   The Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the defeasance under Section ‎14.02 or the covenant defeasance under Section ‎14.03 (as the case may be) have been complied with.

 

SECTION 14.05 Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.

 

Subject to the provisions of the last paragraph of Section ‎10.03, all money and Government Obligations (or other property as may be provided pursuant to Section ‎3.01) (including the proceeds thereof) deposited with the Trustee pursuant to Section ‎14.04 in respect of such Outstanding Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine (other than, with respect only to defeasance pursuant to Section ‎14.02, Issuer or any of its Affiliates), to the Holders of such Securities of all sums due and to become due thereon in respect of principal (and premium, if any) and interest, if any, but such money need not be segregated from other funds except to the extent required by law.

 

Unless otherwise specified with respect to any Security pursuant to Section ‎3.01, if, after a deposit referred to in Section ‎14.04(1) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section ‎3.12(b) or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section ‎14.04(1) has been made in respect of such Security, or (b) a Conversion Event occurs as contemplated in Section ‎3.12(d) or ‎3.12(e) or by the terms of any Security in respect of which the deposit pursuant to Section ‎14.04(1) has been made, the indebtedness represented by such Security shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any) and interest, if any, on such Security as they become due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of

 

such election or Conversion Event based on the applicable Market Exchange Rate for such Currency in effect on the third Business Day prior to each payment date, except, with respect to a Conversion Event, for such Currency in effect (as nearly as feasible) at the time of the Conversion Event.

 

The Issuer and the Guarantors shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section ‎14.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities.

 

Anything in this Article ‎Fourteen to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer or a Guarantor, as the case may be, from time to time upon request of the Issuer or Guarantor any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in Section ‎14.04 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent defeasance or covenant defeasance, as applicable, in accordance with this Article.

 

SECTION 14.06 Reinstatement.

 

If the Trustee or any Paying Agent is unable to apply any money in accordance with Section ‎14.05 by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations of the Issuer and the Guarantors under this Indenture and such Securities shall be revived and reinstated as though no deposit had occurred pursuant to Section ‎14.02 or ‎14.03, as the case may be, until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section ‎14.05; provided, however, that if Issuer makes any payment of principal of (or premium, if any) or interest, if any, on any such Security following the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money held by the Trustee or Paying Agent.

 

ARTICLE Fifteen
GUARANTEE OF GUARANTEED SECURITIES

 

SECTION 15.01 Unconditional Guarantees.

 

(a)   Subject to this Article ‎Fifteen, for value received, the Guarantors hereby, jointly and severally, fully, irrevocably, unconditionally and absolutely guarantee to the Holders and to the Trustee the due and punctual payment of the principal of and premium, if any, and interest on the Securities, the due and punctual payment of any Additional Amounts that may be payable with respect to the Securities and all other amounts due and payable under this Indenture and the Securities by the Issuer (including, without limitation, all costs and expenses (including reasonable legal fees and disbursements) incurred by the Trustee or the Holders in connection with the enforcement of this Indenture, the Securities and the Guarantees) (collectively, the “Indenture Obligations”), when and as such principal, premium, if any, and interest and any Additional Amounts and such other amounts shall become due and payable, whether at the

 

Stated Maturity, upon redemption or by declaration of acceleration or otherwise, according to the terms of the Securities and this Indenture. The guarantees by the Guarantors set forth in this Article ‎Fifteen are referred to herein as the “Guarantees.” Without limiting the generality of the foregoing, the Guarantors’ liability shall extend to all amounts that constitute part of the Indenture Obligations and would be owed by the Issuer under this Indenture and the Securities but for the fact that they are unenforceable, reduced, limited, impaired, suspended or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Issuer. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.

 

(b)   Failing payment when due of any amount guaranteed pursuant to the Guarantees, for whatever reason, the Guarantors will be, jointly and severally, obligated to pay the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise), except as would otherwise be available to the Issuer. The Guarantees are intended to be general, unsecured, senior obligations of each Guarantor and to rank pari passu in right of payment with all indebtedness of such Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantees of such Guarantor. Each Guarantor hereby agrees that its obligations hereunder shall be full, irrevocable, unconditional and absolute, irrespective of the validity, regularity or enforceability of the obligations and liabilities of any other obligor with respect to the Securities, the Guarantees or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof with respect to the same, the recovery of any judgment against the Issuer, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of such Guarantor.

 

Each Guarantor hereby agrees that in the event of a default in payment of the principal of or premium, if any, or interest on the Securities of any series or any Additional Amounts or any other amounts payable under this Indenture and such Securities by the Issuer, whether at the Stated Maturity, upon redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section ‎5.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against any Guarantor to enforce the Guarantees of such series without first proceeding against the Issuer.

 

(c)   To the fullest extent permitted by applicable law, the obligations of a Guarantor under this Article ‎Fifteen shall be as aforesaid full, irrevocable, unconditional and absolute and shall not be impaired, modified, discharged, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of any other obligor with respect to the Securities contained in any of the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Issuer or any of its estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, or other statute or from the decision of any court, (iii) the assertion or exercise by the Issuer, the Guarantors or the Trustee of any rights or remedies under any of the Securities or this Indenture or its delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for any of the Securities, including all or any part of the rights of the Company or the Guarantors under this Indenture, (v) the extension of

 

the time for payment by the Issuer or the Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of any of the Securities or this Indenture or of the time for performance by the Issuer or the Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation set forth in this Indenture of any other obligor with respect to the Securities, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Issuer or any of its assets, or the disaffirmance of any of the Securities, the Guarantees or this Indenture in any such proceeding, (viii) the release or discharge of the Issuer or the Guarantors from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of any of the obligations of any of the other obligors under the Securities, the Guarantees or this Indenture, (x) any change in the name, business, capital structure, corporate or comparable existence, or ownership of the Issuer or the Guarantors, or (x) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, a surety or the Guarantors.

 

(d)   Each Guarantor hereby (i) waives diligence, presentment, demand of payment, notice of acceptance, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Issuer and all demands and notices whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantees may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantees without notice to them and (iii) covenants that its Guarantees will not be discharged except by complete performance of the Guarantees or of the obligations guaranteed thereby. Each Guarantor further agrees that if at any time all or any part of any payment theretofore applied by any Person to the Guarantees is, or must be, rescinded or returned for any reason whatsoever, including, without limitation, the reorganization of such Guarantor, the Guarantees shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantees shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.

 

(e)   (i) Each Guarantor shall be subrogated to all rights of the Holders and the Trustee against the Issuer in respect of any amounts paid by such Guarantor pursuant to the provisions of this Indenture; provided, however, that such Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation with respect to any of the Securities until all of the Securities and the Guarantees thereof shall have been paid in full or discharged.

 

(ii)   Each Guarantor and, by its acceptance of Securities of any series, each Holder of such series of Securities hereby confirm that it is the intention of all such parties that the Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, Canadian, provincial or state law to the extent applicable to any Guarantee. To effectuate the foregoing intention, the

 

Trustee, the Holders of such series and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount which, after giving effect to all other contingent and fixed liabilities of such Guarantor, and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Guarantee or pursuant to its contribution obligations under this Article ‎Fifteen, will result in the obligations of such Guarantor under its Guarantee not constituting a fraudulent conveyance or fraudulent transfer under federal, Canadian, provincial or state law. Until such time as the Securities of such series are paid in full, each Guarantor hereby waives all rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under applicable Bankruptcy Law) or otherwise by reason of any payment by it pursuant to the provisions of this Article ‎Fifteen. Each Guarantor that makes a payment or distribution under its Guarantee will be entitled to seek contribution from each other Guarantor in a pro rata amount based on the net assets of each Guarantor determined in accordance with GAAP at the time of such payment or distribution, or as otherwise agreed to between the Guarantors, so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.

 

(f)   No failure to exercise and no delay in exercising, on the part of the Trustee or the Holders, any right, power, privilege or remedy under this Article ‎Fifteen and the Guarantees shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies provided in law or equity. Nothing contained in this Article ‎Fifteen shall limit the right of the Trustee or the Holders to take any action to accelerate the Maturity of the Securities of either series pursuant to Article ‎Five or to pursue any rights or remedies hereunder or under applicable law.

 

(g)   Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that its Guarantee and waivers pursuant to its Guarantee are knowingly made in contemplation of such benefits.

 

SECTION 15.02 Execution and Delivery of Notation of Guarantees.

 

To further evidence the Guarantees, each Guarantor hereby agrees that a notation of such Guarantee may be endorsed on each Security authenticated and delivered by the Trustee and that such notation shall be executed by either manual or facsimile signature of an Officer of such Guarantor. Each Guarantor hereby agrees that its Guarantees shall remain in full force and effect notwithstanding any failure to endorse on each Security a notation of the Guarantee.

 

If an Officer of a Guarantor whose signature is on this Indenture or a Security no longer holds that office at the time the Trustee authenticates such Security or at any time thereafter, such Guarantor’s guarantee of such Security shall be valid nevertheless.

 

The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantees set forth in this Indenture on behalf of the Guarantors.

 

ARTICLE Sixteen
MISCELLANEOUS PROVISIONS

 

SECTION 16.01 Certain Provisions Concerning the Payment of Interest.

 

In the event that any provision of this Indenture would oblige the Issuer or any Guarantor to make any payment of interest or any other payment which is construed by a court of competent jurisdiction to be interest in an amount or calculated at a rate which would be prohibited by law or would result in a receipt by the Trustee or the Holders, of interest at a criminal rate (as such terms are construed under the Criminal Code (Canada) or any other applicable statute), then notwithstanding such provision, such amount or rate shall be deemed to have been adjusted to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by law or so result in a receipt by the Trustee or the Holders, or any of them, of interest at a criminal rate.

 

Whenever interest is calculated, pursuant to any provision of this Indenture, on the basis of a period other than a calendar year, the annual rate of interest to which such rate of interest as determined by such calculation is equivalent, for purposes of the Interest Act (Canada), is such rate as so calculated multiplied by a fraction, the numerator of which is the actual number of days in the particular calendar year in respect of which the calculation is made, and the denominator of which is the number of days used in the calculation.

 

SECTION 16.02 Execution in Counterparts.

 

This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be their original signatures for all purposes.

 

IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the day and year first above written.

 

	EUSHI FINANCE, INC., as Issuer
	By:	/s/ Brian C. Curry
		Name: Brian C. Curry
		Title: Corporate Secretary

 

	By:	/s/ Gregory W. Blunden
		Name: Gregory W. Blunden
		Title: Director

 

	EMERA INCORPORATED, as Guarantor
	By:	/s/ Brian C. Curry
		Name: Brian C. Curry
		Title: Corporate Secretary

 

	By:	/s/ Gregory W. Blunden
		Name: Gregory W. Blunden
		Title: Chief Financial Officer

 

	EMERA US HOLDINGS INC., as Guarantor
	By:	/s/ Brian C. Curry
		Name: Brian C. Curry
		Title: Corporate Secretary

 

	By:	/s/ Gregory W. Blunden
		Name: Gregory W. Blunden
		Title: Chief Financial Officer

 

	EQUINITI TRUST COMPANY, LLC, as Trustee
	By:	/s/ Paul H. Kim
		Name: Paul H. Kim
		Title: Assistant General Counsel

 

 

[Indenture Signature Page]

 

EXHIBIT A

RESERVED

 

EXHIBIT B

FORMS OF CERTIFICATION

 

EXHIBIT B-1
FORM OF CERTIFICATE TO BE DELIVERED IN
CONNECTION WITH TRANSFERS FROM RESTRICTED
GLOBAL SECURITY TO REGULATION S GLOBAL SECURITY

 

[date]

 

EQUINITI TRUST COMPANY, LLC
[ADDRESS]
Attention: Emera Incorporated

 

Re:

EUSHI FINANCE, INC. (the “Issuer”) —% Fixed-to-Fixed Reset Rate Junior Subordinated Notes due — (the “Securities”)

 

Ladies and Gentlemen:

 

This letter relates to $ principal amount of Securities which are evidenced by the Restricted Global Security (CUSIP No. [       ]) and held with the Depositary in the name of Cede & Co. and held for the benefit of ________________ (the beneficial owner) (the “Transferor”). The Transferor has requested a transfer of such beneficial interest in the Securities to a Person who will take delivery thereof in the form of an equal principal amount of Securities evidenced by the Regulation S Global Security (CUSIP No. [                     ]).

 

In connection with such request and in respect of such Securities, we hereby certify that such transfer has been effected in compliance with the transfer restrictions applicable to the Global Securities and pursuant to and in accordance with Rule 903, Rule 904 or Rule 144 under the United States Securities Act of 1933, as amended (the “Securities Act”), and accordingly we hereby further certify that:

 

(A)

If the transfer has been effected pursuant to Rule 903 or Rule 904:

 

(1)

the offer of the Securities was not made to a person in the United States;

 

(2)

either (a) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States or (b) the transaction was executed in, on or through the facilities of a designated off-shore securities market and neither we nor any person acting on our behalf knows that the transaction has been pre-arranged with a buyer in the United States;

 

(3)

no directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable; and

 

(4)

the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.

 

(B)

If the transfer has been effected pursuant to Rule 144:

 

(1)

a period of at least one year has elapsed since [ , ];

 

(2)

the Transferor during the 90 days preceding the date of such transfer was not an “affiliate” (as defined in Rule 144 under the Securities Act) of the Issuer, and it is not acting on behalf of such affiliate; and

 

(3)

such Person to whom such transfer is being made is not an “affiliate” of the Issuer.

 

Upon giving effect to this request to exchange a beneficial interest in such Restricted Global Security for a beneficial interest in a Regulation S Global Security, the resulting beneficial interest shall be subject to the restrictions on transfer, if any, applicable to a Regulation S Global Security pursuant to the Indenture and the Securities.

 

You and the Issuer are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S.

 

	Very truly yours,
	[Name of Transferor]
	By:
		Authorized Signature

 

EXHIBIT B-2
FORM OF CERTIFICATE TO BE DELIVERED IN
CONNECTION WITH TRANSFERS FROM REGULATION S
GLOBAL SECURITY TO RESTRICTED GLOBAL SECURITY PRIOR TO ONE YEAR

 

[date]

 

EQUINITI TRUST COMPANY, LLC
[ADDRESS]
Attention: Emera Incorporated

 

Re:

EUSHI FINANCE, INC. (the “Issuer”) —% Fixed-to-Fixed Reset Rate Junior Subordinated Notes due — (the “Securities”)

 

Ladies and Gentlemen:

 

This letter relates to $ principal amount of Securities which are evidenced by the Regulation S Global Security (CUSIP No. [        ]) and held with the Depositary in the name of Cede & Co. and held for the benefit of ________________ (the beneficial owner) (the “Transferor”). The Transferor has requested a transfer of such beneficial interest in the Securities to a Person who will take delivery thereof in the form of an equal principal amount of Securities evidenced by the Restricted Global Security (CUSIP No. [                     ]).

 

In connection with such request and in respect of such Securities, we hereby certify that such transfer has been effected in compliance with the transfer restrictions applicable to Global Securities and pursuant to and in accordance with Rule 144A under the United States Securities Act of 1933, as amended (the “Securities Act”), and accordingly we hereby further certify that the Securities are being transferred to a Person (a) who the Transferor reasonably believes to be a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act purchasing for its own account or the account of a qualified institutional buyer in a transaction meeting the requirements of Rule 144A under the Securities Act; and (b) in accordance with applicable securities laws of the United States and other applicable jurisdictions.

 

Upon giving effect to this request to exchange a beneficial interest in such Regulation S Global Security for a beneficial interest in a Restricted Global Security, the resulting beneficial interest shall be subject to the restrictions on transfer applicable to a Restricted Global Security pursuant to the Indenture and the Securities.

 

You and the Issuer are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in the Indenture, dated as of June 18, 2024, under which the Securities were issued.

 

 

	Very truly yours,
	[Name of Transferor]
	By:
		Authorized Signature

 

EXHIBIT B-3
FORM OF CERTIFICATE FOR TRANSFER OR EXCHANGE AFTER ONE YEAR

 

[date]

 

EQUINITI TRUST COMPANY, LLC
[ADDRESS]
Attention: Emera Incorporated

 

Re:

EUSHI FINANCE, INC. (the “Issuer”) —% Fixed-to-Fixed Reset Rate Junior Subordinated Notes due — (the “Securities”)

 

Ladies and Gentlemen:

 

[For transfers: This letter relates to $ principal amount of Securities which are evidenced by a Regulation S Global Security (CUSIP No. [         ]) and held with the Depositary in the name of Cede & Co. [and held for the benefit of ________________] (the “Beneficial Owner”). The Beneficial Owner has requested that its beneficial interest in such Securities be transferred to a Person that will take delivery thereof in the form of an equal principal amount of Securities evidenced by the Restricted Global Security (CUSIP No.[          ])

 

In connection with such request and in respect of such Securities, the Beneficial Owner does hereby certify that upon such transfer, (a) a period of at least one year will have elapsed since [ ], [ ], (b) the Beneficial Owner during the three months preceding the date of such transfer was not an “affiliate” of the Issuer (as defined in Rule 144 under the Securities Act of 1933, as amended), and it was not acting on behalf of such an affiliate and (c) such Person to whom such transfer is being made is not an “affiliate” of the Issuer.]

 

[For exchanges: This letter relates to $_______ principal amount of Securities that are evidenced by a [Regulation S Global Security (CUSIP No. [           ]) and held with the Depositary in the name of Cede & Co. [and held for the benefit of]] (the “Beneficial Owner”).

 

The Beneficial Owner has requested that its beneficial interest in such Securities be exchanged for a beneficial interest in an equal principal amount of Securities evidenced by the Restricted Global Security (CUSIP No. [         ]).

 

In connection with such request and in respect of such Securities, the Beneficial Owner does hereby certify that, upon such exchange, (a) it will be the beneficial owner of such Securities, (b) a period of at least one year will have elapsed since [         ], [          ] and (c) the Beneficial Owner will not be, and during the three months preceding the date of such exchange will not have been, an “affiliate” of the Issuer (as defined in Rule 144 under the Securities Act of 1933, as amended), and it is not acting on behalf of such an affiliate.]

 

This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.

 

	Very truly yours,
	[Name of Transferor]
	By:
		Name:
		Title:

 

Exhibit 4.3

EUSHI FINANCE, INC.

 

as Issuer

 

EMERA INCORPORATED
EMERA US HOLDINGS INC.

 

as Guarantors

 

EQUINITI TRUST COMPANY, LLC

 

as Trustee

 

 

FIRST SUPPLEMENTAL INDENTURE

 

Dated as of June 18, 2024

 

to

 

Indenture

 

Dated as of June 18, 2024

 

 

Creating one series of Securities designated as
7.625% Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2054

 

TABLE OF CONTENTS

 

Article One INTERPRETATIONS AND AMENDMENTS
Section 101.  First Supplemental Indenture	2
Section 102.  Definitions in First Supplemental Indenture	2
Section 103.  Interpretation not Affected by Headings	2
Article Two DEFINITIONS
Section 201.  Certain Definitions	2
Article Three 7.625% FIXED-TO-FIXED RESET RATE JUNIOR SUBORDINATED NOTES DUE 2054
Section 301.  Form and Terms of the Notes	4
Section 302.  Issuance of the Notes	7
Section 303.  Transfer Restrictions	7
Article Four SUBORDINATION
Section 401.  Notes Subordinated to Senior Indebtedness	7
Section 402.  Disputes with Holders of Certain Senior Indebtedness	8
Section 403.  Subrogation	9
Section 404.  Obligation of the Issuer and the Guarantors Unconditional	9
Section 405.  Payments on the Notes Permitted	10
Section 406.  Effectuation of Subordination by Trustee	10
Section 407.  Rights of Holders of Senior Indebtedness Not Impaired	10
Article Five OPTION TO DEFER INTEREST AND COVENANTS
Section 501.  Option to Defer Interest Payments	10
Section 502.  Covenants	11
Section 503.  Notice	12
Article Six OPTIONAL REDEMPTION
Section 601.  Optional Redemption	12
Section 602.  Redemption Following a Tax Event	12
Section 603.  Redemption Following a Rating Agency Event	12
Section 604.  Payments of Interest	12
Section 605.  Securities Called for Redemption	12
Section 606.  Notice of Redemption	13
Section 607.  Deposit of Redemption Price	13

 

Article Seven GENERAL
Section 701.  Effectiveness	13
Section 702.  Ratification of Original Indenture	13
Section 703.  Governing Law	13
Section 704.  Severability	13
Section 705.  Acceptance of Trust	13
Section 706.  Benefits of First Supplemental Indenture	13
Section 707.  Multiple Originals	13
Section 708.  Agent for Service	14

 

Schedule A - Form of 7.625% Fixed-to-Fixed Reset Rate Junior Subordinated Note due 2054

 

 

THIS FIRST SUPPLEMENTAL INDENTURE (this “First Supplemental Indenture”) dated as of June 18, 2024, by and among EUSHI FINANCE, INC., a corporation duly organized and existing under the laws of the State of Delaware (the “Issuer”), EMERA INCORPORATED, a company duly organized and existing under the laws of the Province of Nova Scotia (the “Company”), EMERA US HOLDINGS INC., a corporation organized and existing under the laws of the State of Delaware (“EUSHI” and, together with the Company in their capacity as guarantors of the Securities, the “Guarantors” and each a “Guarantor”) and EQUINITI TRUST COMPANY, LLC, as Trustee (the “Trustee”).

