Form 6-K ALGONQUIN POWER & UTILIT For: Jun 23
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
Pursuant to Rule 13a-16 or 15d-16 of the
Securities Exchange Act of 1934
Date: June 23, 2021
Commission File Number: 001-37946
Algonquin Power & Utilities Corp.
(Translation of registrant’s name into English)
354 Davis Road
Oakville, Ontario, L6J 2X1, Canada
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F ☐ Form 40-F ☒
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): ☐
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): ☐
INCORPORATION BY REFERENCE
This Report on Form 6-K is filed to provide certain information in, and is hereby incorporated by reference into, the Registration Statement on Form F-10, File No. 333-236975, of Algonquin Power & Utilities Corp. (the “Company”).
Completion of Equity Units Offering
On June 23, 2021, the Company issued and sold 20,000,000 Equity Units (the “Equity Units”), initially consisting of Corporate Units (the “Corporate Units”), for an aggregate stated amount of $1.0 billion, as more fully described below. The
Corporate Units were issued and sold pursuant to the Underwriting Agreement dated June 17, 2021 between the Company and the Representatives of the several Underwriters named in Schedule A thereto (the “Underwriting Agreement”).
Each Corporate Unit has a stated amount of $50 and is comprised of (i) a purchase contract obligating the holder of such purchase contract to purchase from the Company for a price in cash of $50, on the purchase contract settlement date, or June
15, 2024, subject to earlier termination or settlement, a certain number of common shares in the capital of the Company; and (ii) a 1/20, or 5%, undivided beneficial ownership interest in $1,000 principal amount of the Company’s 2021 1.18%
Remarketable Notes due 2026 (the “Notes”). In addition to interest payable under the Notes, holders of the Corporate Units will be entitled to receive quarterly contract adjustment payments at a rate of 6.57% per year on the stated amount of $50 per
Corporate Unit, subject to the Company’s right to defer such contract adjustment payments.
The Corporate Units are being issued pursuant to a Purchase Contract and Pledge Agreement dated as of June 23, 2021 (the “Purchase Contract and Pledge Agreement”). The Notes are being issued pursuant to a Senior Indenture dated as of June 23,
2021 (the “Base Indenture”), as supplemented by the First Supplemental Indenture dated as of June 23, 2021 (the Base Indenture as supplemented, the “Indenture”).
Copies of the Purchase Contract and Pledge Agreement, the Indenture, the form of remarketing agreement, the form of Corporate Units, the form of Treasury Units and the form of Note are attached hereto as exhibits and are expressly incorporated by
reference herein.
EXHIBIT INDEX
The following exhibits are filed as part of this Form 6-K:
Exhibit
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Description
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Senior Indenture dated June 23, 2021, by and among Algonquin Power & Utilities Corp., The Bank of New York Mellon Trust Company, N.A., as U.S. trustee, and BNY Trust Company of Canada, as Canadian trustee.
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First Supplemental Indenture dated June 23, 2021, by and among Algonquin Power & Utilities Corp., The Bank of New York Mellon Trust Company, N.A., as U.S. trustee, and BNY Trust Company of Canada, as Canadian trustee.
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Form of 1.18% Remarketable Notes due 2026 (included in Exhibit 99.2).
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Purchase Contract and Pledge Agreement dated as of June 23, 2021, by and between Algonquin Power & Utilities Corp. and The Bank of New York Mellon Trust Company, N.A., as purchase contract agent, collateral agent, custodial agent and
securities intermediary.
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Form of Corporate Units (included in Exhibit 99.4).
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Form of Treasury Units (included in Exhibit 99.4).
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
ALGONQUIN POWER & UTILITIES CORP.
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(registrant)
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Date: June 23, 2021
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By:
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/s/ Arthur Kacprzak
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Name:
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Arthur Kacprzak
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Title:
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Chief Financial Officer
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Exhibit 99.1
Execution Version
ALGONQUIN POWER & UTILITIES CORP.