 

RECITALS

 

WHEREAS, each of the Issuer and the Guarantors has heretofore executed and delivered to the Trustee an Indenture, dated as of June 18, 2024 (the “Original Indenture”), providing for the issuance from time to time of its debentures, notes or other evidences of indebtedness (the “Securities”) in one or more series;

 

WHEREAS, the Original Indenture is incorporated herein by reference and the Original Indenture, as supplemented by this First Supplemental Indenture, is herein called the “Indenture”;

 

WHEREAS, Sections 2.01, 3.01 and 9.01(x) of the Original Indenture provide that the Issuer and the Trustee may from time to time enter into one or more indentures supplemental thereto to establish the form or terms of Securities of a new series issued pursuant to the Indenture;

 

WHEREAS, the Issuer desires to issue one series of Securities under the Indenture to be designated as 7.625% Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2054 (the “Notes”) ;

 

WHEREAS, in accordance with Sections 2.04 and Article Nine of the Original Indenture, each Guarantor shall fully and unconditionally guarantee the Notes (the “Guarantee”);

 

WHEREAS, Section 9.01(xiii) of the Original Indenture permits execution of supplemental indentures without the consent of any Holders to make any change that does not adversely affect the rights of any Holder;

 

WHEREAS, the Issuer has requested that the Trustee execute and deliver this First Supplemental Indenture. The Issuer has delivered to the Trustee an Issuer’s Certificate and an Opinion of Counsel pursuant to Sections 1.02 and 9.03 of the Original Indenture to the effect, among other things, that all conditions precedent provided for in the Original Indenture to the Trustee’s execution and delivery of this First Supplemental Indenture have been complied with. All acts and things necessary have been done and performed to make this First Supplemental Indenture enforceable in accordance with its terms, and the execution and delivery of this First Supplemental Indenture has been duly authorized in all respects;

 

WHEREAS, all things necessary on the part of the Issuer to make this First Supplemental Indenture, when executed by the Issuer, the legal, valid and binding obligation of the Issuer in accordance with the terms hereof, have been done;

 

WHEREAS, all things necessary on the part of the Issuer to make the Notes, when executed by the Issuer, and authenticated and delivered hereunder and duly issued by the Issuer, the legal, valid and binding obligations of the Issuer in accordance with the terms of the Notes and this First Supplemental Indenture, have been done; and

 

WHEREAS, the Issuer, the Guarantors and the initial purchasers named therein have entered into that certain Registration Rights Agreement, dated as of June 18, 2024 (the “Registration Rights Agreement”), providing for (i) the issuance from time to time of Securities issued in exchange for, and in an aggregate principal amount equal to, the Notes (the “Exchange Notes”) containing terms substantially identical to, and evidencing the same indebtedness as, the Notes exchanged therefor (except that such Exchange Notes will be registered under the Securities Act of 1933, as amended (the “Securities Act”)and will not bear any legend to the contrary) and (ii) the payment of any additional amounts of interest that shall become payable in respect of the Notes pursuant to the Registration Rights Agreement as a result of a registration default as described in the Registration Rights Agreement (“Additional Interest”).

 

NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH: For and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Notes, as follows:

 

Article One
INTERPRETATIONS AND AMENDMENTS

 

Section 101. First Supplemental Indenture. As used herein “First Supplemental Indenture”, “hereto”, “herein”, “hereof”, “hereby”, “hereunder” and similar expressions refer to this First Supplemental Indenture and not to any particular Article, Section or other portion hereof and include any and every instrument supplemental or ancillary hereto or in implementation hereof, and further include the terms of the Notes set forth in the forms of Notes annexed as Schedules hereto.

 

Section 102. Definitions in First Supplemental Indenture. All terms contained in this First Supplemental Indenture which are defined in the Original Indenture and not defined herein shall, for all purposes hereof, have the meanings given to such terms in the Original Indenture, unless the context otherwise specifies or requires.

 

Section 103. Interpretation not Affected by Headings. The division of this First Supplemental Indenture into Articles and Sections, the provision of the table of contents hereto and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this First Supplemental Indenture.

 

Article Two
DEFINITIONS

 

Section 201. Certain Definitions. The following additional terms are hereby established for the purposes of this First Supplemental Indenture and shall have the meanings set forth in this First Supplemental Indenture solely for the purposes of this First Supplemental Indenture:

 

“Business Day” means, unless otherwise expressly stated, any day other than (i) a Saturday or Sunday or (ii) a day on which banks and trust companies in The City of New York are authorized or obligated by law, regulation or executive order to remain closed.

 

“compound interest” has the meaning set forth in Section 501.

 

“calculation agent” means, at any time, the entity appointed by the Issuer and serving as such agent with respect to the Notes at such time. Unless the Issuer has validly called all of the outstanding Notes for redemption on a redemption date occurring prior to the First Reset Date, the Issuer will appoint a calculation agent for the Notes prior to the Reset Interest Determination Date immediately preceding the First Reset Date; provided that, if the Issuer has called all of the outstanding Notes for redemption on a redemption date occurring prior to the First Reset Date but the Issuer does not redeem all of the outstanding Notes on such redemption date, the Issuer will appoint a calculation agent for the Notes as promptly as practicable after such proposed redemption date. The Issuer may terminate any such appointment and may appoint a successor calculation agent at any time and from time to time (so long as there shall always be a calculation agent in respect of the Notes when so required). The Issuer may appoint the Company or an affiliate of the Company as calculation agent.

 

“Capital Stock” means (i) in the case of a corporation or a company, corporate stock or shares; (ii) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; (iii) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and (iv) any other interest or participation that confers on a person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing person.

 

“Five-year U.S. Treasury Rate” means, as of any Reset Interest Determination Date, (i) an interest rate (expressed as a decimal) determined to be the per annum rate equal to the arithmetic mean of the yields to maturity

 

for U.S. Treasury securities adjusted to constant maturity with a maturity of five years from the next Reset Date and trading in the public securities markets, for the five consecutive business days immediately prior to the respective Reset Interest Determination Date as published (or, if fewer than five consecutive business days are so published on the applicable Reset Interest Determination Date, for such number of business days published) in the most recent H.15, or (ii) if there is no such published U.S. Treasury security with a maturity of five years from the next Reset Date and trading in the public securities markets, then the rate will be determined by interpolation between the arithmetic mean of the yields to maturity for each of the two series of U.S. Treasury securities adjusted to constant maturity trading in the public securities markets, (A) one maturing as close as possible to, but earlier than, the Reset Date following the next succeeding Reset Interest Determination Date, and (B) the other maturing as close as possible to, but later than, the Reset Date following the next succeeding Reset Interest Determination Date, in each case for the five consecutive business days immediately prior to the respective Reset Interest Determination Date as published in the most recent H.15. If the Five-year U.S. Treasury Rate cannot be determined pursuant to the methods described in clause (i) or (ii) above, then the Five-year U.S. Treasury Rate will be the same interest rate determined for the prior Reset Interest Determination Date or, if the Five-year U.S. Treasury Rate cannot be so determined as of the Reset Interest Determination Date preceding the First Reset Date, then the interest rate applicable for the Reset Period beginning on and including the First Reset Date will be deemed to be 7.625% per annum, which is the same interest rate as in effect from and including the Original Issue Date to but excluding the First Reset Date.

 

“First Reset Date” has the meaning set forth in Section 301.

 

“H.15” means the statistical release designated as such, or any successor publication, published by the Board of Governors of the U.S. Federal Reserve System (or any successor thereto).

 

“interest payment date” has the meaning set forth in Section 301.

 

“Interest Payment Period” means the semi-annual period from and including an interest payment date to but excluding the next succeeding interest payment date, except for the first Interest Payment Period which shall be the period from and including the Original Issue Date to but excluding December 15, 2024.

 

“most recent H.15” means the H.15 published closest in time but prior to the close of business on the second business day prior to the applicable Reset Date.

 

“Optional Deferral Period” has the meaning set forth in Section 501.

 

“Original Issue Date” means June 18, 2024.

 

“record date” has the meaning set for the in Section 301.

 

“redemption date” when used with respect to any Notes to be redeemed, means the date fixed for such redemption pursuant to this First Supplemental Indenture.

 

“Reset Date” means the First Reset Date and December 15 of every fifth year after 2029.

 

“Reset Interest Determination Date” means, in respect of any Reset Period, the day falling two business days prior to the first day of such Reset Period.

 

“Reset Period” means the period from and including the First Reset Date to but excluding the next following Reset Date and thereafter each period from and including a Reset Date to but excluding the next following Reset Date, or the maturity date or date of redemption or repayment, as the case may be.

 

“Rating Agency Event” means, as of any date, a change, clarification or amendment in the methodology published by any nationally recognized statistical rating organization within the meaning of Section 3(a)(62) of the Securities Exchange Act of 1934, as amended (or any successor provision thereto), that then publishes a rating for the Issuer (together with any successor thereto, a “rating agency”) in assigning equity credit to securities such as the

 

Notes, (a) as such methodology was in effect on June 10, 2024, in the case of any rating agency that published a rating for the Issuer as of June 10, 2024, or (b) as such methodology was in effect on the date such rating agency first published a rating for the Issuer, in the case of any rating agency that first publishes a rating for the Issuer after June 10, 2024 (in the case of either clause (a) or (b), the “current methodology”), that results in (i) any shortening of the length of time for which a particular level of equity credit pertaining to the Notes by such rating agency would have been in effect had the current methodology not been changed or (ii) a lower equity credit (including up to a lesser amount) being assigned by such rating agency to the Notes as of the date of such change, clarification or amendment than the equity credit that would have been assigned to the Notes by such rating agency had the current methodology not been changed.

 

“Rights Plan” has the meaning set forth in Section 501.

 

“Tax Event” means that the Issuer has received an opinion of counsel experienced in such matters to the effect that, as a result of:

 

(i)       any amendment to, clarification of, or change, including any announced prospective change, in the laws or treaties of the United States or any of its political subdivisions or taxing authorities, or any regulations under those laws or treaties;

 

(ii)        an administrative action, which means any judicial decision or any official administrative pronouncement, ruling, regulatory procedure, notice or announcement, including any notice or announcement of intent to issue or adopt any administrative pronouncement, ruling, regulatory procedure or regulation;

 

(iii)       any amendment to, clarification of, or change in the official position or the interpretation of any administrative action or judicial decision or any interpretation or pronouncement that provides for a position with respect to an administrative action or judicial decision that differs from the previously generally accepted position, in each case by any legislative body, court, governmental authority or regulatory body, regardless of the time or manner in which that amendment, clarification or change is introduced or made known; or

 

(iv)       a threatened challenge asserted in writing in connection with a tax audit of the Issuer or any of its affiliates or subsidiaries, or a publicly-known threatened challenge asserted in writing against any other taxpayer that has raised capital through the issuance of securities that are substantially similar to the Notes,

 

which amendment, clarification or change is effective or the administrative action is taken or judicial decision, interpretation or pronouncement is issued or threatened challenge is asserted or becomes publicly-known after June 10, 2024, there is more than an insubstantial risk that interest payable by the Issuer on the Notes is not deductible, or within 90 days would not be deductible, in whole or in part, by the Issuer (or a member of the U.S. consolidated group of which the Issuer is a member) for United States federal income tax purposes.

 

Article Three
7.625% FIXED-TO-FIXED RESET RATE JUNIOR SUBORDINATED NOTES DUE 2054

 

Section 301. Form and Terms of the Notes.

 

(a)       There shall be and there is hereby created for issuance under the Original Indenture, as supplemented by this First Supplemental Indenture, a series of Securities which shall be designated the “7.625% Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2054” and shall consist of an aggregate principal amount of US$500,000,000; provided, however, that if the Issuer shall, at any time after the date hereof, increase the principal amount of the Notes which may be issued and issue such increased principal amount (or any portion thereof), then any such additional Notes so issued shall have the same form and terms (other than the issue price, the date of issuance and, under certain circumstances, the date from which interest thereon shall begin to accrue and the first interest payment date), and shall carry the same right to receive accrued and unpaid interest, as the Notes

 

theretofore issued; provided further that, if the additional Notes are not fungible with the then outstanding Notes for U.S. federal income tax purposes, the additional Notes shall have a separate CUSIP and/or ISIN number.

 

(b)       The Notes will mature, and the principal of the Notes and accrued and unpaid interest thereon shall be due and payable, on December 15, 2054 (the “2054 Stated Maturity”), or such earlier date as the principal of any of the Notes may become due and payable in accordance with the provisions of the Original Indenture and this First Supplemental Indenture.

 

(c)       The Notes will bear interest (i) from and including the Original Issue Date to but excluding December 15, 2029 (the “First Reset Date”), at the rate of 7.625% per annum and (ii) from and including the First Reset Date, during each Reset Period at a rate per annum equal to the Five-year U.S. Treasury Rate as of the most recent Reset Interest Determination Date plus a spread of 3.136%, to be reset on each Reset Date. Interest on the Notes will accrue from the Original Issue Date and will be payable semi-annually in arrears on June 15 and December 15 (each, an “interest payment date”) of each year until maturity or earlier redemption, beginning on December 15, 2024, to Holders at the close of business on the record date for the applicable interest payment date, which will be (i) the business day immediately preceding such interest payment date so long as all of the Notes remain in book-entry only form or (ii) the 15th calendar day preceding such interest payment date (whether or not a business day) if any of the Notes do not remain in book-entry only form (each, a “record date”), subject to the Issuer’s right to defer interest payments as described in Article Five below. Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months.

 

The applicable interest rate for each Reset Period will be determined by the calculation agent, as of the applicable Reset Interest Determination Date. Promptly upon such determination, the calculation agent will notify the Issuer of the interest rate for the Reset Period and the Issuer will promptly notify, or cause the calculation agent to promptly notify, in writing, the Trustee and each paying agent of such interest rate. The calculation agent’s determination of any interest rate, and its calculation of the amount of interest for any Interest Payment Period beginning on or after the First Reset Date, will be on file at the Issuer’s principal offices, will be made available to any Holder or beneficial owner of the Notes upon request and will be final and binding in the absence of manifest error.

 

If an interest payment date, redemption date, or maturity date falls on a day that is not a business day, payment will be made on the next succeeding business day with the same force and effect as if made on such payment date.

 

Any such interest on the Notes not so punctually paid or provided for on any Interest Payment Date shall be payable, as applicable, as provided in the form of Note annexed hereto as Schedule A to this First Supplemental Indenture.

 

(d)       Wherever in this First Supplemental Indenture there is mentioned, in any context, the payment of principal (and premium, if any), interest or any other amount payable under or with respect to the Notes, such mention will be deemed to include mention of the payment of Additional Amounts and Additional Interest, in each case to the extent that, in such context, Additional Amounts and/or Additional Interest are, were or would be payable in respect of the Notes.

 

(e)       All payments of principal of, premium, if any, and interest on the Notes will be made in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts, and all references herein to “United States dollars”, “US$” or “U.S. dollars” shall be deemed to refer to such coin or currency of the United States of America.

 

(f)       The principal of, premium, if any, and interest on the Notes shall be payable, and the Notes may be surrendered for exchange, registration, transfer or discharge from registration, at the Corporate Trust Office of the Trustee in The City of New York, New York, and in such other places as the Issuer may from time to time designate in accordance with the Original Indenture. The Trustee is hereby appointed as the initial Paying Agent and Security Registrar for the Notes in The City of New York, New York.

 

(g)       The Notes shall be issued only as registered Global Securities, without coupons, in denominations of US$2,000 and any integral multiples of US$1,000 in excess thereof. The Notes initially will be represented by one or more Restricted Global Notes (as defined below) and Regulation S Global Notes (as defined below) (collectively, the “Global Notes”) registered in the name of The Depository Trust Company, as Depositary or its nominee, or a successor depositary or its nominee.

 

(h)       The Notes offered and sold in reliance on Rule 144A under the Securities Act, shall be initially represented by one or more Global Notes (collectively, the “Restricted Global Notes”). The Restricted Global Notes (and any notes issued in exchange for the Restricted Global Notes, other than Exchange Notes), including beneficial interests in the Restricted Global Notes, will be subject to certain restrictions on transfer set forth therein and in this Indenture and will bear the legend regarding such restrictions set forth in Section 3.14(f)(i)(A) of the Original Indenture.

 

(i)       The Notes offered and sold in reliance on Regulation S under the Securities Act shall be initially represented by one or more temporary Global Notes (collectively, the “Regulation S Temporary Global Notes”) and will be deposited with the Trustee as custodian for the Depositary and registered in the name of the Depositary or its nominee. Following the Resale Restriction Termination Date, beneficial interests in the Regulation S Temporary Global Notes will be exchanged for beneficial interests in permanent Global Notes (the “Regulation S Permanent Global Notes” and, together with the Regulation S Temporary Global Notes, the “Regulation S Global Notes”). The Regulation S Global Notes (and any notes issued in exchange for the Regulation S Global Notes, other than Exchange Notes), including beneficial interests in the Regulation S Global Notes, will be subject to certain restrictions on transfer set forth therein and in this First Supplemental Indenture and will bear the legend regarding such restrictions set forth in Section 3.14(f)(iii) of the Original Indenture.

 

(j)       All Global Notes shall also bear the legends set forth in Section 3.14(f)(ii) of the Original Indenture.

 

(k)       At any time and from time to time after the execution and delivery of this First Supplemental Indenture, the Issuer may deliver Exchange Notes to be issued in exchange for any series of Restricted Global Notes and Regulation S Global Notes, executed by the Issuer for authentication, together with an Issuer Order for the authentication and delivery of such Exchange Notes, and the Trustee in accordance with such Issuer Order shall authenticate and deliver such Exchange Notes.

 

(l)       The Notes and the certificate of authentication of the Trustee endorsed thereon shall be in the form set out in Schedule A to this First Supplemental Indenture with such appropriate insertions, omissions, substitutions and variations as the Trustee may approve and shall be numbered in such manner as the Trustee may approve, such approvals of the Trustee concerning any Note to be conclusively evidenced by its authentication of such Note.

 

(m)       The Security Register referred to in Section 3.05 of the Original Indenture shall, with respect to the Notes, be kept at the office or agency in The City of New York, New York that the Issuer may from time to time designate for such purpose (which shall initially be the Corporate Trust Office of the Trustee in The City of New York, New York), and at such other place or places as the Issuer, with the approval of the Trustee may hereafter designate.

 

(n)       The Notes shall be subject to redemption as provided in Article Six of this First Supplemental Indenture and Article Eleven of the Original Indenture. The Issuer shall not otherwise be required to redeem, purchase or repay the Notes pursuant to any mandatory redemption, sinking fund or analogous provision or at the option of the Holders thereof. The Notes will not be convertible into or exchangeable for securities of any Person.

 

(o)       Sections 14.02 and 14.03 of the Original Indenture shall be applicable to the Notes.

 

(p)       For all purposes of the Indenture, the Notes shall act as a single series (including, but not limited to, for voting, waiver and providing direction and requests), and shall not be subject to class voting provisions, including, but not limited to, in respect of Sections 5.01, 5.02, 5.03, 5.07, 5.12, 5.13, 6.02, 9.02 and 10.10 of the Original Indenture.

 

(q)       The Notes shall have the other terms and provisions set forth in the form of Note attached hereto as Schedule A to this First Supplemental Indenture with the same force and effect as if such terms and provisions were set forth in full herein.

 

Section 302. Issuance of the Notes. The Notes in the aggregate principal amount of US$500,000,000 shall be executed by the requisite authorized officers of the Issuer and delivered by the Issuer to the Trustee on the date of issue for authentication and delivery pursuant to and in accordance with the provisions of Section 3.03 of the Original Indenture and, upon the requirements of such provisions being complied with, the Notes shall be authenticated by or on behalf of the Trustee and delivered by it to or upon the Issuer Order of the Issuer without any further act or formality on the part of the Issuer. The Trustee shall not have any duty or responsibility with respect to the use or application of any of the Notes so certified and delivered or the proceeds thereof.