AND
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
AND
BNY TRUST COMPANY OF CANADA
SENIOR INDENTURE
DATED AS OF JUNE 23, 2021
SENIOR NOTES
Reconciliation and tie between
Trust Indenture Act of 1939 (the Trust Indenture Act)
and Indenture
Trust Indenture Act Section
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Indenture Section
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Section 310(a)(1)
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7.9
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(a)(2)
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7.9
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(a)(3)
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Not applicable
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(a)(4)
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Not applicable
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(a)(5)
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7.9
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(b)
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7.8
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Section 311 (a)
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7.13
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(b)
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5.4(a), 7.13
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Section 312(a)
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5.1
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(b)
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5.2
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(c)
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5.2
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Section 313(a)
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5.4(a)
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(b)
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5.4(a), 5.4(b)
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(c)
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5.4(c)
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(d)
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5.4(d)
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Section 314(a)
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4.6; 5.3
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(b)
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Not applicable
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(c)(1)
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15.4
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(c)(2)
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15.4
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(c)(3)
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Not applicable
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(d)
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Not applicable
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(e)
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15.4
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(f)
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15.4
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Section 315(a)
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7.1, 7.2
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(b)
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6.7
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(c)
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7.1
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(d)
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7.1(b)
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(d)(1)
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7.1(a)(i)
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(d)(2)
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7.1(b)
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(d)(3)
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7.1(c)
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(e)
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6.8
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Section 316(a) (last sentence)
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8.4
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(a)(1)(A)
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6.6
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(a)(1)(B)
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6.6
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(a)(2)
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Not applicable
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(b)
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6.4
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(c)
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10.5
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Section 317(a)(1)
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6.2, 6.5
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(a)(2)
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6.2
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(b)
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4.4(a)
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Section 318(a)
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15.6
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be part of the Indenture.
i
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS
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1
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1.1
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Certain Terms Defined
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1
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ARTICLE II ISSUE, DESCRIPTION, EXECUTION, REGISTRATION OF TRANSFER AND EXCHANGE OF SECURITIES
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6
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2.1
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Amount, Series and Delivery of Securities
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6
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2.2
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Form of Securities and Trustee’s Certificate
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9
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2.3
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Denominations of and Payment of Interest on Securities
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10
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2.4
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Execution of Securities
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11
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2.5
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Registration, Transfer and Exchange of Securities
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11
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2.6
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Temporary Securities
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13
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2.7
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Mutilated, Destroyed, Lost or Stolen Securities
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13
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2.8
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Cancellation and Disposition of Surrendered Securities
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14
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2.9
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Authenticating Agents
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14
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2.10
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CUSIP and Other Numbers
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15
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2.11
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Interest
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15
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ARTICLE III REDEMPTION OF SECURITIES
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15
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3.1
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Applicability of Article
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15
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3.2
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Delivery of Notice of Redemption
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15
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3.3
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When Securities Called for Redemption Become Due and Payable
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17
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3.4
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Exclusion of Certain Securities from Eligibility for Selection for Redemption
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17
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ARTICLE IV PARTICULAR COVENANTS OF THE CORPORATION
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18
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4.1
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Payment of Principal of and Interest on Securities
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18
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4.2
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Payment of Taxes
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18
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4.3
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Maintenance of Offices or Agencies for Registration of Transfer, Exchange and Payment of Securities
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20
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4.4
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Appointment to Fill a Vacancy in the Office of Trustee
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20
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4.5
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Duties of Paying Agent
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20
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4.6
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Further Assurances
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21
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4.7
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Officer’s Certificate as to Defaults; Notices of Certain Defaults
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21
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4.8
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Waiver of Covenants
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21
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4.9
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Foreign Issuer Status
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21
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ARTICLE V SECURITYHOLDERS’ LISTS AND REPORTS BY THE CORPORATION AND THE TRUSTEE
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21
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ii
5.1
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Corporation to Furnish Trustee Information as to the Names and Addresses of Securityholders
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21
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5.2
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Trustee to Preserve Information as to the Names and Addresses of Securityholders Received by It
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22
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5.3
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Annual and Other Reports to be Filed by Corporation with Trustee
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22
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5.4
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Trustee to Transmit Annual Report to Securityholders
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23
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ARTICLE VI REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
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24
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6.1
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Events of Default Defined
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24
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6.2
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Covenant of Corporation to Pay to Trustee Whole Amount Due on Securities on Default in Payment of Interest or Principal
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26
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6.3
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Application of Moneys Collected by Trustee
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27
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6.4
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Limitation on Suits by Holders of Securities
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27
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6.5
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On Default Trustee May Take Appropriate Action
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28
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6.6
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Rights of Holders of Majority in Principal Amount of Securities to Direct Trustee and to Waive Default
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28
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6.7
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Trustee to Give Notice of Defaults Known to It, but May Withhold in Certain Circumstances
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29
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6.8
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Requirement of an Undertaking to Pay Costs in Certain Suits Under the Indenture or Against the Trustee
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29
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ARTICLE VII CONCERNING THE TRUSTEE
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29
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7.1
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Upon Event of Default Occurring and Continuing, Trustee Shall Exercise Powers Vested in It, and Use Same Degree of Care and Skill in Their Exercise, as a Prudent Man Would Use
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29
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7.2
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Reliance on Documents, Opinions, Etc.