 

Section 303. Transfer Restrictions.

 

(a)       The Notes shall be subject to the transfer restrictions contained in Section 3.14 of the Original Indenture.

 

Article Four
SUBORDINATION

 

The following subordination provisions for the Notes are established pursuant to Section 12.01 of the Original Indenture and are in addition to the provision of Article Twelve of the Original Indenture, which shall apply to the Notes, except that Section 3.3 of this First Supplemental Indenture replaces in its entirety Section 12.04 of the Original Indenture.

 

Section 401. Notes Subordinated to Senior Indebtedness. Each of the Issuer and the Guarantors covenants and agrees, and each Holder of the Notes and the Guarantees, by his acceptance thereof, likewise covenants and agrees, that (a) the indebtedness represented by the Notes and the payment of the principal of and any premium or interest on each and all of the Notes of such series is subordinate, to the extent and in the manner hereinafter set forth, in right of payment to the prior payment in full of all Senior Indebtedness; and (b) Senior Indebtedness shall continue to be Senior Indebtedness with respect to the Notes irrespective of any amendment, modification or waiver of any term of the Notes or extension or renewal of the Notes (other than any such amendment, modification or waiver that makes the Notes subordinated or equal in right of payment to the Notes).

 

With respect to the Notes, in the event (a) of any payment by, or distribution of assets of, the Issuer or the Guarantors of any kind or character, whether in cash, property or securities, to creditors upon any dissolution, winding-up, liquidation or reorganization of the Issuer or the Guarantors, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other similar proceedings, or (b) subject to the provisions of Section 402, that (i) a default shall have occurred and be continuing with respect to the payment of principal, interest or any other monetary amounts due and payable on any Senior Indebtedness and such default shall have continued beyond the period of grace, if any, specified in the instrument evidencing such Senior Indebtedness (and the Trustee shall have received written notice thereof from the Issuer or the Guarantors or one or more holders of such Senior Indebtedness or their representative or representatives or the trustee or trustees under any indenture pursuant to which any such Senior Indebtedness may have been issued), or (ii) the maturity of any such Senior Indebtedness shall have been accelerated because of a default in respect of such Senior Indebtedness (and the Trustee shall have received written notice thereof from the Issuer or the Guarantors or one or more holders of such Senior Indebtedness or their representative or representatives or the trustee or trustees under any indenture pursuant to which any such Senior Indebtedness may have been issued), then:

 

(i)       the holders of all such Senior Indebtedness shall first be entitled to receive, in the case of clause (a) above, payment of all amounts due or to become due upon all such Senior Indebtedness or, in the case of subclauses (i) and (ii) of clause (b) above, payment of all amounts due upon all such Senior Indebtedness, or provision shall be made for such payment in money or money’s worth, before the Holders of any of the Notes are entitled to receive any payment on account of the principal of or any premium or

 

interest on the indebtedness evidenced by the Notes, including, without limitation, any payments made pursuant to Article Eleven or Article Fourteen of the Original Indenture;

 

(ii)       so long as any of the events in clause (a) or subclauses (i) or (ii) of clause (b) above has occurred and is continuing, any payment by, or distribution of assets of, the Issuer or the Guarantors of any kind or character, whether in cash, property or securities, to which the Holders of any of the Notes would be entitled except for the provisions of this Article Four, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Issuer or the Guarantors being subordinated to the payment of the Notes, shall be paid or distributed, as the case may be, by the Person making such payment or distribution, whether a trustee in bankruptcy, receiver or liquidating trustee or otherwise, directly to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any such Senior Indebtedness may have been issued, ratably according to aggregate amounts remaining unpaid on account of such Senior Indebtedness held or represented by each, to the extent necessary to make payment, in the case of clause (a) above, of all amounts due and to become due upon all such Senior Indebtedness, or, in the case of subclauses (i) and (ii) of clause (b) above, of all amounts due upon all such Senior Indebtedness, in each case remaining unpaid after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Senior Indebtedness, before any payment or distribution is made to the Holders of the indebtedness evidenced by the Notes; and

 

(iii)       so long as any of the events in clause (a) or subclauses (i) or (ii) of clause (b) above has occurred and is continuing, in the event that, notwithstanding the foregoing, any payment by, or distribution of assets of, the Issuer or the Guarantors of any kind or character, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Issuer or the Guarantors being subordinated to the payment of the Notes, in respect of principal of or any premium or interest on any of the Notes or in connection with the repurchase by the Issuer or the Guarantors of any of the Notes, shall be received by the Trustee or the Holders of any of the Notes before, in the case of clause (a) above, all amounts due or to become due upon all such Senior Indebtedness or, in the case of subclauses (i) or (ii) of clause (b) above, all amounts due upon all such Senior Indebtedness is paid in full (or provision is made for such payment), then such payment or distribution shall be paid over to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any such Senior Indebtedness may have been issued, ratably as aforesaid, for application to the payment of, in the case of clause (a) above, all amounts due and to become due upon all such Senior Indebtedness or, in the case of subclauses (i) or (ii) of clause (b) above, all amounts due upon all such Senior Indebtedness, in each case until all such amounts shall have been paid in full, after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Senior Indebtedness.

 

For purposes of this Article Four, the words “cash, property or securities” shall not be deemed to include shares of stock of the Issuer or the Guarantors as reorganized or readjusted, or securities of the Issuer or the Guarantors or any other Person provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article Four with respect to the Notes to the payment of all Senior Indebtedness which may at the time be outstanding; provided that (i) all such Senior Indebtedness is assumed by the Person, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of such Senior Indebtedness are not, without the consent of each such holder adversely affected thereby, altered by such reorganization or readjustment. The consolidation of the Issuer with, or the merger of the Issuer into, another Person or the liquidation or dissolution of the Issuer following the conveyance or transfer of its properties and assets as an entirety, or substantially as an entirety, to any winding-up, liquidation or reorganization for the purposes of this Section if such other Person shall, as part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article Eight of the Original Indenture. Nothing in this Section 4.1 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 6.07 of the Original Indenture.

 

Section 402. Disputes with Holders of Certain Senior Indebtedness. Any failure of the Issuer or the Guarantors to make any payment of or on or perform any other obligation under any Senior Indebtedness, other than any Senior Indebtedness incurred by the Issuer or the Guarantors or assumed or guaranteed, directly or indirectly, by the Issuer or the Guarantors for money borrowed (or any deferral, renewal, extension or refunding thereof) or any

 

indebtedness or obligation as to which the provisions of this Section shall have been waived by the Issuer or the Guarantors in the instrument or instruments by which the Issuer or the Guarantors incurred, assumed, guaranteed or otherwise created such indebtedness or obligation, shall not be deemed a default or event of default with respect to such Senior Indebtedness under clause (b) of the second paragraph of Section 4.1 if (i) the Issuer or the Guarantors shall be disputing its obligation to make such payment or perform such obligation and (ii) either (A) no final judgment relating to such dispute shall have been issued against the Issuer or the Guarantors which is in full force and effect and is not subject to further review, including a judgment that has become final by reason of the expiration of the time within which a party may seek further appeal or review, or (B) in the event of a judgment that is subject to further review or appeal has been issued, the Issuer or the Guarantors shall in good faith be prosecuting an appeal or other proceeding for review and a stay of execution shall have been obtained pending such appeal or review.

 

Section 403. Subrogation. Subject to the payment in full, in the case of clause (a) of the second paragraph of Section 4.1, of all amounts due and to become due on all Senior Indebtedness or, in the case of subclauses (i) or (ii) of clause (b) of the second paragraph of Section 4.1, of all amounts due on all such Senior Indebtedness, as the case may be, the Holders of the Notes shall be subrogated (equally and ratably with the holders of all obligations of the Issuer or the Guarantors which are subordinated in right of payment to Senior Indebtedness of the Issuer or the Guarantors to the same extent as the Notes are subordinated, or which by their express terms rank equally in right of payment with the Notes with regard to Senior Indebtedness, and which in each case are entitled to like rights of subrogation) to the rights of the holders of such Senior Indebtedness to receive payments or distributions of cash, property or securities of the Issuer or the Guarantors applicable to such Senior Indebtedness. Such subrogation shall continue until all amounts owing on the Notes shall be paid in full, and as between the Issuer or the Guarantors, and their respective creditors other than holders of such Senior Indebtedness and the Holders of the Notes, no such payment or distribution made to the holders of such Senior Indebtedness by virtue of this Article Four that otherwise would have been made to the Holders of the Notes shall be deemed to be a payment by the Issuer or the Guarantors on account of such Senior Indebtedness. The provisions of this Article Four are and are intended solely for the purpose of defining the relative rights of the Holders of the Notes, on the one hand, and the holders of Senior Indebtedness, on the other hand.

 

Section 404. Obligation of the Issuer and the Guarantors Unconditional. Nothing contained in this Article Four or elsewhere in this First Supplemental Indenture, in the Notes or in the Guarantees is intended to or shall impair, as among the Issuer or the Guarantors, or their respective creditors other than the holders of Senior Indebtedness and the Holders of the Notes, the obligation of the Issuer or the Guarantors, which is absolute and unconditional, to pay to such Holders the principal of and any premium and interest on the Notes as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of such Holders and the creditors of the Issuer or the Guarantors other than the holders of such Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or any Holder of the Notes from exercising all remedies otherwise permitted by the Indenture or applicable law upon default under this First Supplemental Indenture, subject to the rights, if any, under this Article Four of the holders of such Senior Indebtedness in respect of cash, property or securities of the Issuer or the Guarantors received by the Trustee or the holders of the Notes upon the exercise of any such remedy and the rights of the holders of such Senior Indebtedness to enforce the provisions of subparagraph (3) of the second paragraph of Section 4.1 against the Trustee and the Holders of the Notes.

 

Upon payment or distribution of assets of the Issuer or the Guarantors referred to in this Article Four, the Trustee and the Holders of the Notes shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which any such dissolution, winding-up, liquidation or reorganization proceeding affecting the affairs of the Issuer or the Guarantors is pending or upon a certificate of the trustee in bankruptcy, receiver, assignee for the benefit of creditors, liquidating trustee or agent or other person making any payment or distribution, delivered to the Trustee or to the Holders of the Notes, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior Indebtedness and other indebtedness of the Issuer or the Guarantors, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Four.

 

The Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing itself to be a holder of Senior Indebtedness (or a trustee or representative on behalf of such holder) to establish that such notice has been given by a holder of Senior Indebtedness or a trustee or representative on behalf of any such holder or

 

holders. In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article Four, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article Four, and, if such evidence is not furnished, the Trustee may defer payment to such Person pending judicial determination as to the right of such Person to receive such payment.

 

Section 405. Payments on the Notes Permitted. Nothing contained in this Article Four or elsewhere in this First Supplemental Indenture, in the Notes or in the Guarantees shall affect the obligations of the Issuer or the Guarantors to make, or prevent the Issuer or the Guarantors from making, payment of the principal of or any premium or interest on the Notes in accordance with the provisions hereof and thereof, except as otherwise provided in this Article Four.

 

Section 406. Effectuation of Subordination by Trustee. Each Holder of the Notes, by his acceptance thereof, authorizes and directs the Trustee in his, her or its behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article Four and appoints the Trustee his, her or its attorney-in-fact, as the case maybe, for any and all such purposes.

 

Section 407. Rights of Holders of Senior Indebtedness Not Impaired. No right of any present or future holder of any Senior Indebtedness shall at any time or in any way be prejudiced or impaired by any act or failure to act on the part of the Issuer or the Guarantors or by any noncompliance by the Issuer or the Guarantors with the terms, provisions and covenants of the Indenture, regardless of any knowledge thereof which any such holder may have or be otherwise charged with.

 

With respect to the holders of Senior Indebtedness, (i) the duties and obligations of the Trustee shall be determined solely by the express provisions of the Indenture; (ii) the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in the Indenture; (iii) no implied covenants or obligations shall be read into the Indenture against the Trustee; and (iv) the Trustee shall not be deemed to be a fiduciary as to such holders of Senior Indebtedness.

 

Article Five
OPTION TO DEFER INTEREST AND COVENANTS

 

Section 501. Option to Defer Interest Payments. So long as no Event of Default with respect to the Notes has occurred and is continuing, the Issuer may, at its option, defer interest payments on the Notes, from time to time, for one or more deferral periods of up to 20 consecutive semi-annual Interest Payment Periods (each such deferral period, commencing on the interest payment date on which the first such deferred interest payment otherwise would have been made, an “Optional Deferral Period”), except that no such Optional Deferral Period may extend beyond the final maturity date of the Notes or end on a day other than the day immediately preceding an interest payment date. During any Optional Deferral Period, interest on the Notes will continue to accrue at the then-applicable interest rate on the Notes (as reset from time to time on any Reset Date occurring during such Optional Deferral Period in accordance with the terms of the Notes). In addition, during any Optional Deferral Period, interest on the deferred interest (“compound interest”) will accrue at the then-applicable interest rate on the Notes (as reset from time to time on any Reset Date occurring during such Optional Deferral Period in accordance with the terms of the Notes), compounded semi-annually, to the extent permitted by applicable law. No interest will be due or payable on the Notes during an Optional Deferral Period, except upon a redemption of any Notes on any redemption date during such Optional Deferral Period (in which case all accrued and unpaid interest (including, to the extent permitted by applicable law, any compound interest) on the Notes to be redeemed to but excluding such redemption date will be due and payable on such redemption date), or unless the principal of and interest on the Notes shall have been declared due and payable as the result of an Event of Default with respect to the Notes (in which case all accrued and unpaid interest, including, to the extent permitted by applicable law, any compound interest, on the Notes shall become due and payable). All references in the Notes and, insofar as it relates to the Notes, the Indenture, to “interest” on the Notes shall be deemed to include any such deferred interest and, to the extent

 

permitted by applicable law, any compound interest, unless otherwise expressly stated or the context otherwise requires.

 

Before the end of any Optional Deferral Period that is shorter than 20 consecutive semi-annual Interest Payment Periods, the Issuer may elect, at its option, to extend such Optional Deferral Period, so long as the entire Optional Deferral Period does not exceed 20 consecutive semi-annual Interest Payment Periods or extend beyond the final maturity date of the Notes. The Issuer may also elect, at its option, to shorten the length of any Optional Deferral Period. No Optional Deferral Period (including as extended or shortened) may end on a day other than the day immediately preceding an interest payment date. At the end of any Optional Deferral Period, if all amounts then due on the Notes, including all accrued and unpaid interest thereon (including, without limitation and to the extent permitted by applicable law, any compound interest), are paid, the Issuer may elect to begin a new Optional Deferral Period; provided, however, that, without limitation of the foregoing, the Issuer may not begin a new Optional Deferral Period unless the Issuer has paid all accrued and unpaid interest on the Notes (including, without limitation and to the extent permitted by applicable law, any compound interest) from any previous Optional Deferral Periods.

 

For the avoidance of doubt, deferral of interest payments on the Notes pursuant to this Section 501 shall not constitute an Event of Default under Section 5.01(1) of the Original Indenture.

 

Section 502. Covenants. During any Optional Deferral Period, the Issuer will not do any of the following:

 

(i)       declare or pay any dividends or distributions on any Capital Stock of the Issuer or the Company;

 

(ii)       redeem, purchase, acquire or make a liquidation payment with respect to any Capital Stock of the Issuer or the Company;

 

(iii)       pay any principal, interest or premium on, or repay, repurchase or redeem, any indebtedness of the Issuer or the Guarantors that ranks equally with or junior to the Notes or the Guarantees in right of payment; or

 

(iv)       make any payments with respect to any guarantees by the Issuer or the Guarantors of any indebtedness if such guarantees rank equally with or junior to the Notes or the Guarantees in right of payment;

 

provided; however, during an Optional Deferral Period, the Issuer or the Guarantors may (a) declare and pay dividends or distributions payable solely in shares of the Issuer’s or the Guarantors’ common stock (together, for the avoidance of doubt, with cash in lieu of any fractional share) or options, warrants or rights to subscribe for or purchase shares of the Issuer’s or the Guarantors’ common stock, (b) declare and pay any dividend in connection with the implementation of a plan (a “Rights Plan”) providing for the issuance by the Issuer or the Guarantors to all holders of the Issuer’s or the Guarantors’ common stock of rights entitling them to subscribe for or purchase common stock or any class or series of the Issuer’s or the Guarantors’ preferred stock, which rights (1) are deemed to be transferred with such common stock, (2) are not exercisable until the occurrence of a specified event or events and (3) are also issued in respect of future issuances of the Issuer’s or the Guarantors’ common stock, (c) issue any of shares of the Issuer’s or the Guarantors’ Capital Stock under any Rights Plan or redeem or repurchase any rights distributed pursuant to a Rights Plan, (d) reclassify the Issuer’s or the Guarantors’ Capital Stock or exchange or convert one class or series of the Issuer’s or the Guarantors’ Capital Stock for another class or series of the Issuer’s or the Guarantors’ Capital Stock, (e) purchase fractional interests in shares of the Issuer’s or the Guarantors’ Capital Stock pursuant to the conversion or exchange provisions of such Capital Stock or the security being converted or exchanged, (f) purchase, acquire or withhold shares of the Issuer’s or the Guarantors’ common stock related to the issuance of the Issuer’s or the Guarantors’ common stock or rights under any dividend reinvestment plan or related to any of the Issuer’s or the Guarantors’ benefit plans for the Issuer’s or the Guarantors’ directors, officers, employees, consultants or advisors, including any employment contract, and (g) for the avoidance of doubt, convert convertible Capital Stock of the Issuer or the Guarantors into other Capital Stock of the Issuer or the Guarantors in accordance with the terms of such convertible Capital Stock (together, for the avoidance of doubt, with cash in lieu of any fractional share).

 

Section 503. Notice. The Issuer will give the Holders of the Notes and the Trustee written notice of its election of, or any shortening or extension of, an Optional Deferral Period at least 10 business days prior to the earlier of (1) the next succeeding interest payment date or (2) the date upon which the Issuer is required to give notice to any applicable self-regulatory organization or to Holders of the Notes of the next succeeding interest payment date or the record date therefor. The record date for the payment of deferred interest and, to the extent permitted by applicable law, any compound interest payable on the interest payment date immediately following the last day of an Optional Deferral Period will be the regular record date with respect to such interest payment date.

 

Article Six
OPTIONAL REDEMPTION

 

Section 601. Optional Redemption. The Issuer may redeem some or all of the Notes, at its option, in whole or in part (i) on any day in the period commencing on the date falling 90 days prior to the First Reset Date and ending on and including the First Reset Date and (ii) after the First Reset Date, on any interest payment date, at a redemption price in cash equal to 100% of the principal amount of the Notes being redeemed, plus, (subject to the provisions set forth in Section 604 regarding the payment of installments of interest on the Notes that are due and payable on any Interest Payment Date falling on or prior to a Redemption Date), accrued and unpaid interest on the Notes to be redeemed to but excluding the redemption date.

 

Section 602. Redemption Following a Tax Event. The Issuer may at its option redeem the Notes, in whole but not in part, at any time following the occurrence and during the continuance of a Tax Event at a redemption price in cash equal to 100% of the principal amount of the Notes, plus, (subject to the provisions set forth in Section 604 regarding the payment of installments of interest on the Notes that are due and payable on any Interest Payment Date falling on or prior to a Redemption Date), accrued and unpaid interest on the Notes to but excluding the redemption date.

 

Section 603. Redemption Following a Rating Agency Event. The Issuer may at its option redeem the Notes, in whole but not in part, at any time following the occurrence and during the continuance of a Rating Agency Event at a redemption price in cash equal to 102% of the principal amount of the Notes, plus, (subject to the provisions set forth in Section 604 regarding the payment of installments of interest on the Notes that are due and payable on any Interest Payment Date falling on or prior to a Redemption Date), accrued and unpaid interest on the Notes to but excluding the redemption date.

 

Section 604. Payments of Interest. Notwithstanding any statement in Article Six to the contrary, installments of interest on the Notes that are due and payable on any interest payment date falling on or prior to a redemption date for the Notes will be payable on that interest payment date to the Holders thereof as of the close of business on the relevant record date according to the terms of the Notes and the Indenture, except that, if the redemption date for any Notes falls on any day during an Optional Deferral Period, accrued and unpaid interest (including, to the extent permitted by applicable law, any compound interest) on such Notes will be paid on such redemption date to the persons entitled to receive the redemption price of such Notes. For the avoidance of doubt, the interest payment date falling immediately after the last day of an Optional Deferral Period shall not be deemed to fall on a day during such Optional Deferral Period.