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30
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7.3
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Trustee Not Liable for Recitals in Indenture or in Securities
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32
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7.4
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May Hold Securities
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32
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7.5
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Moneys Received by Trustee to be Held in Trust without Interest
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32
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7.6
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Trustee Entitled to Compensation, Reimbursement and Indemnity
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33
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7.7
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Right of Trustee to Rely on Officer’s Certificate where No Other Evidence Specifically Prescribed
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33
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7.8
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Disqualification; Conflicting Interests
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33
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7.9
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Requirements for Eligibility of Trustee
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34
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7.10
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Resignation and Removal of Trustee
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34
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7.11
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Acceptance by Successor Trustee
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35
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7.12
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Successor to Trustee by Merger, Amalgamation, Consolidation or Succession to Business
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36
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7.13
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Limitations on Preferential Collection of Claims by the Trustee
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36
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7.14
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Third Party
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36
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7.15
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Not Bound to Act
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37
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7.16
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Privacy (Canadian Trustee)
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37
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ARTICLE VIII CONCERNING THE SECURITYHOLDERS
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37
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iii
8.1
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Evidence of Action by Securityholders
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37
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8.2
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Proof of Execution of Instruments and of Holding of Securities
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37
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8.3
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Who May be Deemed Owners of Securities
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38
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8.4
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Securities Owned by Corporation or Controlled or Controlling Persons Disregarded for Certain Purposes
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38
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8.5
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Instruments Executed by Securityholders Bind Future Holders
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38
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ARTICLE IX SECURITYHOLDERS’ MEETINGS
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39
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9.1
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Purposes for which Meetings May be Called
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39
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9.2
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Manner of Calling Meetings
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39
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9.3
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Call of Meeting by Corporation or Securityholders
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39
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9.4
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Who May Attend and Vote at Meetings
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39
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9.5
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Regulations May be Made by Trustee
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39
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9.6
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Manner of Voting at Meetings and Record to be Kept
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40
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9.7
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Exercise of Rights of Trustee and Securityholders Not to be Hindered or Delayed
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40
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ARTICLE X SUPPLEMENTAL INDENTURES
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41
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10.1
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Purposes for which Supplemental Indentures May be Entered into Without Consent of Securityholders
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41
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10.2
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Modification of Indenture with Consent of Holders of a Majority in Principal Amount of Securities
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42
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10.3
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Effect of Supplemental Indentures
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43
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10.4
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Securities May Bear Notation of Changes by Supplemental Indentures
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43
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10.5
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Revocation and Effect of Consents
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43
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10.6
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Conformity with Trust Indenture Legislation
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43
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ARTICLE XI CONSOLIDATION, AMALGAMATION, ARRANGEMENT, MERGER, SALE OR CONVEYANCE
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43
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11.1
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Corporation May Consolidate, etc., on Certain Terms
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43
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11.2
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Successor Substituted
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44
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11.3
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Opinion of Counsel to Trustee
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44
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ARTICLE XII SATISFACTION AND DISCHARGE OF INDENTURE, UNCLAIMED MONEYS
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44
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12.1
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Satisfaction and Discharge of Indenture
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44
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12.2
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Application by Trustee of Funds Deposited for Payment of Securities
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45
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12.3
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Repayment of Moneys Held by Paying Agent
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45
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12.4
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Repayment of Moneys Held by Trustee
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45
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12.5
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Defeasance and Covenant Defeasance
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45
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ARTICLE XIII IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS, DIRECTORS AND EMPLOYEES
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48
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13.1
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Incorporators, Stockholders, Officers, Directors and Employees of Corporation Exempt from Individual Liability
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48
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ARTICLE XIV [Reserved]
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49
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ARTICLE XV MISCELLANEOUS PROVISIONS
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49
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iv
15.1
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Successors and Assigns of Corporation Bound by Indenture
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49
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15.2
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Acts of Board, Committee or Officer of Successor Valid
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49
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15.3
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Required Notices or Demands May be Served by Mail
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49
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15.4
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Officer’s Certificate and Opinion of Counsel to be Furnished upon Applications or Demands by the Corporation
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49
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15.5
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Payments Due on Saturdays, Sundays and Holidays
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50
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15.6
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Provisions Required by Trust Indenture Act to Control
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50
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15.7
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Indenture and Securities to be Construed in Accordance with the Laws of the State of New York
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50
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15.8
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Provisions of the Indenture and Securities for the Sole Benefit of the Parties and the Securityholders
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50
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15.9
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Indenture May be Executed in Counterparts
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50
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15.10
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Conversion of Currency
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51
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15.11
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Table of Contents, Headings, etc.