 

Section 605. Securities Called for Redemption. Section 11.06 of the Original Indenture is replaced in its entirety as follows:

 

“Once notice of redemption is mailed, the Notes called for redemption will become due and payable on the redemption date at the applicable redemption price, plus, subject to the terms described in Section 604 of this First Supplemental Indenture, accrued and unpaid interest to but excluding the redemption date, and will be paid upon surrender thereof for redemption, unless (a) the notice of redemption provides that such redemption shall be subject to the condition described in Section 606 of this First Supplemental Indenture and (b) such redemption shall have been canceled in accordance with the provisions of Section 606 of this First Supplemental Indenture because such condition shall not have been satisfied. If only part of a note is redeemed, the Trustee will issue in the name of the registered holder of the note and deliver to such holder a new note in a principal amount equal to the unredeemed portion of the principal of the note surrendered for redemption. If the Issuer elects to redeem all or a portion of the

 

Notes, then, unless otherwise provided in such notice of redemption as described in the next succeeding paragraph, the redemption will not be conditional upon receipt by the paying agent or the Trustee of monies sufficient to pay the redemption price.”

 

Section 606. Notice of Redemption. The following paragraph is appended as the last paragraph of Section 11.04 of the Original Indenture:

 

“If, at the time a notice of redemption is given, (i) the Issuer has not effected satisfaction and discharge of the Notes pursuant to Article Four of the Indenture and (ii) such notice of redemption is not being given in connection with or in order to effect satisfaction and discharge of the Notes, then, if the notice of redemption so provides and at the Issuer’s option, the redemption may be subject to the condition that the Trustee shall have received, on or before the applicable redemption date, monies in an amount sufficient to pay the redemption price and accrued and unpaid interest on the Notes called for redemption to but excluding the redemption date. If monies in such amount are not received by the Trustee on or before such redemption date, such notice of redemption shall be automatically canceled and of no force or effect, such proposed redemption shall be automatically canceled and the Issuer shall not be required to redeem the Notes called for redemption on such redemption date. In the event that a redemption is canceled, the Issuer will, not later than the business day immediately following the proposed redemption date, deliver, or cause to be delivered, notice of such cancellation to the Holders of the Notes called for redemption (which notice will also indicate that any Notes or portions thereof surrendered for redemption shall be returned to the applicable Holders), and the Issuer will direct the Trustee to, and the Trustee will, promptly return any Notes or portions thereof that have been surrendered for redemption to the applicable Holders.”

 

Section 607. Deposit of Redemption Price. Section 11.05 of the Original Indenture is deleted in its entirety and does not apply to the Notes.

 

Article Seven
GENERAL

 

Section 701. Effectiveness. This First Supplemental Indenture shall become effective upon its execution and delivery.

 

Section 702. Ratification of Original Indenture. The Original Indenture as supplemented by the First Supplemental Indenture is in all respects ratified and confirmed, and this First Supplemental Indenture shall be deemed part of the Original Indenture in the manner and to the extent herein and therein provided.

 

Section 703. Governing Law. This First Supplemental Indenture, the Original Indenture as supplemented hereby and the Securities shall be governed by and construed in accordance with the laws of the State of New York.

 

Section 704. Severability. In case any provision in this First Supplemental Indenture, the Original Indenture as supplemented hereby or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

Section 705. Acceptance of Trust. The Trustee hereby accepts the trusts in this Fisrt Supplemental Indenture declared and provided for and agrees to perform the same upon the terms and conditions herein before set forth in trust for the various Persons who shall from time to time be Holders subject to all the terms and conditions herein set forth.

 

Section 706. Benefits of First Supplemental Indenture. Nothing in this First Supplemental Indenture or in the Notes, express or implied, shall give to any Person, other than the parties hereto, and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this First Supplemental Indenture.

 

Section 707. Multiple Originals. The parties may sign any number of copies of this First Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same

 

agreement. One signed copy is enough to prove this First Supplemental Indenture. Delivery of an executed counterpart of a signature page to this First Supplemental Indenture by telecopier, facsimile or other electronic transmission (i.e., a “pdf” or “tif”), Docusign or otherwise, shall be effective as delivery as a manually executed counterpart thereof and may be used in lieu of the original First Supplemental Indenture for all purposes. The words “execution,” “signed,” “signature,” and words of like import in this First Supplemental Indenture or in any other certificate, agreement or document related to this First Supplemental Indenture or the Notes shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and electronic signatures provided by DocuSign, AdobeSign or such other digital signature provider as specified in writing to the Trustee by an authorized representative of the Issuer. For the avoidance of doubt, any written communication to the Trustee hereunder may be signed manually and transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) or signed by way of an electronic signature provided by DocuSign, AdobeSign or such other digital signature provider as specified in writing to the Trustee by an authorized representative of the Company. The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based recordkeeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.

 

Section 708. Agent for Service. By the execution and delivery of this First Supplemental Indenture, the Company (i) irrevocably designates and appoints, and acknowledges that it has irrevocably designated and appointed, the Issuer as its authorized agent upon which process may be served in any suit, action or proceeding arising out of or relating to the Notes or this First Supplemental Indenture that may be instituted in any United States federal or New York state court in The City of New York or brought under federal or state securities laws or brought by the Trustee (whether in its individual capacities or in its capacity as Trustee) or, subject to Section 5.07 of the Original Indenture, any Holder of Notes in any United States federal or New York state court in The City of New York, (ii) submits to the nonexclusive jurisdiction of any such court in any such suit, action or proceeding, and (iii) agrees that service of process upon the Issuer and written notice of said service to the Issuer at its principal office and in the manner specified in the Original Indenture, shall be deemed in every respect effective service of process upon the Issuer in any such suit, action or proceeding. The Issuer further agrees to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of the Issuer in full force and effect so long as any of the Notes shall be Outstanding or any amounts shall be payable in respect of any Notes.

 

[Signature Page to Follow]

 

IN WITNESS WHEREOF, the parties hereof have caused this First Supplemental Indenture to be duly executed by their respective officers, directors or signatories duly authorized thereto, all as of the day and year first above written.

 

	EUSHI FINANCE, INC., as Issuer
	By:	/s/ Gregory W. Blunden
		Name: Gregory W. Blunden
		Title: Director

	By:	/s/ Brian C. Curry
		Name: Brian C. Curry
		Title: Corporate Secretary

	EMERA INCORPORATED, as Guarantor
	By:	/s/ Gregory W. Blunden
		Name: Gregory W. Blunden
		Title: Chief Financial Officer

	By:	/s/ Brian C. Curry
		Name: Brian C. Curry
		Title: Corporate Secretary

	EMERA US HOLDINGS INC., as Guarantor
	By:	/s/ Gregory W. Blunden
		Name: Gregory W. Blunden
		Title: Chief Financial Officer

	By:	/s/ Brian C. Curry
		Name: Brian C. Curry
		Title: Corporate Secretary

IN WITNESS WHEREOF, the parties hereof have caused this First Supplemental Indenture to be duly executed by their respective officers, directors or signatories duly authorized thereto, all as of the day and year first above written.

 

	EQUINITI TRUST COMPANY, LLC, as Trustee
	By:	/s/ Paul H. Kim
		Name: Paul H. Kim
		Title: Assistant General Counsel

Schedule B

 

 

FORM OF 7.625% SERIES NOTE DUE 2054
FACE OF NOTE

 

[Applicable Restricted Securities Legend]
[Depository Legend, if applicable]

 

EUSHI FINANCE, INC.
7.625% Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2054

 

No. [·] $[·]

 

CUSIP No.: [·]

 

ISIN No.: [·]

 

EUSHI FINANCE, INC., a corporation duly organized and existing under the laws of the State of Delaware (such corporation, and its successors and assigns under the Indenture hereinafter referred to, being herein called the “Issuer”), promises to pay to Cede & Co., or registered assigns, the principal sum of [•] Million Dollars ($[•]) on December 15, 2054 (the “Maturity Date”), and to pay interest thereon (i) from and including the June 18, 2024 (the “Original Issue Date”) to but excluding December 15, 2029 (the “First Reset Date”) at the rate of 7.625% per annum and (ii) from and including the First Reset Date, during each Reset Period (as defined on the reverse hereof) at a rate per annum equal to the Five-year U.S. Treasury Rate (as defined on the reverse hereof) as of the most recent Reset Interest Determination Date (as defined on the reverse hereof) plus a spread of 3.136%, to be reset on each Reset Date (as defined on the reverse hereof).

 

Interest Payment Dates: June 15 and December 15, beginning December 15, 2024, subject to the Issuer’s right to defer interest payments pursuant to the provisions set forth below.

 

Record Dates: (i) if all of the Notes are in book-entry form represented by one or more Global Securities, the Business Day immediately preceding the applicable Interest Payment Date and (ii) if any of the Notes are not in book-entry form represented by one or more Global Securities, the 15th calendar day preceding such Interest Payment Date (whether or not a Business Day) (each such date in clauses (i) and (ii), a “Regular Record Date”).

 

Unless the certificate of authentication hereon has been duly executed by the Trustee by manual signature, this Security shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.

 

IN WITNESS WHEREOF, the Issuer has caused this Security to be signed manually or by facsimile by one of its duly authorized officers.

 

Dated: June 18, 2024

 

	EUSHI FINANCE, INC.
	By:
		Name:
		Title:

	By:
		Name:
		Title:

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

	EQUINITI TRUST COMPANY, LLC, as Trustee
	By:
		Authorized Signatory

REVERSE SIDE OF NOTE

 

This Security is one of a duly authorized issue of securities of the Issuer designated as its 7.625% Fixed-to-Fixed Reset Rate Notes due 2054 (the “Securities”), initially in aggregate principal amount of $[ ], which may be issued under the Indenture dated as of June 18, 2024 (the “Original Indenture”), as supplemented by the First Supplemental Indenture dated as of June 18, 2024 (the “First Supplemental Indenture” and, the Original Indenture as supplemented by the First Supplemental Indenture, the “Indenture”), by and among the Issuer, Emera Incorporated (the “Company”), Emera US Holdings Inc. (“EUSHI” and together with the Company, the “Guarantors”), and Equiniti Trust Company, LLC, as trustee (the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Issuer, the Guarantors, the Trustee and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is a global Security initially representing $[ ] aggregate principal amount of the Securities of this series.

 

Interest on the Notes will accrue from the Original Issue Date and will be payable semi-annually in arrears on June 15 and December 15 (each, an “Interest Payment Date”) of each year, beginning on December 15, 2024, to Holders at the close of business on the Regular Record Date for the applicable Interest Payment Date, subject to the Company’s right to defer interest payments pursuant to the provisions set forth below.

 

Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months. The applicable interest rate for each Reset Period will be determined by the Calculation Agent (as defined below), as of the applicable Reset Interest Determination Date, in accordance with following provisions:

 

As provided above, the applicable interest rate for each Reset Period will be determined by the Calculation Agent, as of the applicable Reset Interest Determination Date. Promptly upon such determination, the Calculation Agent will notify the Company of the interest rate for the Reset Period and the Company will promptly notify, or cause the Calculation Agent to promptly notify, in writing, the Trustee and each Paying Agent of such interest rate. The Calculation Agent’s determination of any interest rate, and its calculation of the amount of interest for any Interest Payment Period beginning on or after the First Reset Date, will be on file at the Company’s principal offices, will be made available to any Holder or beneficial owner of the Notes upon request and will be final and binding in the absence of manifest error.

 

If an Interest Payment Date, redemption date, or maturity date falls on a day that is not a Business Day, payment will be made on the next succeeding Business Day with the same force and effect as if made on such payment date.

 

“Business Day” means, unless otherwise expressly stated, any day other than (i) a Saturday or Sunday or (ii) a day on which banks and trust companies in The City of New York are authorized or obligated by law, regulation or executive order to remain closed.

 

“Calculation Agent” means, at any time, the entity appointed by the Issuer and serving as such agent with respect to the Notes at such time. Unless the Issuer has validly called all of the outstanding Notes for redemption on a redemption date occurring prior to the First Reset Date, the Issuer will appoint a Calculation Agent for the Notes prior to the Reset Interest Determination Date immediately preceding the First Reset Date; provided that, if the Issuer has called all of the outstanding Notes for redemption on a redemption date occurring prior to the First Reset Date but the Issuer does not redeem all of the outstanding Notes on such redemption date, the Issuer will appoint a Calculation Agent for the Notes as promptly as practicable after such proposed redemption date. The Issuer may terminate any such appointment and may appoint a successor Calculation Agent at any time and from time to time (so long as there shall always be a Calculation Agent in respect of the Notes when so required). The Issuer may appoint the Company or an affiliate of the Company as calculation agent.

 

“Five-year U.S. Treasury Rate” means, as of any Reset Interest Determination Date, (i) an interest rate (expressed as a decimal) determined to be the per annum rate equal to the arithmetic mean of the yields to maturity for U.S. Treasury securities adjusted to constant maturity with a maturity of five years from the next Reset Date and trading in the public securities markets, for the five consecutive Business Days immediately prior to the respective

 

Reset Interest Determination Date as published (or, if fewer than five consecutive Business Days are so published on the applicable Reset Interest Determination Date, for such number of Business Days published) in the most recent H.15, or (ii) if there is no such published U.S. Treasury security with a maturity of five years from the next Reset Date and trading in the public securities markets, then the rate will be determined by interpolation between the arithmetic mean of the yields to maturity for each of the two series of U.S. Treasury securities adjusted to constant maturity trading in the public securities markets, (A) one maturing as close as possible to, but earlier than, the Reset Date following the next succeeding Reset Interest Determination Date, and (B) the other maturing as close as possible to, but later than, the Reset Date following the next succeeding Reset Interest Determination Date, in each case for the five consecutive Business Days immediately prior to the respective Reset Interest Determination Date as published in the most recent H.15. If the Five-year U.S. Treasury Rate cannot be determined pursuant to the methods described in clause (i) or (ii) above, then the Five-year U.S. Treasury Rate will be the same interest rate determined for the prior Reset Interest Determination Date or, if the Five-year U.S. Treasury Rate cannot be so determined as of the Reset Interest Determination Date preceding the First Reset Date, then the interest rate applicable for the Reset Period beginning on and including the First Reset Date will be deemed to be 7.625% per annum, which is the same interest rate as in effect from and including the Original Issue Date to but excluding the First Reset Date.

 

“H.15” means the statistical release designated as such, or any successor publication, published by the Board of Governors of the U.S. Federal Reserve System (or any successor thereto).

 

“Interest Payment Period” means the semi-annual period from and including an Interest Payment Date to but excluding the next succeeding Interest Payment Date, except for the first Interest Payment Period which shall be the period from and including the Original Issue Date to but excluding December 15, 2024.

 

“most recent H.15” means the H.15 published closest in time but prior to the close of business on the second Business Day prior to the applicable Reset Date.

 

“redemption date” when used with respect to any Notes to be redeemed, means the date fixed for such redemption pursuant to the First Supplemental Indenture.

 

“Reset Date” means the First Reset Date and December 15 of every fifth year after 2029.

 

“Reset Interest Determination Date” means, in respect of any Reset Period, the day falling two Business Days prior to the first day of such Reset Period.

 

“Reset Period” means the period from and including the First Reset Date to but excluding the next following Reset Date and thereafter each period from and including a Reset Date to but excluding the next following Reset Date, or the maturity date or date of redemption or repayment, as the case may be.

 

Payment of the principal of (and premium, if any) and interest on this Security will be made at the office or agency of the Issuer maintained for that purpose in the Borough of Manhattan, The City of New York, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that payment of interest may be made at the option of the Issuer (i) by check mailed to the address of the Person entitled thereto as such address shall appear on the Security Register or (ii) by wire transfer to an account maintained in the United States or Canada by the payee. Notwithstanding the foregoing, payments of principal, premium, if any, and interest on a global Security registered in the name of a Depositary or its nominee will be made by wire transfer of immediately available funds. Principal paid in relation to any Security of this series at Stated Maturity shall be paid to the Holder of such Security only upon presentation and surrender of such Security to such office or agency referred to above.

 

As provided for in the Indenture, the Issuer may from time to time without notice to, or the consent of, the Holders of the Securities, create and issue additional Securities of this series under the Indenture, equal in rank to the Outstanding Securities of this series in all respects (or in all respects except for the payment of interest accruing prior to the issue date of the new Securities of this series or except for the first payment of interest following the issue date of the new Securities of this series) so that the new Securities of this series shall be consolidated and form a single series with the Outstanding Securities of this series and have the same terms as to status, redemption or

 

otherwise as the Outstanding Securities of this series; provided that, if the additional Securities of this series are not fungible with the Outstanding Securities of this series for U.S. federal income tax purposes, the additional Securities shall have a separate CUSIP and/or ISIN number.

 

The Issuer shall pay to the Holder of this Security (i) such Additional Amounts and other amounts as may be payable under Section 10.05 of the Original Indenture and (ii) such Additional Interest as may be payable pursuant to the Registration Rights Agreement. Whenever in this Security there is mentioned, in any context, the payment of principal (or premium, if any), interest or any other amount payable under or with respect to this Security, such mention shall be deemed to include mention of the payment of Additional Amounts and/or Additional Interest to the extent that, in such context, Additional Amounts and/or Additional Interest are, were or would be payable in respect thereof.

 

Optional Interest Deferral. So long as no Event of Default with respect to the Notes has occurred and is continuing, the Issuer may, at its option, defer interest payments on the Notes, from time to time, for one or more deferral periods of up to 20 consecutive semi-annual Interest Payment Periods (each such deferral period, commencing on the interest payment date on which the first such deferred interest payment otherwise would have been made, an “Optional Deferral Period”), except that no such Optional Deferral Period may extend beyond the final maturity date of the Notes or end on a day other than the day immediately preceding an Interest Payment Date. During any Optional Deferral Period, interest on the Notes will continue to accrue at the then-applicable interest rate on the Notes (as reset from time to time on any Reset Date occurring during such Optional Deferral Period in accordance with the terms of the Notes). In addition, during any Optional Deferral Period, interest on the deferred interest (“compound interest”) will accrue at the then-applicable interest rate on the Notes (as reset from time to time on any Reset Date occurring during such Optional Deferral Period in accordance with the terms of the Notes), compounded semi-annually, to the extent permitted by applicable law. No interest will be due or payable on the Notes during an Optional Deferral Period, except upon a redemption of any Notes on any redemption date during such Optional Deferral Period (in which case all accrued and unpaid interest (including, to the extent permitted by applicable law, any compound interest) on the Notes to be redeemed to but excluding such redemption date will be due and payable on such redemption date), or unless the principal of and interest on the Notes shall have been declared due and payable as the result of an Event of Default with respect to the Notes (in which case all accrued and unpaid interest, including, to the extent permitted by applicable law, any compound interest, on the Notes shall become due and payable). All references in the Notes and, insofar as it relates to the Notes, the Indenture, to “interest” on the Notes shall be deemed to include any such deferred interest and, to the extent permitted by applicable law, any compound interest, unless otherwise expressly stated or the context otherwise requires.

 

Before the end of any Optional Deferral Period that is shorter than 20 consecutive semi-annual Interest Payment Periods, the Issuer may elect, at its option, to extend such Optional Deferral Period, so long as the entire Optional Deferral Period does not exceed 20 consecutive semi-annual Interest Payment Periods or extend beyond the final maturity date of the Notes. The Company may also elect, at its option, to shorten the length of any Optional Deferral Period. No Optional Deferral Period (including as extended or shortened) may end on a day other than the day immediately preceding an Interest Payment Date. At the end of any Optional Deferral Period, if all amounts then due on the Notes, including all accrued and unpaid interest thereon (including, without limitation and to the extent permitted by applicable law, any compound interest), are paid, the Issuer may elect to begin a new Optional Deferral Period; provided, however, that, without limitation of the foregoing, the Issuer may not begin a new Optional Deferral Period unless the Issuer has paid all accrued and unpaid interest on the Notes (including, without limitation and to the extent permitted by applicable law, any compound interest) from any previous Optional Deferral Periods. During any Optional Deferral Period, the Issuer will not do any of the following:

 

(i)       declare or pay any dividends or distributions on any Capital Stock of the Issuer or the Company;

 

(ii)       redeem, purchase, acquire or make a liquidation payment with respect to any Capital Stock of the Issuer or the Company;

 

(iii)       pay any principal, interest or premium on, or repay, repurchase or redeem, any indebtedness of the Issuer or the Guarantors that ranks equally with or junior to the Notes or the Guarantees in right of payment; or

 

(iv)       make any payments with respect to any guarantees by the Issuer or the Guarantors of any indebtedness if such guarantees rank equally with or junior to the Notes or the Guarantees in right of payment;

 

provided; however, during an Optional Deferral Period, the Issuer and the Guarantors may (a) declare and pay dividends or distributions payable solely in shares of the Issuer’s or the Company’s common stock (together, for the avoidance of doubt, with cash in lieu of any fractional share) or options, warrants or rights to subscribe for or purchase shares of the Issuer’s or the Company’s common stock, (b) declare and pay any dividend in connection with the implementation of a plan (a “Rights Plan”) providing for the issuance by the Issuer or the Company to all holders of the Issuer’s or the Company’s common stock of rights entitling them to subscribe for or purchase common stock or any class or series of the Issuer’s or the Company’s preferred stock, which rights (1) are deemed to be transferred with such common stock, (2) are not exercisable until the occurrence of a specified event or events and (3) are also issued in respect of future issuances of the Issuer’s or the Company’s common stock, (c) issue any of shares of the Issuer’s or the Company’s Capital Stock under any Rights Plan or redeem or repurchase any rights distributed pursuant to a Rights Plan, (d) reclassify the Issuer’s or the Company’s Capital Stock or exchange or convert one class or series of the Issuer’s or the Company’s Capital Stock for another class or series of the Issuer’s or the Company’s Capital Stock, (e) purchase fractional interests in shares of the Issuer’s or the Company’s Capital Stock pursuant to the conversion or exchange provisions of such Capital Stock or the security being converted or exchanged, (f) purchase, acquire or withhold shares of the Issuer’s or the Company’s common stock related to the issuance of the Issuer’s or the Company’s common stock or rights under any dividend reinvestment plan or related to any of the Issuer’s or the Company’s benefit plans for the Issuer’s or the Company’s directors, officers, employees, consultants or advisors, including any employment contract, and (g) for the avoidance of doubt, convert convertible Capital Stock of the Issuer or the Company into other Capital Stock of the Issuer or the Company in accordance with the terms of such convertible Capital Stock (together, for the avoidance of doubt, with cash in lieu of any fractional share).

 

The Issuer will give the Holders of the Notes and the Trustee notice of its election of, or any shortening or extension of, an Optional Deferral Period at least 10 Business Days prior to the earlier of (1) the next succeeding Interest Payment Date or (2) the date upon which the Issuer is required to give notice to any applicable self-regulatory organization or to Holders of the Notes of the next succeeding Interest Payment Date or the record date therefor. The record date for the payment of deferred interest and, to the extent permitted by applicable law, any compound interest payable on the Interest Payment Date immediately following the last day of an Optional Deferral Period will be the Regular Record Date with respect to such Interest Payment Date.

 

“Capital Stock” means (i) in the case of a corporation or a company, corporate stock or shares; (ii) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; (iii) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and (iv) any other interest or participation that confers on a person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing person.

 

The indebtedness represented by the Notes and the Guarantees and the payment of the principal of and any premium or interest on each and all of the Notes of such series is subordinate in right of payment to the prior payment in full of all Senior Indebtedness (as defined below), to the extent set forth in the Indenture. Senior Indebtedness shall continue to be Senior Indebtedness with respect to the Notes irrespective of any amendment, modification or waiver of any term of the Notes or extension or renewal of the Notes (other than any such amendment, modification or waiver that makes the Notes subordinated or equal in right of payment to the Notes).

 

“Senior Indebtedness” means, with respect to the Notes and the Guarantees, (i) indebtedness of the Issuer or the Guarantors, whether outstanding at the date of the indenture or incurred, created or assumed after such date, (a) in respect of money borrowed by the Issuer or the Guarantors (including any financial derivative, hedging or futures contract or similar instrument, to the extent any such item is primarily a financing transaction) and (b) evidenced by debentures, bonds, notes, credit or loan agreements or other similar instruments or agreements issued or entered into by the Issuer or the Guarantors; (ii) all finance lease obligations of the Issuer or the Guarantors; (iii) all obligations of the Issuer or the Guarantors issued or assumed as the deferred purchase price of property, all conditional sale obligations of the Issuer or the Guarantors and all obligations of the Issuer or the Guarantors under any title retention agreement (but excluding, for the avoidance of doubt, trade accounts payable arising in the ordinary course of

 

business and long-term purchase obligations); (iv) all obligations of the Issuer or the Guarantors for the reimbursement of any letter of credit, banker’s acceptance, security purchase facility or similar credit transaction; and (v) all obligations of the type referred to in clauses (i) through (iv) above of other persons for the payment of which the Issuer or the Guarantors are responsible or liable as obligor, guarantor or otherwise, except for any obligations, instruments or agreements of the type referred to in any of clauses (i) through (v) above that, by the terms of the instruments or agreements creating or evidencing the same or pursuant to which the same is outstanding, are subordinated or equal in right of payment to each of the Notes and the Guarantees.

 

The Issuer may redeem some or all of the Notes, at its option, in whole or in part (i) on any day in the period commencing on the date falling 90 days prior to the First Reset Date and ending on and including the First Reset Date and (ii) after the First Reset Date, on any interest payment date, at a redemption price in cash equal to 100% of the principal amount of the Notes being redeemed, plus, (subject to the provisions set forth in the Indenture regarding the payment of installments of interest on the Notes that are due and payable on any Interest Payment Date falling on or prior to a redemption date), accrued and unpaid interest on the Notes to be redeemed to but excluding the redemption date.

 

The Issuer may at its option redeem the Notes, in whole but not in part, at any time following the occurrence and during the continuance of a Tax Event (as defined below) at a redemption price in cash equal to 100% of the principal amount of the Notes, plus, (subject to the provisions set forth in the Indenture regarding the payment of installments of interest on the Notes that are due and payable on any Interest Payment Date falling on or prior to a redemption date), accrued and unpaid interest on the Notes to but excluding the redemption date.

 

“Tax Event” means that the Issuer has received an opinion of counsel experienced in such matters to the effect that, as a result of:

 

(i)

any amendment to, clarification of, or change, including any announced prospective change, in the laws or treaties of the United States or any of its political subdivisions or taxing authorities, or any regulations under those laws or treaties;

 

(ii)

an administrative action, which means any judicial decision or any official administrative pronouncement, ruling, regulatory procedure, notice or announcement, including any notice or announcement of intent to issue or adopt any administrative pronouncement, ruling, regulatory procedure or regulation;

 

(iii)

any amendment to, clarification of, or change in the official position or the interpretation of any administrative action or judicial decision or any interpretation or pronouncement that provides for a position with respect to an administrative action or judicial decision that differs from the previously generally accepted position, in each case by any legislative body, court, governmental authority or regulatory body, regardless of the time or manner in which that amendment, clarification or change is introduced or made known; or

 

(iv)

a threatened challenge asserted in writing in connection with a tax audit of the Issuer or any of its affiliates or subsidiaries, or a publicly-known threatened challenge asserted in writing against any other taxpayer that has raised capital through the issuance of securities that are substantially similar to the Notes,

 

which amendment, clarification or change is effective or the administrative action is taken or judicial decision, interpretation or pronouncement is issued or threatened challenge is asserted or becomes publicly known after June 10, 2024, there is more than an insubstantial risk that interest payable by the Issuer on the Notes is not deductible, or within 90 days would not be deductible, in whole or in part, by the Issuer (or a member of the U.S. consolidated group of which the Issuer is a member) for United States federal income tax purposes.

 

The Issuer may at its option redeem the Notes, in whole but not in part, at any time following the occurrence and during the continuance of a Rating Agency Event (as defined below) at a redemption price in cash equal to 102% of the principal amount of the Notes, plus, (subject to the provisions set forth in the Indenture regarding the

 

payment of installments of interest on the Notes that are due and payable on any Interest Payment Date falling on or prior to a redemption date), accrued and unpaid interest on the Notes to but excluding the redemption date.

 

“Rating Agency Event” means, as of any date, a change, clarification or amendment in the methodology published by any nationally recognized statistical rating organization within the meaning of Section 3(a)(62) of the Securities Exchange Act of 1934, as amended (or any successor provision thereto), that then publishes a rating for the Issuer (together with any successor thereto, a “rating agency”) in assigning equity credit to securities such as the Notes, (a) as such methodology was in effect on June 10, 2024, in the case of any rating agency that published a rating for the Issuer as of June 10, 2024, or (b) as such methodology was in effect on the date such rating agency first published a rating for the Issuer, in the case of any rating agency that first publishes a rating for the Issuer after June 10, 2024 (in the case of either clause (a) or (b), the “current methodology”), that results in (i) any shortening of the length of time for which a particular level of equity credit pertaining to the Notes by such rating agency would have been in effect had the current methodology not been changed or (ii) a lower equity credit (including up to a lesser amount) being assigned by such rating agency to the Notes as of the date of such change, clarification or amendment than the equity credit that would have been assigned to the Notes by such rating agency had the current methodology not been changed.

 

Notice of Redemption. Notice of any redemption will be mailed or electronically delivered (or otherwise transmitted in accordance with the Depositary’s procedures) at least 10 days but not more than 60 days before the redemption date to each Holder of Notes to be redeemed in accordance with Section 1.06 of the Indenture. In the case of a partial redemption, selection of the Notes for redemption will be made by lot or by such other customary method prescribed by the Depositary. No Notes of a principal amount of $2,000 or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to such Note will state the portion of the principal amount of the Note to be redeemed. A new Note in a principal amount equal to the unredeemed portion of the original Note will be issued in the name of the Holder of the original Note upon surrender for cancellation of the original Note. For so long as the Notes are held by the Depositary (or another depositary), the redemption of the Notes shall be done in accordance with the policies and procedures of the Depositary, which may be on a pro rata pass-through distribution of principal basis. Unless the Issuer defaults in payment of the redemption price, on and after the redemption date interest will cease to accrue on the Notes or portions thereof called for redemption.

 

If, at the time a notice of redemption is given, (i) the Issuer has not effected satisfaction and discharge of the Notes pursuant to Article Four of the Indenture and (ii) such notice of redemption is not being given in connection with or in order to effect satisfaction and discharge of the Notes, then, if the notice of redemption so provides and at the Issuer’s option, the redemption may be subject to the condition that the Trustee shall have received, on or before the applicable redemption date, monies in an amount sufficient to pay the redemption price and accrued and unpaid interest on the Notes called for redemption to but excluding the redemption date. If monies in such amount are not received by the Trustee on or before such redemption date, such notice of redemption shall be automatically canceled and of no force or effect, such proposed redemption shall be automatically canceled and the Issuer shall not be required to redeem the Notes called for redemption on such redemption date. In the event that a redemption is canceled, the Issuer will, not later than the business day immediately following the proposed redemption date, deliver, or cause to be delivered, notice of such cancellation to the Holders of the Notes called for redemption (which notice will also indicate that any Notes or portions thereof surrendered for redemption shall be returned to the applicable Holders), and the Issuer will direct the Trustee to, and the Trustee will, promptly return any Notes or portions thereof that have been surrendered for redemption to the applicable Holders

 

If an Event of Default shall occur and be continuing, the principal of all the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.

 

The Securities do not have the benefit of sinking fund obligations.

 

Sections 14.02 and 14.03 of the Original Indenture shall be applicable to the Securities of this series, upon compliance by the Original Indenture with certain conditions set forth therein, which provisions apply to this Security.

 

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Holders under the Indenture at any time by the Issuer

 

and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the Securities at the time Outstanding affected by such amendment or modification. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities at the time Outstanding, on behalf of the Holders of all the Securities, to waive compliance by the Issuer with certain provisions of the Indenture and also contains provisions permitting the Holders of a majority in aggregate principal amount of the Outstanding Securities with respect to which a Default shall have occurred and shall be continuing, on behalf of the Holders of all Outstanding Securities, to waive certain past defaults under the Indenture and their consequences. Any such consent or waiver by or on behalf of the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Security.

 

Initially, the Trustee will act as Paying Agent and Security Registrar. The Issuer may appoint and change any Paying Agent or Security Registrar without notice to the Holders. The Issuer or any of the Issuer’s subsidiaries may act as Paying Agent or Security Registrar.

 

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any, on) and interest on this Security at the times, place, and rate, and in the coin or currency, herein prescribed.

 

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable on the Security Register of the Issuer, upon surrender of this Security for registration of transfer at the office or agency of the Issuer maintained for such purpose in the Borough of Manhattan, The City of New York duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

 

The Securities of this series are issuable only in registered form without coupons in denominations of $2,000 and any integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series of a different authorized denomination, as requested by the Holder surrendering the same.

 

No service charge shall be made for any registration of transfer or exchange of Securities of this series, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

 

Prior to the time of due presentment of this Security for registration of transfer, the Issuer, the Trustee, and any agent of the Issuer or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security is overdue, and neither the Issuer, the Trustee, the Securities Administrator nor any agent shall be affected by notice to the contrary.

 

If at any time, (i) the Depositary for the Securities of this series notifies the Issuer that it is unwilling or unable or no longer qualified to continue as Depositary for the Securities of this series or if at any time the Depositary for the Securities of this series shall no longer be a clearing agency registered or in good standing under the Securities Exchange Act of 1934, as amended, and a successor Depositary is not appointed by the Issuer within 90 days after the Issuer receives such notice or becomes aware of such condition, as the case may be, (ii) the Issuer determines that the Securities of this series shall no longer be represented by a global Security or Securities or (iii) any Event of Default shall have occurred and be continuing with respect to the Securities of this series, then in such event the Issuer will execute and Trustee will authenticate and deliver Securities of this series in definitive registered form, in authorized denominations, and in an aggregate principal amount equal to the principal amount of this Security in exchange for this Security. Such Securities of this series in definitive registered form shall be registered in such names and issued in such authorized denominations as the Depository, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities of this series to the Persons in whose names such Securities of this series are so registered.

 

In addition to the rights provided to Holders of Securities under the Indenture, Holders of the Securities of this series shall have the rights set forth in the Registration Rights Agreement, dated as of June 4, 2021, among the Issuer, the Guarantors and the initial purchasers named therein (the “Registration Rights Agreement”), including the right to receive the Exchange Notes and the additional interest as provided therein.

 

The Indenture and this Security shall be governed by and construed in accordance with the laws of the State of New York.

 

All references herein to “dollars” or “$” means a dollar or other equivalent unit in such coin or currency of the United States of America as at the time should be legal tender for the payment of public and private debts, and all terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

GUARANTEE
OF
EMERA INCORPORATED
and
EMERA US HOLDINGS INC.

 

The obligations of each Guarantor to the Holders of the Securities of this series and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article Fifteen of the Original Indenture, and reference is hereby made to such Article and Indenture for the precise terms of the Guarantee.

 

This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication of such Security of this series, upon which this notation of the Guarantee is endorsed, shall have been manually executed by the Trustee under such Indenture.

 

All terms used in this Guarantee which are defined in such Indenture shall have the meanings assigned to them in such Indenture.

 

This Guarantee shall be governed by and construed in accordance with the laws of the State of New York.

 

Executed and dated the date on the face hereof.

 

	EMERA INCORPORATED
	By:
		Name:
		Title:

	By:
		Name:
		Title:

 

	EMERA US HOLDINGS INC.
	By:
		Name:
		Title:

	By:
		Name:
		Title:

SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY^**

 

The following increases or decreases in the principal amount of this Global Security have been made:

 

Date of Transaction	Amount of Decrease in Principal Amount of Global Security	Amount of Increase in Principal Amount of Global Security	Principal Amount of Global Security Following Such Decrease (or Increase)	Signature of Authorized Signatory or Trustee

 

 

---

^** This Schedule should be included only if the Security is a Global Security.

 

Exhibit 4.4

 

REGISTRATION RIGHTS AGREEMENT

 

This REGISTRATION RIGHTS AGREEMENT (this “Agreement”) dated June 18, 2024 (the “Closing Date”) is entered into by and among EUSHI Finance, Inc., a Delaware corporation (the “Issuer”), an indirect wholly-owned subsidiary of Emera Incorporated, a Nova Scotia company (“Emera”), and Emera US Holdings Inc., a Delaware corporation, and Emera, as guarantors (each a “Guarantor” and, collectively, the “Guarantors”), and Morgan Stanley & Co. LLC, MUFG Securities Americas Inc. and RBC Capital Markets, LLC, as representatives (the “Representatives”) of the several initial purchasers (the “Initial Purchasers”) named in Schedule 1 to the Purchase Agreement (as defined below). The Issuer and the Guarantors are hereby collectively referred to as the “Obligors.”

 

The Obligors and the Initial Purchasers are parties to the Purchase Agreement dated June 10, 2024 (the “Purchase Agreement”), which provides for the sale by the Issuer to the Initial Purchasers of USD $500,000,000 in aggregate principal amount of its 7.625% Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2054 (the “Notes”), which will be fully and unconditionally guaranteed on a joint, several and subordinated basis by each of the Guarantors (the “Guarantees”). The Notes and the Guarantees are hereby collectively referred to as the “Securities.” As an inducement to the Initial Purchasers to enter into the Purchase Agreement, the Obligors have agreed to provide to the Initial Purchasers and their direct and indirect transferees the registration rights set forth in this Agreement. The execution and delivery of this Agreement is a condition to the closing under the Purchase Agreement.

 

In consideration of the foregoing, the parties hereto agree as follows:

 

1.  Definitions. As used in this Agreement, the following terms shall have the following meanings:

 

“Business Day” shall mean any day that is not a Saturday, Sunday or other day on which commercial banks in New York City or the Province of Nova Scotia are authorized or required by law to remain closed. For purposes of this Agreement, if the day on which any deadline specified in this Agreement expires is not a Business Day, such deadline shall be deemed to expire on the next succeeding Business Day.

 

“Canadian Prospectus” means a prospectus of the Issuer meeting the requirements of applicable Nova Scotia Securities Laws included in the Exchange Offer Registration Statement or Shelf Registration Statement under the MJDS (as defined herein) (with such additions and deletions as are required or permitted under the MJDS) filed with the NSSC (as defined herein) under National Instrument 71-101 – The Multijurisdictional Disclosure System (“National Instrument 71-101”) for which a final receipt or notification of clearance has been or will be issued by the NSSC.

 

“Closing Date” means June 18, 2024.

 

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time.

 

“Exchange Dates” shall have the meaning set forth in Section 2(a)(ii) hereof.

 

“Exchange Offer” shall mean the exchange offer by the Obligors of Exchange Securities for Registrable Securities pursuant to Section 2(a) hereof.

 

“Exchange Offer Registration” shall mean a registration under the Securities Act effected pursuant to Section 2(a) hereof.

 

“Exchange Offer Registration Statement” shall mean an exchange offer registration statement on Form S-4, Form F-4, Form F-10 and/or, if applicable, any other appropriate form (which, in the case of a registration statement that is prepared in part on Form F-10, shall include a Canadian Prospectus in the form of a base shelf prospectus contemplated by National Instrument 44-102-Shelf Distributions (“National Instrument 44-102”) or a short form prospectus contemplated by National Instrument 44-101-Short Form Prospectus Distributions (“National Instrument 44-101”) or other appropriate form, prepared and filed with the NSSC under National Instrument 71-101) and all amendments and supplements to such registration statement, in each case including the Prospectus contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.

 

“Exchange Securities” shall mean fixed-to-fixed reset rate junior subordinated notes issued by the Issuer and guaranteed by the Guarantors under the Indenture containing terms identical to the Securities (except that (i) interest thereon shall accrue from the last date on which interest was paid on the Securities or, if no such interest has been paid, from the Closing Date and (ii) the Exchange Securities will not be subject to restrictions on transfer or to any increase in annual interest rate for failure to comply with this Agreement) and to be offered to Holders of Securities in exchange for Securities pursuant to the Exchange Offer.

 

“FINRA” means the Financial Industry Regulatory Authority, Inc.

 

“Free Writing Prospectus” means each free writing prospectus (as defined in Rule 405 under the Securities Act) prepared by or on behalf of the Issuer or used or referred to by the Issuer in connection with the sale of the Securities or the Exchange Securities.

 

“Guarantees” shall have the meaning set forth in the preamble. “Guarantors” shall have the meaning set forth in the preamble and any Guarantor’s successor that Guarantees the Securities.

 

“Holders” shall mean the Initial Purchasers, for so long as they own any Registrable Securities, and each of their successors, assigns and direct and indirect transferees who become registered owners of Registrable Securities under the Indenture; provided that, for purposes of Section 4 and Section 5 hereof, the term “Holders” shall include Participating Broker-Dealers.

 

“Indemnified Person” shall have the meaning set forth in Section 5(c) hereof.

 

“Indemnifying Person” shall have the meaning set forth in Section 5(c) hereof.

 

“Indenture” shall mean the Indenture relating to the Securities dated as of June 18, 2024 among the Obligors and the Trustee, as trustee, as supplemented by a supplemental indenture dated as of June 18, 2024, and as the same may be further amended and supplemented from time to time in accordance with the terms thereof.

 

“Initial Purchasers” shall have the meaning set forth in the preamble.

 

“Inspector” shall have the meaning set forth in Section 3(a)(xiv) hereof.

 

“Issuer” shall have the meaning set forth in the preamble and shall also include the Issuer’s successors.

 

“Issuer Information” shall have the meaning set forth in Section 5(a) hereof.

 

“Majority Holders” shall mean the Holders of a majority of the aggregate principal amount of the outstanding Registrable Securities; provided that whenever the consent or approval of Holders of a specified percentage of Registrable Securities is required hereunder, any Registrable Securities owned directly or indirectly by the Issuer or any of its affiliates shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage or amount; and provided, further, that if the Issuer shall issue any additional Securities of the same series under the Indenture prior to consummation of the Exchange Offer or, if applicable, the effectiveness of any Shelf Registration Statement, such additional Securities and the Registrable Securities to which this Agreement relates shall be treated together as one class for purposes of determining whether the consent or approval of Holders of a specified percentage of Registrable Securities has been obtained.

 

“MJDS” means the U.S./Canada Multijurisdictional Disclosure System adopted by the SEC and Canadian securities regulators.

 

“Notice and Questionnaire” shall mean a notice of registration statement and selling security holder questionnaire distributed to a Holder by the Issuer upon receipt of a Shelf Request from such Holder.

 

“Nova Scotia Securities Laws” shall mean the Securities Act (Nova Scotia) and the rules, regulations and national, multijurisdictional or local instruments and published policy statements applicable in the Province of Nova Scotia, including the rules and procedures established pursuant to National Instrument 44-101 and, if applicable, National Instrument 44-102.

 

“NSSC” means the Nova Scotia Securities Commission.

 

“Participating Broker-Dealers” shall have the meaning set forth in Section 2(a) hereof.

 

“Participating Holder” shall mean any Holder of Registrable Securities that has returned a completed and signed Notice and Questionnaire to the Issuer in accordance with Section 2(b) hereof.

 

“Person” shall mean an individual, partnership, limited liability company, corporation, joint venture, association, joint stock company, trust or unincorporated organization, or a government or agency or political subdivision thereof.

 

“Prospectus” shall mean the prospectus included in, or, pursuant to the rules and regulations of the Securities Act and General Instruction II.L. to Form F-10, if applicable, deemed a part of, a Registration Statement, including any preliminary prospectus, and any such prospectus as amended or supplemented by any prospectus supplement, including a prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by a Shelf Registration Statement, and by all other amendments and supplements to such prospectus, and in each case including any document incorporated by reference therein.

 

“Purchase Agreement” shall have the meaning set forth in the preamble.

 

“Registrable Securities” shall mean the Securities; provided that the Securities shall cease to be Registrable Securities (i) when a Registration Statement with respect to such Securities has become effective under the Securities Act and such Securities have been exchanged or disposed of pursuant to such Registration Statement, (ii) when such Securities cease to be outstanding, (iii) when, in the case of a Holder of such Securities who was entitled to participate in the Exchange Offer, an Exchange Offer Registration Statement with respect to such Securities shall have been declared effective under the Securities Act and either (a) such Securities shall have been exchanged for Exchange Securities pursuant to the Exchange Offer or (b) such Securities were not tendered by the Holder thereof in the Exchange Offer or (iv) when such Securities have been sold to the public pursuant to Rule 144 (or any similar provision then in force, but not Rule 144A) under the Securities Act.

 

“Registration Default” shall mean the occurrence of any of the following: (i) the Exchange Offer is not completed on or prior to the Target Registration Date, (ii) the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or Section 2(b)(ii) hereof, has not become effective on or prior to the Target Registration Date, (iii) if the Issuer receives a Shelf Request pursuant to Section 2(b)(iii), the Shelf Registration Statement required to be filed thereby has not become effective by the later of (a) the Target Registration Date and (b) 90 days after delivery of such Shelf Request, (iv) the Shelf Registration Statement, if required by this Agreement, has become effective and thereafter ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 60 days (whether or not consecutive) in any 12-month period or (v) the Shelf Registration Statement, if required by this Agreement, has become effective and thereafter, on more than two occasions in any 12-month period during the Shelf Effectiveness Period, the

 

Shelf Registration Statement ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement.

 

“Registration Expenses” shall mean any and all reasonable expenses incident to performance of or compliance by the Obligors with this Agreement, including without limitation: (i) all NSSC, SEC, stock exchange or FINRA registration and filing fees, (ii) all fees and expenses incurred in connection with compliance with state securities or blue sky laws (including reasonable fees and disbursements of not more than one counsel in any particular jurisdiction for any Underwriters or Holders in connection with blue sky qualification of any Exchange Securities or Registrable Securities), (iii) all expenses of any Persons in preparing or assisting in preparing, word processing, printing and distributing any Registration Statement, any Prospectus, any Free Writing Prospectus and any amendments or supplements thereto, any underwriting agreements, securities sales agreements or other similar agreements and any other documents relating to the performance of and compliance with this Agreement, (iv) all rating agency fees, (v) all fees and disbursements relating to the qualification of the Indenture under applicable securities laws, (vi) the fees and disbursements of the Trustee and its counsel, (vii) the fees and disbursements of counsel for the Obligors and, in the case of a Shelf Registration Statement, the reasonable fees and disbursements of one counsel for the Participating Holders (which counsel shall be selected by the Participating Holders holding a majority of the aggregate principal amount of Registrable Securities held by such Participating Holders and which counsel may also be counsel for the Initial Purchasers) and (viii) the fees and disbursements of the independent registered public accountants of the Obligors, including the expenses of any special audits or “comfort” letters required by or incident to the performance of and compliance with this Agreement, but excluding fees and expenses of counsel to the Underwriters (other than fees and expenses set forth in clause (ii) above) or the Holders and underwriting discounts and commissions, brokerage commissions, out-of-pocket expenses incurred by the Holders and transfer taxes, if any, relating to the sale or disposition of Registrable Securities by a Holder.

 

“Registration Statement” shall mean any registration statement of the Obligors that covers any of the Exchange Securities or Registrable Securities pursuant to the provisions of this Agreement and all amendments and supplements to any such Registration Statement, including post-effective amendments, in each case including the Prospectus contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.

 

“Representatives” shall have the meaning set forth in the preamble.

 

“SEC” shall mean the United States Securities and Exchange Commission.

 

“Securities” shall have the meaning set forth in the preamble.

 

“Securities Act” shall mean the Securities Act of 1933, as amended from time to time.

 

“Shelf Effectiveness Period” shall have the meaning set forth in Section 2(b) hereof.

 

“Shelf Registration” shall mean a registration effected pursuant to Section 2(b) hereof.

 

“Shelf Registration Statement” shall mean a “shelf” registration statement of the Obligors that covers all or a portion of the Registrable Securities on an appropriate form under Rule 415 under the Securities Act or General Instruction II.L. to Form F-10, if applicable, or any similar rule that may be adopted by the SEC (which in the case of a registration statement prepared in part on Form F-10 shall include a Canadian Prospectus in the form of a base shelf prospectus contemplated by National Instrument 44-102 or a short form prospectus contemplated by National Instrument 44-101 or other appropriate form, prepared and filed with the NSSC under National Instrument 71-101), and all amendments and supplements to such registration statement, including post-effective amendments, in each case including the Prospectus contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.

 

“Shelf Request” shall have the meaning set forth in Section 2(b) hereof.

 

“Staff” shall mean the staff of the SEC.

 

“Target Registration Date” shall mean 365 days after the Closing Date.

 

“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended from time to time.

 

“Trustee” shall mean Equiniti Trust Company, LLC.

 

“Underwriter” shall have the meaning set forth in Section 3(f) hereof.

 

“Underwritten Offering” shall mean an offering in which Registrable Securities are sold to an Underwriter for reoffering to the public.

 

2.  Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Obligors shall use their reasonable best efforts to (x) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities and (y) have such Registration Statement become and remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker- Dealers, pursuant to Section 4 hereof. The Obligors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date and keep the Exchange Offer open for not less than 20 Business Days (or longer if required by applicable law) after the date notice of the Exchange Offer is sent to Holders pursuant to the next paragraph.

 

The Obligors shall commence the Exchange Offer by mailing or making available the related Prospectus, appropriate letters of transmittal and other accompanying documents, if any, to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:

 

(i)

that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for exchange;

 

(ii)

the dates of acceptance for exchange (which shall be a period of at least 20 Business Days from the date such notice is mailed or made available) (the “Exchange Dates”);

 

(iii)

that any Registrable Security not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein;

 

(iv)

that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and

 

(v)

that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) sending to the institution and at the address specified in the notice, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities.

 

As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Obligors, in writing (which may be contained in the applicable letter of transmittal), that (1) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (2) at the time of the commencement of the Exchange Offer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Registrable Securities from such Holder has an arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Issuer or any Guarantor, (4) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities (a “Participating Broker-Dealer”), that it has not engaged in, and does not intend to engage in, the distribution of Registrable

 

Securities and (5) if such Holder is a Participating Broker-Dealer, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities.

 

As soon as practicable after the last Exchange Date, the Obligors shall use their reasonable best efforts to:

 

(I)

accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and

 

(II)

deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer and issue, and cause the Trustee to promptly authenticate and deliver to the depository, one or more Exchange Securities in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture.

 

The Obligors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate any applicable law or applicable interpretations of the Staff.

 

For the avoidance of doubt, notwithstanding any provision of this Section 2(a) purporting to require physical mailing, delivery or acceptance of any document or instrument, the Obligors may conduct the Exchange Offer exclusively through the automated tender offer program of The Depository Trust Company (“DTC”) or any successor or similar system permitting electronic transmittal, tender and acceptance of documents and instruments, provided that this provision shall apply only to Registrable Securities held in the form of beneficial interests in a global note deposited with (or held by a custodian for) DTC.

 

(b)  In the event that (i) the Obligors determine that the Exchange Offer Registration provided for in Section 2(a) hereof is not available or the Exchange Offer may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) the Exchange Offer is not for any other reason completed by the Target Registration Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, in each case unless the Obligors have previously done so, the Obligors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective; provided that no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the Prospectus forming a part of such

 

Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Issuer as is contemplated by Section 3(b) hereof.

 

In the event that the Obligors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding paragraph, the Obligors shall use their reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer.

 

The Obligors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earliest of (A) the time when all such Securities covered by the Shelf Registration Statement can be sold pursuant to Rule 144 without any limitations by non-affiliates of the Obligors under clause (d) of Rule 144, (B) the date on which all such Securities are disposed of in accordance with the Shelf Registration Statement, (C) one year after the effective date of the Shelf Registration Statement, or (D) the Securities cease to be Registrable Securities (the “Shelf Effectiveness Period”). The Obligors further agree to supplement or amend the Shelf Registration Statement (which, in the case of a registration statement prepared in part on Form F-10 shall include a Canadian Prospectus or supplement thereto filed with the NSSC under National Instrument 71-101), the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Obligors for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Obligors agree to furnish or otherwise make available to the Participating Holders copies of any such supplement or amendment promptly after its being used or filed with the SEC.

 

(c)  The Obligors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. Each Holder shall pay all underwriting discounts and commissions, brokerage commissions, out-of-pocket expenses incurred by such Holder and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.

 

(d)  An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC, except to the extent that an Exchange Offer Registration Statement prepared in part on Form F-10 has otherwise become effective in accordance with the MJDS. A Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC or is automatically

 

effective upon filing with the SEC as provided by Rule 462 or Rule 467 under the Securities Act.

 

If a Registration Default occurs, the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following such Registration Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period (it being understood and agreed that, notwithstanding any provision to the contrary, so long as any Securities not registered under an Exchange Offer Registration Statement are then covered by a Shelf Registration, no additional interest shall accrue on such Securities), in each case until and including the date such Registration Default ends, up to a maximum increase of 0.50% per annum; provided that in no event shall the additional interest on the Securities exceed 0.50% per annum; provided, further, that in no event shall the Obligors be obligated to pay additional interest under more than one Registration Default at any one time. A Registration Default ends when the Securities cease to be Registrable Securities or, if earlier, (1) in the case of a Registration Default under clause (i) of the definition thereof, when the Exchange Offer is completed, (2) in the case of a Registration Default under clause (ii) or clause (iii) of the definition thereof, when the Shelf Registration Statement becomes effective or (3) in the case of a Registration Default under clause (iv) or clause (v) of the definition thereof, when the Shelf Registration Statement again becomes effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no Registration Default.

 

Notwithstanding anything to the contrary, any additional interest payable under this Agreement shall cease to accrue on and after the date on which all Registration Defaults have been cured (which, for the avoidance of doubt, shall not, however, affect the Obligors’ obligations hereunder to pay additional interest that has accrued to such date and that remains unpaid).

 

(e)  Without limiting the remedies available to the Initial Purchasers and the Holders, the Obligors acknowledge that any failure by the Issuer or the Guarantors to comply with their obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Obligors’ obligations under Section 2(a) and Section 2(b) hereof.

 

(f)  No Holder of Registrable Securities may include any of its Registrable Securities in any Shelf Registration unless and until such Holder furnishes to the Obligors, in writing within 30 days after receipt of a request therefor, the information with respect to such Holder (i) specified in Items 507 and 508 (as applicable) of Regulation S-K under the Securities Act and (ii) specified in any other applicable rules,

 

regulations or policies of the SEC for use in connection with any Shelf Registration or Prospectus included therein, on a form to be provided by the Obligors or reasonably requested by the Obligors. No Holder of Registrable Securities shall be entitled to additional interest if a Registration Default occurs unless and until such Holder shall have provided all such information. Each selling Holder agrees to furnish promptly to the Obligors additional information to be disclosed so that the information previously furnished to the Obligors by such Holder does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.

 

(g)  Additional interest shall not accrue with respect to an event listed in clause (ii), (iii), (iv) or (v) of the definition of “Registration Default” (each, a “Shelf Effectiveness Registration Default”) if (i) such Shelf Effectiveness Registration Default under clause (iv) or (v) of the definition of “Registration Default” occurs because of the filing of a post-effective amendment to a Shelf Registration Statement to incorporate annual audited financial information with respect to the Obligors where such post- effective amendment is not yet effective and needs to be declared effective to permit Holders to use the related Prospectus, (ii) such Shelf Effectiveness Registration Default occurs in respect of a Shelf Registration because of the occurrence of other material events or developments with respect to the Obligors that would need to be described in such Registration Statement or the related Prospectus, and the effectiveness of such Registration Statement is reasonably required to be suspended while such Registration Statement and related Prospectus are amended or supplemented to reflect such events or developments, or (iii) such Shelf Effectiveness Registration Default occurs in respect of a Shelf Registration because the Obligors exercise their rights under Section 3(a)(x)(b) hereof not to amend or supplement such Shelf Registration Statement, any related Prospectus or any document incorporated or deemed to be incorporated therein by reference, for the limited periods stated therein.

 

(h)  Additional interest due on the Securities pursuant to Section 2(d) hereof will be payable in cash semiannually in arrears on the same interest payment dates as the Securities, commencing with the first interest payment date occurring after any such additional interest commences to accrue.

 

3.  Registration Procedures. (a) In connection with their obligations pursuant to Section 2(a) and Section 2(b) hereof, the Obligors shall use their reasonable best efforts to:

 

(i)  prepare and file with the SEC a Registration Statement on the appropriate form under the Securities Act, which form (A) shall be selected by the Obligors, (B) shall, in the case of a Shelf Registration, be available for the sale of the Registrable Securities by the Holders thereof and (C) shall comply as to form in all material respects with the requirements of the applicable form and include (including through incorporation by reference, if available to the Obligors) all financial statements required by the NSSC and SEC to be filed therewith; and use their reasonable best efforts to cause such Registration Statement to become effective and remain effective for the applicable period in accordance with Section 2 hereof;

 

(ii)  prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement effective for the applicable period in accordance with Section 2 hereof and, except as provided in Section 3(a)(x)(b) hereof, cause each Prospectus to be supplemented by any prospectus supplement required by applicable law and, as so supplemented, to be filed pursuant to Rule 424 under the Securities Act or, to the extent applicable, General Instruction II.L. to Form F-10; and keep each Prospectus current during the period described in Section 4(3) of and Rule 174 under the Securities Act that is applicable to transactions by brokers or dealers with respect to the Registrable Securities or Exchange Securities;

 

(iii)  to the extent any Free Writing Prospectus is used, file with the SEC any Free Writing Prospectus that is required to be filed by the Issuer or the Guarantors with the SEC in accordance with the Securities Act and to retain any Free Writing Prospectus not required to be filed;

 

(iv)  in the case of a Shelf Registration, furnish to each Participating Holder, to counsel for the Initial Purchasers, to counsel for such Participating Holders and to each Underwriter of an Underwritten Offering of Registrable Securities, if any (if any Registrable Securities held by the Initial Purchasers are included in the Shelf Registration Statement), without charge, as many copies of each Prospectus, preliminary prospectus or Free Writing Prospectus, and any amendment or supplement thereto, as such Participating Holder, counsel or Underwriter may reasonably request in order to facilitate the sale or other disposition of the Registrable Securities thereunder; and, subject to Section 3(c) hereof, the Obligors consent to the use of such Prospectus, preliminary prospectus or such Free Writing Prospectus and any amendment or supplement thereto in accordance with applicable law by each of the Participating Holders and any such Underwriters in connection with the offering and sale of the Registrable Securities covered by and in the manner described in such Prospectus, preliminary prospectus or such Free Writing Prospectus or any amendment or supplement thereto in accordance with applicable law;

 

(v)  in the case of a Shelf Registration, use their reasonable best efforts to register or qualify the Registrable Securities under all applicable state securities or blue sky laws of such jurisdictions as any Participating Holder shall reasonably request in writing by the time the applicable Registration Statement becomes effective; cooperate with such Participating Holders in connection with any filings required to be made with FINRA; and do any and all other acts and things that may be reasonably necessary or advisable to enable each Participating Holder to complete the disposition in each such jurisdiction of the Registrable Securities owned by such Participating Holder; provided that neither the Issuer nor any Guarantor shall be required to (1) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify but for the requirements of this Section 3(a)(v), (2) file any general consent to service of process in any such jurisdiction, (3) subject itself to taxation in any such jurisdiction if it is not so subject or (4) make any changes to its incorporating organization documents;

 

(vi)  notify counsel for the Initial Purchasers and, in the case of a Shelf Registration, notify each Participating Holder and counsel for such Participating Holders promptly and, if requested by any such Participating Holder or counsel, confirm such advice in writing (1) when a Registration Statement has become effective, when any post- effective amendment thereto has been filed and becomes effective, when any Free Writing Prospectus has been filed or any amendment or supplement to the Prospectus or any Free Writing Prospectus has been filed, (2) of any request by the SEC, any state securities authority, or the NSSC for amendments and supplements to a Registration Statement, Prospectus or any Free Writing Prospectus or for additional information after the Registration Statement has become effective, (3) of the issuance by the SEC, any state securities authority, the NSSC or any Canadian securities regulator of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, including the receipt by the Issuer of any notice of objection of the SEC, the NSSC or any Canadian securities regulator to the use of a Shelf Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act, (4) if, between the applicable effective date of a Shelf Registration Statement and the closing of any sale of Registrable Securities covered thereby, the representations and warranties of the Issuer or any Guarantor contained in any underwriting agreement, securities sales agreement or other similar agreement, if any, relating to an offering of such Registrable Securities cease to be true and correct in all material respects or if the Issuer or any Guarantor receives any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose, (5) of the happening of any event during the period a Registration Statement is effective that makes any statement made in such Registration Statement or the related Prospectus or any Free Writing Prospectus untrue in any material respect or that requires the making of any changes in such Registration Statement or Prospectus or any Free Writing Prospectus in order to make the statements therein not misleading and (6) of any determination by the Issuer or any Guarantor that a post-effective amendment to a Registration Statement or any amendment or supplement to the Prospectus or any Free Writing Prospectus would be appropriate; provided, however, that, in the case of clauses (4), (5) and (6), with respect to any event, development or transaction permitted to be kept confidential without the accrual of additional interest under Section 2(g) hereof, the Obligors shall not be required to describe such event, development or transaction in the written notice provided;

 

(vii)  use their reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement or, in the case of a Shelf Registration, the resolution of any objection of the SEC pursuant to Rule 401(g)(2) under the Securities Act, including by filing an amendment to such Registration Statement on the proper form, as soon as practicable and provide prompt notice to each Holder or Participating Holder of the withdrawal of any such order or such resolution;

 

(viii)  in the case of a Shelf Registration, furnish to each Participating Holder, without charge, at least one conformed copy of each Registration Statement and any post- effective amendment thereto (without any documents incorporated therein by reference or exhibits thereto, unless requested);

 

(ix)  in the case of a Shelf Registration, cooperate with the Participating Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends and enable such Registrable Securities to be issued in such denominations and registered in such names (consistent with the provisions of the Indenture) as such Participating Holders may reasonably request at least one Business Day prior to the closing of any sale of Registrable Securities;

 

(x)  (a) upon the occurrence of any event contemplated by Section 3(a)(vi)(5) hereof, use their reasonable best efforts to prepare and file with the SEC and the NSSC, as applicable, a supplement or post-effective amendment to the applicable Exchange Offer Registration Statement or Shelf Registration Statement or the related Prospectus or any Free Writing Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered (or, to the extent permitted by law, made available) to purchasers of the Registrable Securities, such Prospectus or Free Writing Prospectus, as the case may be, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and the Obligors shall notify the Participating Holders (in the case of a Shelf Registration Statement) and the Initial Purchasers and any Participating Broker-Dealers known to the Issuer (in the case of an Exchange Offer Registration Statement) to suspend use of the Prospectus or any Free Writing Prospectus as promptly as practicable after the occurrence of such an event, and such Participating Holders, such Participating Broker-Dealers and the Initial Purchasers, as applicable, hereby agree to suspend use of the Prospectus or any Free Writing Prospectus, as the case may be, until the Obligors have amended or supplemented the Prospectus or the Free Writing Prospectus, as the case may be, to correct such misstatement or omission and expressly agree to maintain the information contained in such notice confidential (except that such information may be disclosed to their counsel) until it has been publicly disclosed by the Obligors.

 

(b) notwithstanding the foregoing, the Obligors shall not be required to amend or supplement a Registration Statement, any related Prospectus or any document incorporated or deemed to be incorporated therein by reference if (i) an event occurs and is continuing as a result of which the Shelf Registration, any related Prospectus or any document incorporated or deemed to be incorporated therein by reference, would, in the Obligors’ good faith judgment, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading (with respect to such a Prospectus only, in the light of the circumstances under which they were made), and (ii) (a) the Obligors determine in their good faith judgment that the disclosure of such event at such time would have a material adverse effect on the business, operations or prospects of the Obligors, or (b) the disclosure otherwise relates to a pending material business transaction that has not yet been publicly disclosed; provided, however, that the Obligors may only suspend the offering and sale of Securities under a Shelf Registration Statement pursuant to this clause (x) for a period or periods not in excess of 60 consecutive days or more than two (2) times during any 12-month period during which such Shelf Registration Statement is required to be effective and usable hereunder;

 

(xi)  a reasonable time prior to the filing of any Registration Statement, any Prospectus, any Free Writing Prospectus, any amendment to a Registration Statement or amendment or supplement to a Prospectus or a Free Writing Prospectus or of any document that is to be incorporated by reference into a Registration Statement, a Prospectus or a Free Writing Prospectus after initial filing of a Registration Statement, provide copies of such document to the Initial Purchasers and their counsel (and, in the case of a Shelf Registration Statement, to the Participating Holders and their counsel) and make such of the representatives of the Obligors as shall be reasonably requested by the Initial Purchasers or their counsel (and, in the case of a Shelf Registration Statement, the Participating Holders or their counsel) available for discussion of such document, provided that the Initial Purchasers, the Participating Holders and their respective counsel shall agree to take such actions as are reasonably necessary to protect the confidentiality of any material non-public information provided; and the Obligors shall not, at any time after initial filing of a Registration Statement, use or file any Prospectus, any Free Writing Prospectus, any amendment of or supplement to a Registration Statement or a Prospectus or a Free Writing Prospectus, or any document that is to be incorporated by reference into a Registration Statement, a Prospectus or a Free Writing Prospectus, of which the Initial Purchasers and their counsel (and, in the case of a Shelf Registration Statement, the Participating Holders and their counsel) shall not have previously been advised and furnished a copy or to which the Initial Purchasers or their counsel (and, in the case of a Shelf Registration Statement, the Participating Holders or their counsel) shall reasonably object on a timely basis;

 

(xii)  obtain a CUSIP number for all Exchange Securities or Registrable Securities, as the case may be, not later than the initial effective date of a Registration Statement;

 

(xiii)  cause the Indenture to be qualified under the Trust Indenture Act in connection with the registration of the Exchange Securities or Registrable Securities, as the case may be, reasonably cooperate with the Trustee and the Holders to effect such changes to the Indenture as may be required for the Indenture to be so qualified in accordance with the terms of the Trust Indenture Act; and execute, and use their reasonable best efforts to cause the Trustee to execute, all documents as may be required to effect such changes and all other forms and documents required to be filed with the SEC to enable the Indenture to be so qualified in a timely manner;

 

(xiv)  in the case of a Shelf Registration upon reasonable notice, make available for inspection by a representative of the Participating Holders (an “Inspector”), any Underwriter participating in any disposition pursuant to such Shelf Registration Statement, any attorneys and accountants designated by a majority in aggregate principal amount of the Securities held by the Participating Holders and any attorneys and accountants designated by such Underwriter, at reasonable times and in a reasonable manner, all pertinent financial and other records, documents and properties of Emera and its subsidiaries as shall be reasonably necessary to enable them to exercise any applicable due diligence responsibilities, and cause the respective officers, directors and employees of the Obligors to supply all information reasonably requested by any such Inspector, Underwriter, attorney or accountant in connection with their due diligence

 

responsibilities under a Shelf Registration Statement; provided that each such Underwriter, attorney or accountant shall agree in writing that it will keep such information confidential and that it will not disclose any of the information that the Obligors determine, in good faith, to be confidential and notify them in writing are confidential unless (i) the disclosure of such information is necessary to avoid or correct a material misstatement or material omission in such Registration Statement or Prospectus, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, or (iii) the information in has been made generally available to the public other than by any of such persons or its affiliates; provided, however, that prior notice shall be provided as soon as practicable to the Obligors of the potential disclosure of any information by such person pursuant to clause (i) or (ii) of this sentence in order to permit the Obligors to obtain a protective order (or waive the provisions of this paragraph (xiv));

 

(xvi)  if reasonably requested by any Participating Holder, promptly include in a Prospectus supplement or post-effective amendment such information with respect to such Participating Holder as such Participating Holder reasonably requests to be included therein and make all required filings of such Prospectus supplement or such post- effective amendment promptly after the Issuer has received notification of the matters to be so included in such filing;

 

(xvii)  if reasonably requested by the Majority Holders of the Registrable Securities being sold in the case of a Shelf Registration, enter into such customary agreements and use reasonable best efforts to facilitate the disposition of such Registrable Securities including, but not limited to, an Underwritten Offering and in such connection, (1) to the extent possible, make such representations and warranties to the Participating Holders and any Underwriters of such Registrable Securities with respect to the business of Emera and its subsidiaries and the Registration Statement, Prospectus, any Free Writing Prospectus and documents incorporated by reference or deemed incorporated by reference, if any, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings and confirm the same in writing if and when required by the applicable purchase agreement, (2) obtain opinions of counsel to the Obligors (which counsel and opinions, in form, scope and substance, shall be reasonably satisfactory to the Participating Holders and such Underwriters and their respective counsel) addressed to each Participating Holder and Underwriter of Registrable Securities, covering the matters customarily covered in opinions requested in underwritten offerings, (3) obtain “comfort” letters from the independent registered public accountants of the Obligors (and, if necessary, any other registered public accountant of any subsidiary of the Issuer or any Guarantor, or of any business acquired by the Issuer or any Guarantor for which financial statements and financial data are or are required to be included in the Registration Statement) addressed to each Participating Holder (to the extent permitted by applicable professional standards) and Underwriter of Registrable Securities, such letters to be in customary form and covering matters of the type customarily covered in “comfort” letters in connection with underwritten offerings, including but not limited to financial information contained in any preliminary prospectus, Prospectus or Free Writing Prospectus and (4) deliver such documents and certificates as may be reasonably requested by the Majority Holders of the Registrable

 

Securities being sold or the Underwriters, and which are customarily delivered in underwritten offerings, to evidence the continued validity of the representations and warranties of the Obligors made pursuant to clause (1) above and to evidence compliance with any customary conditions contained in an underwriting agreement;

 

(b)  In the case of a Shelf Registration Statement, the Issuer may require each Holder of Registrable Securities to furnish to the Issuer a Notice and Questionnaire and such other information regarding such Holder and the proposed disposition by such Holder of such Registrable Securities as the Obligors may from time-to-time reasonably request in writing;

 

(c)  In the case of a Shelf Registration Statement, the Obligors may require each Holder of Registrable Securities to furnish to the Obligors such information regarding the Holder and the proposed distribution by such Holder of such Registrable Securities as the Obligors may from time-to-time reasonably request in writing. The Obligors may exclude from such registration the Registrable Securities or Exchange Securities of any Holder so long as such Holder fails to furnish such information within a reasonable time after receiving such request. Each Holder as to which any Shelf Registration is being effected agrees to furnish promptly to the Obligors all information required to be disclosed in order to make the information previously furnished to the Obligors by such Holder not materially misleading;

 

(d)  In the case of a Shelf Registration Statement, each Participating Holder agrees that, upon receipt of any notice from the Obligors of the happening of any event of the kind described in Section 3(a)(vi)(3) or Section 3(a)(vi)(5) hereof, such Participating Holder will forthwith discontinue disposition of Registrable Securities pursuant to the Shelf Registration Statement until such Participating Holder’s receipt of the copies of the supplemented or amended Prospectus and any Free Writing Prospectus contemplated by Section 3(a)(x) hereof and, if so directed by the Obligors, such Participating Holder will deliver to the Obligors (at their expense) all copies in its possession, other than permanent file copies then in such Participating Holder’s possession, of the Prospectus and any Free Writing Prospectus covering such Registrable Securities that is current at the time of receipt of such notice.

 

(e)  If the Obligors shall give any notice to suspend the disposition of Registrable Securities pursuant to a Registration Statement, the Obligors shall extend the period during which such Registration Statement shall be maintained effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such notice to and including the date when the Holders of such Registrable Securities shall have received copies of the supplemented or amended Prospectus or any Free Writing Prospectus necessary to resume such dispositions. The Obligors may give any such notice for a period or periods not in excess of 60 consecutive days or more than two (2) times during any 12-month period.

 

(f)  The Participating Holders who desire to do so may sell such Registrable Securities in an Underwritten Offering. In any such Underwritten Offering, the investment bank or investment banks and manager or managers (each an “Underwriter”)

 

that will administer the offering will be selected by the Majority Holders of the Registrable Securities included in such offering.

 

4.  Participation of Broker-Dealers in Exchange Offer. (a) The Staff has taken the position that any Participating Broker-Dealer may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Securities.

 

The Obligors understand that it is the Staff’s position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker- Dealers may resell the Exchange Securities, without naming the Participating Broker- Dealers or specifying the amount of Exchange Securities owned by them, such Prospectus may be delivered by Participating Broker-Dealers (or, to the extent permitted by law, made available to purchasers) to satisfy their prospectus delivery obligation under the Securities Act in connection with resales of Exchange Securities for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act.

 

(b)  In light of the above, and notwithstanding the other provisions of this Agreement, the Obligors agree to amend or supplement the Prospectus contained in the Exchange Offer Registration Statement for a period of up to 180 days after the last Exchange Date (as such period may be extended pursuant to Section 3(e) hereof), in order to expedite or facilitate the disposition of any Exchange Securities by Participating Broker-Dealers consistent with the positions of the Staff recited in Section 4(a) above; provided that:

 

(i) the Obligors shall not be required to amend or supplement the Prospectus contained in the Exchange Offer Registration Statement, as would otherwise be contemplated by Section 3(a)(x), for a period exceeding 180 days after the last Exchange Date (as such period may be extended pursuant to the penultimate paragraph of Section 3 of this Agreement) and Participating Broker- Dealers shall not be authorized by the Obligors to deliver and shall not deliver such Prospectus after such period in connection with the resales contemplated by this Section 4; and

 

(ii)  the application of the Shelf Registration procedures set forth in Section 3 of this Agreement to an Exchange Offer Registration, to the extent not required by the positions of the Staff or the Securities Act and the rules and regulations thereunder, will be in conformity with the reasonable request to the Obligors by the Initial Purchasers or with the reasonable request in writing to the Obligors by one or more broker-dealers who certify to the Initial Purchasers and the Obligors in writing that they anticipate that they will be Participating Broker- Dealers (or other Holders with similar prospectus delivery obligations); and provided further that, in connection with such application of the Shelf Registration procedures set forth in Section 3 to an Exchange Offer Registration,

 

 

the Obligors shall be obligated (x) to deal only with four entities representing the Participating Broker-Dealers (and such other Holders with similar prospectus delivery obligations), which shall be Morgan Stanley & Co. LLC, MUFG Securities Americas Inc. and RBC Capital Markets, LLC unless any entity elects not to act as such representative, (y) to pay the fees and expenses of only one counsel representing the Participating Broker-Dealers (and such other Holders with similar prospectus delivery obligations), which shall be counsel to the Initial Purchasers unless such counsel elects not to so act and (z) to cause to be delivered only one, if any, “comfort” letter with respect to the Prospectus in the form existing on the last effective date of such Registration Statement and with respect to each subsequent amendment or supplement, if any, effected during the period specified in clause (i) above.

  

The Obligors further agree that Participating Broker-Dealers shall be authorized to deliver such Prospectus (or, to the extent permitted by law, make available) during such period in connection with the resales contemplated by this Section 4.

 

(c)  The Initial Purchasers shall have no liability to the Issuer, any Guarantor or any Holder with respect to any request that they may make pursuant to Section 4(b) hereof.

 

5.  Indemnification and Contribution. (a) The Issuer and each Guarantor, jointly and severally, agree to indemnify and hold harmless each Initial Purchaser and each Holder, their respective affiliates, directors and officers and each Person, if any, who controls any Initial Purchaser or any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and other expenses reasonably incurred in connection with any suit, action or proceeding or any claim asserted), joint or several, that arise out of, or are based upon, (1) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or (2) any untrue statement or alleged untrue statement of a material fact contained in any Prospectus, any Free Writing Prospectus or any “issuer information” (“Issuer Information”) filed or required to be filed pursuant to Rule 433(d) under the Securities Act, or any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Initial Purchaser or information relating to any Holder furnished to the Issuer in writing through the Representatives or any selling Holder, respectively, expressly for use therein. In connection with any Underwritten Offering permitted by Section 3, the Obligors, jointly and severally, will also indemnify the Underwriters, if any, selling brokers, dealers and similar securities industry professionals participating in the distribution, their officers and directors and each Person who controls such Persons (within the meaning of the Securities Act and the Exchange Act) to the

 

same extent as provided above with respect to the indemnification of the Holders, if requested in connection with any Registration Statement, any Prospectus, any Free Writing Prospectus or any Issuer Information.

 

(b)  Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Issuer, the Guarantors, the Initial Purchasers and the other selling Holders, the directors of the Obligors, each officer of the Obligors who signed the Registration Statement and each Person, if any, who controls the Issuer, the Guarantors, any Initial Purchaser and any other selling Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Holder furnished to the Issuer in writing by such Holder expressly for use in any Registration Statement, any Prospectus and any Free Writing Prospectus.

 

(c)  If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any Person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b above, such Person (the “Indemnified Person”) shall promptly notify the Person against whom such indemnification may be sought (the “Indemnifying Person”) in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have under paragraph (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided, further, that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b) above. If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and any others entitled to indemnification pursuant to this Section 5 that the Indemnifying Person may designate in such proceeding and shall pay the fees and expenses of such proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be

 

reimbursed as they are incurred. Any such separate firm (x) for any Initial Purchaser, its affiliates, directors and officers and any control Persons of such Initial Purchaser shall be designated in writing by the Representatives, (y) for any Holder, its directors and officers and any control Persons of such Holder shall be designated in writing by the Majority Holders and (z) in all other cases shall be designated in writing by the Issuer. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (A) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (B) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.

 

(d)  If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Obligors from the offering of the Securities and the Exchange Securities, on the one hand, and by the Holders from receiving Securities or Exchange Securities registered under the Securities Act, on the other hand, or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Obligors on the one hand and Holders on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault of the Obligors on the one hand and the Holders on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Obligors or by the Holders and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.

 

(e)  The Issuer, the Guarantors and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 5 were determined by pro rata

 

allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such Indemnified Person in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5, in no event shall a Holder be required to contribute any amount in excess of the amount by which the total price at which the Securities or Exchange Securities sold by such Holder exceeds the amount of any damages that 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. The Holders’ obligations to contribute pursuant to this Section 5 are several and not joint.

 

(f)  The remedies provided for in this Section 5 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.

 

(g)  The indemnity and contribution provisions contained in this Section 5 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the Initial Purchasers or any Holder or any Person controlling any Initial Purchaser or any Holder, or by or on behalf of the Issuer or the Guarantors or the officers or directors of or any Person controlling the Issuer or the Guarantors, (iii) acceptance of any of the Exchange Securities and (iv) any sale of Registrable Securities pursuant to a Shelf Registration Statement.

 

6.  General.

 

(a)  No Inconsistent Agreements. The Obligors represent, warrant and agree that (i) the rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted to the holders of any other outstanding securities issued or guaranteed by the Issuer or any Guarantor under any other agreement and (ii) neither the Issuer nor any Guarantor has entered into, or on or after the date of this Agreement will enter into, any agreement that is inconsistent with the rights granted to the Holders of Registrable Securities in this Agreement or otherwise conflicts with the provisions hereof.

 

(b)  Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given unless the Obligors have obtained the written consent of the Majority Holders of the outstanding Registrable Securities affected by such amendment, modification, supplement, waiver or consent; provided that no amendment, modification, supplement, waiver or consent to any departure from the provisions of Section 5 hereof shall be effective as against any Holder of Registrable Securities unless consented to in writing by such Holder. Any

 

amendments, modifications, supplements, waivers or consents pursuant to this Section 6(b) shall be by a writing executed by each of the parties hereto.

 

(c)  Judgment Currency. In respect of any judgment or order given or made for any amount due hereunder that is expressed and paid in a currency (the “judgment currency”) other than United States dollars, the Obligors, joint and severally, will indemnify each Initial Purchaser against any loss incurred by such Initial Purchaser as a result of any variation as between (i) the rate of exchange at which the United States dollar amount is converted into the judgment currency for the purpose of such judgment or order and (ii) the rate of exchange at which an Initial Purchaser is able to purchase United States dollars with the amount of judgment currency actually received by such Initial Purchaser. The foregoing indemnity shall constitute a separate and independent obligation of the Obligors and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of or conversion into United States dollars.

 

(d)  Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, registered first-class mail, telecopier, electronic transmission or any courier guaranteeing overnight delivery:

 

(i)  if to a Holder, at the most current address given by such Holder to the Issuer by means of a notice given in accordance with the provisions of this Section 6(d), which address initially is, with respect to the Initial Purchasers, the address set forth in the Purchase Agreement;

 

(ii)  if to the Obligors:

 

Emera Incorporated
5151 Terminal Road
Halifax, Nova Scotia B3J 1A1
Attention: Brian C. Curry, Corporate Secretary
Fax No.: (902) 428-6171
Email: brian.curry@emera.com with a copy to:

 

Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, New York 10017
Attention: Byron B. Rooney
Fax No.: (212) 701-5658
Email: byron.rooney@davispolk.com; and

 

(iii)  to such other persons at their respective addresses as provided in the Purchase Agreement and thereafter at such other address, notice of which is given in accordance with the provisions of this Section 6(d).

 

All such notices and communications shall be deemed to have been duly given at the time delivered by hand, if personally delivered; five Business Days after being

 

deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged, if telecopied or electronically transmitted; and on the next Business Day if timely delivered to an air courier guaranteeing overnight delivery. Copies of all such notices, demands or other communications shall be concurrently delivered by the Person giving the same to the Trustee, at the address specified in the Indenture to the extent required by the Indenture or applicable law.

 

(e)  Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors, assigns and transferees of each of the parties, including, without limitation and without the need for an express assignment, subsequent Holders; provided that nothing herein shall be deemed to permit any assignment, transfer or other disposition of Registrable Securities in violation of the terms of the Purchase Agreement or the Indenture. If any transferee of any Holder shall acquire Registrable Securities in any manner, whether by operation of law or otherwise, such Registrable Securities shall be held subject to all the terms of this Agreement, and by taking and holding such Registrable Securities such Person shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement and such Person shall be entitled to receive the benefits hereof. The Initial Purchasers (in their capacity as Initial Purchasers) shall have no liability or obligation to the Issuer or the Guarantors with respect to any failure by a Holder to comply with, or any breach by any Holder of, any of the obligations of such Holder under this Agreement.

 

(f)  Third Party Beneficiaries. Each Holder shall be a third-party beneficiary to the agreements made hereunder between the Obligors, on the one hand, and the Initial Purchasers, on the other hand, and shall have the right to enforce such agreements directly to the extent it deems such enforcement necessary or advisable to protect its rights or the rights of other Holders hereunder.

 

(g)  Counterparts; Electronic Signatures. This Agreement may be signed in counterparts (which may include counterparts delivered by any standard form of telecommunication), each of which shall be an original and all of which together shall constitute one and the same instrument. The words “execution,” “executed,” “signed,” signature,” and words of like import in this Agreement or in any other certificate, agreement or document related to this Agreement shall include images of manually executed signatures transmitted by facsimile, email or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.

 

(h)  Headings. The headings in this Agreement are for convenience of reference only, are not a part of this Agreement and shall not limit or otherwise affect the meaning hereof.

 

(i)  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.

 

(j)  Submission to Jurisdiction; Agent for Service; Waiver of Immunity. The Obligors hereby submit to the exclusive jurisdiction of the U.S. federal and New York state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. The Obligors waive any objection which it may now or hereafter have to the laying of venue of any such suit or proceeding in such courts. The Obligors agree that final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon the Obligors and may be enforced in any court to the jurisdiction of which the Obligors, as applicable, is subject by a suit upon such judgment. The Obligors have appointed Emera US Finance LP, as its authorized agent (the “Authorized Agent”) upon whom process may be served in any such action arising out of or based on this Agreement or the transactions contemplated hereby which may be instituted in any New York Court by any Initial Purchaser or by any person who controls any Initial Purchaser, expressly consents to the jurisdiction of any such court in respect of any such action, and waives any other requirements of or objections to personal jurisdiction with respect thereto. Such appointment shall be irrevocable and in full force and effect so long as any securities are outstanding. The Obligors represent and warrant that the Authorized Agent has agreed to act as such agent for service of process and agrees to take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent and written notice of such service to the Obligors shall be deemed, in every respect, effective service of process upon the Obligors.

 

To the extent that the Issuer or any Guarantor has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, it hereby irrevocably waives such immunity in respect of its obligations under the above-referenced documents, to the extent permitted by law.

 

The provisions of this Section 6(j) shall survive any termination of this Agreement, in whole or in part.

 

(k)  Entire Agreement; Severability. This Agreement contains the entire agreement between the parties relating to the subject matter hereof and supersedes all oral statements and prior writings with respect thereto. If any term, provision, covenant or restriction contained in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable or against public policy, the remainder of the terms,

 

provisions, covenants and restrictions contained herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated. The Issuer, the Guarantors and the Initial Purchasers shall endeavor in good faith negotiations to replace the invalid, void or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, void or unenforceable provisions.

 

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

 

	EUSHI FINANCE, INC.
	By:	/s/ Brian C. Curry
	Name:	Brian C. Curry
	Title:	Corporate Secretary

	By:	/s/ Gregory W. Blunden
	Name:	Gregory W. Blunden
	Title:	Director

	EMERA INCORPORATED, as Guarantor
	By:	/s/ Brian C. Curry
	Name:	Brian C. Curry
	Title:	Corporate Secretary

	By:	/s/ Gregory W. Blunden
	Name:	Gregory W. Blunden
	Title:	Director

	EMERA US HOLDINGS INC., as Guarantor
	By:	/s/ Brian C. Curry
	Name:	Brian C. Curry
	Title:	Corporate Secretary

	By:	/s/ Gregory W. Blunden
	Name:	Gregory W. Blunden
	Title:	Director

 

Confirmed and accepted as of the date first above written:

 

MORGAN STANLEY & CO. LLC
By:	/s/ Natalie Smithson
Name:	Natalie Smithson
Title:	Vice President

MUFG SECURITIES AMERICAS INC.
By:	/s/ Lee Schreibstein
Name:	Lee Schreibstein
Title:	Managing Director

RBC CAPITAL MARKETS, LLC
By:	/s/ Scott G. Primrose
Name:	Scott G. Primrose
Title:	Authorized Signatory

For themselves and on behalf of the
several Initial Purchasers listed in Schedule 1
to the Purchase Agreement

 

 

			draft
	davispolk.com	Davis Polk & Wardwell llp 450 Lexington Avenue New York, NY 10017

 

Exhibits 5.1 and 23.2

 

November 15, 2024

 

EUSHI Finance, Inc.
37 Route 236

Kittery Properties Suite 101 

Kittery, ME 03904

 

Ladies and Gentlemen:

 

We have acted as special counsel to EUSHI Finance, Inc., a Delaware corporation (the “Company”), as issuer, and Emera Incorporated, a Nova Scotia company (“Emera”), and Emera US Holdings, Inc., a Delaware corporation (“EUSHI”), as guarantors (the “Guarantors”) in connection with the Company’s offer (the “Exchange Offer”) to exchange its 7.625% Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2054 (the “New Notes” and, together with the related guarantees by the Guarantors (the “New Guarantees”), collectively, the “New Securities”), issued pursuant to an indenture dated as of June 18, 2024 (the “Base Indenture”), as amended and supplemented by a first supplemental indenture dated as of June 18, 2024 (the “First Supplemental Indenture,” and, together with the Base Indenture, the “Indenture”), among the Company, the Guarantors and Equiniti Trust Company, LLC, as trustee, for any and all of its outstanding 7.625% Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2054 (the “Old Notes” and, together with the related guarantees by the Guarantors (the “Old Guarantees”), collectively, the “Old Securities”) pursuant to the registration statement on Form F-10/S-4 (the “Registration Statement”) filed by the Company and the Guarantors with the Securities and Exchange Commission.

 

We, as your counsel, have examined originals or copies of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion.

 

In rendering the opinion expressed herein, we have, without independent inquiry or investigation, assumed that (i) all documents submitted to us as originals are authentic and complete, (ii) all documents submitted to us as copies conform to authentic, complete originals, (iii) all signatures on all documents that we reviewed are genuine, (iv) all natural persons executing documents had and have the legal capacity to do so, (v) all statements in certificates of public officials and officers of the Company and the Guarantors that we reviewed were and are accurate and (vi) all representations made by the Company and the Guarantors as to matters of fact in the documents that we reviewed were and are accurate.

 

Based upon the foregoing, and subject to the additional assumptions and qualifications set forth below, assuming that the New Guarantees have been duly authorized, executed and delivered by Emera insofar as the laws of the Province of Nova Scotia are concerned, we are of the opinion that the New Securities, when the New Securities are executed, authenticated and delivered in exchange for the Old Securities in accordance with the terms of the Indenture and the Exchange Offer, will constitute valid and binding obligations of the Company and the Guarantors, as applicable, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, and may be subject to possible judicial or regulatory actions giving effect to governmental actions or foreign laws affecting creditors' rights, provided that we express no opinion as to the (w) enforceability of any waiver of rights under any usury or stay law, (x) effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above, and (y) the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the New Securities to the extent determined to constitute unearned interest.

 

 

 

In connection with the opinions expressed above, we have assumed that (i) the Registration Statement shall have been declared effective and such effectiveness shall not have been suspended; (ii) the Indenture and the New Securities are each valid, binding and enforceable agreements of each party thereto (other than as expressly covered above in respect of the Company and the Guarantors); and (iii) there shall not have occurred any change in law affecting the validity or enforceability of any of the New Securities.

 

We are members of the Bar of the State of New York, and the foregoing opinion is limited to the laws of the State of New York, the federal laws of the United States of America and the General Corporation Law of the State of Delaware, except that we express no opinion as to any law, rule or regulation that is applicable to the Company and the Guarantors, the Exchange Offer or such transactions solely because such law, rule or regulation is part of a regulatory regime applicable to any party to the Exchange Offer or any such party's affiliates due to the specific assets or business of such party or such affiliate. With respect to all matters of the laws of the Province of Nova Scotia and the federal laws of Canada, you have received, and we understand that you are relying upon, the opinion of Brian C. Curry, Corporate Secretary of Emera.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and further consent to the reference to our name under the caption “Validity of Securities” in the prospectus, which is a part of the Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended.

 

Very truly yours,

 

/s/ Davis Polk & Wardwell LLP

 

 

 

 

 

 

Exhibits 5.2 and 23.3

 

November 15, 2024

 

EUSHI Finance, Inc.

37 Route 236

Kittery Properties, Suite 101

Kittery, ME 03904

 

Dear Sirs/Mesdames:

 

EUSHI Finance, Inc. – Offer to Exchange All Outstanding US$500,000,000 7.625% Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2054 for US$500,000,000 7.625% Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2054 which have been registered under the Securities Act of 1933, as amended (the “Securities Act”).

 

I, Brian C. Curry, the Corporate Secretary of Emera Incorporated (the “Company”), have acted in such capacity in connection with EUSHI Finance, Inc.’s (“EUSHI Finance”), offer (the “Exchange Offer”) to exchange its 7.625% Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2054 (the “New Exchange Notes” and, together with the related guarantees by the Company and Emera US Holdings Inc. (“EUSHI” and, together with the Company, the “Guarantors,” such guarantees collectively, the “New Exchange Guarantees”, each one, a “New Exchange Guarantee”), and collectively, the “New Exchange Securities”), for any and all of its outstanding 7.625% Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2054 (the “Old Notes” and, together with the related guarantees by the Guarantors (the “Old Guarantees”), collectively, the “Old Subordinated Securities”) pursuant to the registration statement on Form F-10/S-4 (the “Registration Statement”) filed by EUSHI Finance and the Guarantors with the Securities and Exchange Commission.

 

The Old Subordinated Securities were issued and the New Exchange Securities will be issued pursuant to an indenture dated June 18, 2024 (the “Base Indenture”), as amended and supplemented by a first supplemental indenture dated June 18 2024 (the “First Supplemental Indenture,” and together with the Base Indenture, the “Indenture”), in each case, among the EUSHI Finance, as issuer, the Guarantors, as guarantors, and Equiniti Trust Company, LLC, as trustee (the “Trustee”).

 

As counsel to the Company, I have examined originals or copies, certified or otherwise to my satisfaction, of the following:

 

1.

the Registration Statement;

 

2.

a prospectus relating to the Exchange Offer (the “Prospectus”), as set forth in the Registration Statement;

 

3.

the documents incorporated by reference in the Prospectus;

 

4.

resolutions of the Board of Directors of the Company approving and authorizing, among other things, the creation, issuance, sale and delivery by the Company of the New Exchange Securities, the execution and filing of the Prospectus, the filing of the Registration Statement, the execution of the Indenture and the Exchange Offer; and

 

5.

the Indenture.

 

I have examined originals or copies, certified or otherwise identified to my satisfaction, of such documents, records of corporate proceedings, certificates and acknowledgements of governmental officials and others and such other material as I have considered necessary or appropriate for the purpose of the opinions hereinafter expressed.

 

For purposes of the opinions hereinafter expressed, I have assumed:

 

(i)

the genuineness of all signatures (whether on originals or copies of documents), the legal capacity of all individuals, the authenticity of all documents submitted to me as originals, and the conformity to authentic originals of all documents submitted to me as certified, conformed, photostatic or facsimile copies thereof; and

 

(ii)

that each of the documents, instruments or agreements executed in connection with the Exchange Offer are within the capacity of, and have been validly authorized, executed and delivered and, if applicable, certified by, and constitute legal, valid, binding and enforceable obligations of, each party other than the Company.

 

The opinions expressed below are limited to the laws of the Province of Nova Scotia and the federal laws of Canada applicable therein (the “Applicable Laws”), as such laws exist and are construed as of the date hereof. In addition, the opinions expressed below do not extend to the effect or applicability of any Canadian federal, provincial, territorial and local laws, rules or regulations relating to the regulation of the generation, transportation, distribution or delivery of electricity, natural gas, oil or other specially regulated commodities or services, including pipelines, transmission lines, storage facilities and related facilities and equipment, or the import or export of such commodities or services.

 

In giving the opinion in paragraph 1 below as to the existence of the Company, I have also relied on a Certificate of Status dated November 15, 2024 issued by the Registrar of Joint Stock Companies in respect of the Company.

 

Based upon the foregoing, and subject to the qualifications expressed herein, I am of the opinion that:

 

1.

the Company is a company incorporated and existing under the laws of Nova Scotia;

 

2.

the Company has the corporate power to enter into and deliver its New Exchange Guarantee and to perform its obligations thereunder;

 

3.

the Indenture has been duly authorized and, to the extent execution and delivery are governed by the Applicable Laws, executed and delivered by the Company;

 

4.

the New Exchange Guarantee has been duly authorized and, to the extent execution and delivery are governed by the Applicable Laws, executed and delivered by the Company;

 

I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and further consent to the reference to my name under the caption “Validity of Securities” in the Prospectus, which is a part of the Registration Statement. In giving this consent, I do not admit that I am in the category of persons whose consent is required under Section 7 of the Securities Act.

 

Davis Polk & Wardwell LLP, U.S. counsel to the Company, may rely upon this opinion in rendering its opinion of even date herewith.

 

Yours very truly,

 

/s/ Brian C. Curry

 

Brian C. Curry

Corporate Secretary

 

 

Exhibit 5.3

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the reference to our firm under the caption “Experts” and to the incorporation by reference of our report dated February 26, 2024 with respect to the consolidated financial statements of Emera Incorporated (the “Company”) as at and for the years ended December 31, 2023 and 2012, included in Exhibit 99.3 on Form 40-F filed on February 26, 2024, in the Registration Statement on Form F-10 and related Prospectus of Emera Incorporated for the registration of USD $500,000,000 7.625% Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2054.

 

/s/ Ernst & Young LLP

Chartered Professional Accountants 

Halifax, Canada
November 15, 2024

 

 

Exhibit 21.1

 

EMERA INCORPORATED SUBSIDIARIES

 

Name of Subsidiary		Jurisdiction of Organization
Tampa Electric Company		Florida
Nova Scotia Power Incorporated		Nova Scotia
Peoples Gas System, Inc.		Florida

 

Exhibit 22.1

 

EMERA INCORPORATED GUARANTOR SUBSIDIARIES

 

Name of Guarantor Subsidiary		Jurisdiction of Organization
Emera US Holdings Inc.		Delaware

 

Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the reference to our firm under the caption “Experts” and to the incorporation by reference of our report dated February 26, 2024 with respect to the consolidated financial statements of Emera Incorporated (the “Company”) as at and for the years ended December 31, 2023 and 2022, included in Exhibit 99.3 on Form 40-F filed on February 26, 2024, in the Registration Statement on Form S-4 and related Prospectus of EUHSI Finance, Inc. and Emera US Holdings Inc. for the registration of USD $500,000,000 7.625% Fixed-to-Fixed Reset Rate Junior Subordinated Notes due 2054 and the related guarantees thereof.

 

/s/ Ernst & Young LLP Chartered Professional Accountants  Halifax, Canada November 15, 2024

 

Exhibit 24.1

 

POWERS OF ATTORNEY

 

Each person whose signature appears below authorizes Scott C. Balfour, Gregory W. Blunden and Brian C. Curry, or any of them, as his or her attorney in fact and agent, with full power of substitution and resubstitution to sign his or her name in any and all capacities (including his or her capacity as a Director or Officer of Emera Incorporated) to the Registration Statement on Forms S-4 and F-10 of Emera Incorporated (the “Registration Statement”) and any or all amendments to the Registration Statement, including post-effective amendments, and to file the same, with all exhibits thereto, and other documents and in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, and hereby ratifies and confirms all his or her said attorneys-in-fact and agents or any of them or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof.

 

This Power of Attorney may be executed in multiple counterparts, each of which shall be deemed an original, but which taken together shall constitute one instrument.

 

Signature	Title	Date
/s/ Scott C. Balfour Scott C. Balfour	President, Chief Executive Officer and Director (Principal Executive Officer)	November 15, 2024
/s/ Gregory W. Blunden  Gregory W. Blunden	Chief Financial Officer (Principal Financial and Accounting Officer)	November 15, 2024
/s/ M. Jacqueline Sheppard M. Jacqueline Sheppard	Chair and Director	November 15, 2024
/s/ James V. Bertram  James V. Bertram	Director	November 15, 2024
/s/ Henry E. Demone Henry E. Demone	Director	November 15, 2024
/s/ Paula Gold-Williams  Paula Gold-Williams	Director	November 15, 2024
/s/ Kent M. Harvey Kent M. Harvey	Director	November 15, 2024
/s/ B. Lynn Loewen  B. Lynn Loewen	Director	November 15, 2024
/s/ Brian J. Porter Brian J. Porter	Director	November 15, 2024
/s/ Ian E. Robertson  Ian E. Robertson	Director	November 15, 2024
/s/ Karen H. Sheriff Karen H. Sheriff	Director	November 15, 2024
/s/ Jochen E. Tilk  Jochen E. Tilk	Director	November 15, 2024
/s/ Carla M. Tully Carla M. Tully	Director	November 15, 2024

Exhibit 24.2

POWERS OF ATTORNEY

 

Each person whose signature appears below authorizes Gregory W. Blunden and Brian C. Curry, or either of them, as his or her attorney in fact and agent, with full power of substitution and resubstitution to sign his or her name in any and all capacities (including his or her capacity as a Director or Officer of EUSHI Finance, Inc.) to the Registration Statement on Form S-4 of EUSHI Finance, Inc. (the “Registration Statement”) and any or all amendments to this Registration Statement, including post-effective amendments, and to file the same, with all exhibits thereto, and other documents and in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, and hereby ratifies and confirms all his or her said attorneys-in-fact and agents or any of them or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof.

 

This Power of Attorney may be executed in multiple counterparts, each of which shall be deemed an original, but which taken together shall constitute one instrument.

 

Signature		Title		Date
/s/ Jeffrey Chronister
Jeffrey Chronister		President and Director (Principal Executive Officer)		November 15, 2024
/s/ Gregory W. Blunden
Gregory W. Blunden		Director and Chief Financial Officer (Principal Financial and Accounting Officer)		November 15, 2024
/s/ John Cochrane
John Cochrane		Director		November 15, 2024

 

 

 

 

Exhibit 24.3

POWERS OF ATTORNEY

 

Each person whose signature appears below authorizes Gregory W. Blunden and Brian C. Curry, or either of them, as his or her attorney in fact and agent, with full power of substitution and resubstitution to sign his or her name in any and all capacities (including his or her capacity as a Director or Officer of Emera US Holdings Inc.) to the Registration Statement on Form S-4 of Emera US Holdings Inc. (the “Registration Statement”) and any or all amendments to this Registration Statement, including post-effective amendments, and to file the same, with all exhibits thereto, and other documents and in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, and hereby ratifies and confirms all his or her said attorneys-in-fact and agents or any of them or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof.

 

This Power of Attorney may be executed in multiple counterparts, each of which shall be deemed an original, but which taken together shall constitute one instrument.

 

Signature		Title		Date
/s/ David M. Nicholson
David M. Nicholson		President and Director (Principal Executive Officer)		November 15, 2024
/s/ Gregory W. Blunden
Gregory W. Blunden		Chief Financial Officer (Principal Financial and Accounting Officer)		November 15, 2024
/s/ Scott C. Balfour
Scott C. Balfour		Director		November 15, 2024
/s/ Kent M. Harvey
Kent M. Harvey		Director		November 15, 2024

 

 

 

Exhibit 25.1

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM T-1

 

STATEMENT OF ELIGIBILITY

UNDER THE TRUST INDENTURE ACT OF 1939 OF A

CORPORATION DESIGNATED TO ACT AS TRUSTEE

 

• Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2)

 

EQUINITI TRUST COMPANY, LLC

(Exact name of trustee as specified in its charter)

 

New York		13-3439945
(State of incorporation of organization if not a U.S. national bank)		(I.R.S. Employer Identification Number)

 

48 Wall Street, 22nd Floor, New York, New York 10005		10005
(Address of principal executive offices)		(Zip Code)

 

Paul H. Kim

Equiniti Trust Company, LLC

48 Wall Street, 22^nd Floor

New York, NY 10005

(800) 468-9716

(Name, address and telephone number of agent for service)

 

Emera Incorporated

(Exact name of obligor as specified in its charter)

 

Nova Scotia, Canada		Not Applicable
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification Number)

 

515 Terminal Road Halifax NS Canada		B3J 1A1
(Address of principal executive offices)		(Zip Code)

 

7.625% Fixed-to-Fixed Reset Rate Junior Subordinated Notes Due 2054
Guarantees of 7.625% Fixed-to-Fixed Reset Rate Junior Subordinated Notes Due 2054