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51
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15.12
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Patriot Act Requirements of Trustee
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52
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15.13
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Jury Trial Waiver
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52
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15.14
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Submission to Jurisdiction
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52
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15.15
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Tax Withholding
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52
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15.16
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Sanctions Representations
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52
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15.17 |
Information Sharing |
53 |
v
THIS SENIOR INDENTURE (the “Indenture”), dated as of the 23rd day of June, 2021 between ALGONQUIN POWER & UTILITIES CORP., a corporation duly organized and existing under the laws of Canada (hereinafter
sometimes referred to as the “Corporation”), THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association (hereinafter sometimes referred to as the “U.S. Trustee”), as U.S. trustee, and BNY TRUST COMPANY OF CANADA, a
trust company existing under the federal laws of Canada (hereinafter sometimes referred to as the “Canadian Trustee” and, together with the U.S. Trustee, the “Trustees”), as Canadian trustee.
WITNESSETH:
WHEREAS, for its lawful corporate purposes, the Corporation has duly authorized the issuance from time to time of its unsecured senior notes or other evidences of indebtedness (hereinafter referred
to as the “Securities”), without limit as to principal amount, issuable in one or more series, the amount and terms of each such series to be determined as hereinafter provided; to be authenticated in accordance with this Indenture; and, to
provide the terms and conditions upon which the Securities are to be authenticated, issued and delivered, the Corporation has duly authorized the execution of this Indenture; and
WHEREAS, all acts and things necessary to make the Securities when executed by the Corporation and authenticated and delivered by the U.S. Trustee as in this Indenture provided, the valid, binding
and legal obligations of the Corporation, and to constitute these presents a valid indenture and agreement according to its terms, have been done and performed and the execution of this Indenture and the issue hereunder of the Securities have in all
respects been duly authorized, and the Corporation, in the exercise of the legal rights and power vested in it, executes this Indenture and proposes to make, execute, issue and deliver the Securities.
NOW, THEREFORE, in order to declare the terms and conditions upon which the Securities are authenticated, issued and delivered, and in consideration of the premises and of the purchase and acceptance
of the Securities by the holders thereof, the Corporation covenants and agrees with the Trustees, for the benefit of each other and for the equal and proportionate benefit of the respective holders from time to time of the Securities or of series
thereof as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Terms Defined. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(a) The terms defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular;
(b) All other terms used herein which are defined in the Trust Indenture Act, whether directly or by reference therein, have the meanings assigned to them therein (except as otherwise
expressly provided);
(c) All accounting terms used herein and not expressly defined herein shall 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 (i) such accounting principles which are recognized as being generally accepted in the
United States of America, if the Corporation is then preparing its financial statements in accordance with such principles, (ii) international financial reporting standards as issued by the International Accounting Standards Board, if the
Corporation is then preparing its financial statements in accordance with such principles, or (iii) accounting principles which are recognized as being generally accepted in Canada, if the Corporation is then preparing its financial statements in
accordance with such principles; provided, that when two or more principles are so generally accepted, it shall mean that set of principles consistent with those in use by the Corporation; and
1
(d) The terms “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.
Additional Amounts: has the meaning specified in Section 4.2; and whenever in this Indenture there is mentioned, in any context, (1) the payment of principal or premium,
(2) purchase prices in connection with a purchase of Securities, (3) interest, or (4) any other amount payable on or with respect to the Securities, such reference shall be deemed to include payment of any Additional Amounts to the extent that, in
such context, such Additional Amounts are, were or would be payable in respect thereof.
Additional Interest: means the interest, if any, that shall accrue on any interest on the Securities of any series the payment of which has not been made on the applicable
interest payment date and which shall accrue at the rate per annum specified or determined as specified in such Security.
Agent: means any registrar, Paying Agent, or Depository Custodian.
Applicable Procedures: means, with respect to any payment, tender, redemption, transfer or exchange of or for beneficial interests in any global Security held by the Depository,
the rules and procedures of the Depository that apply to such payment, tender, redemption, transfer or exchange.
Authenticating Agent: means any Authenticating Agent appointed by the U.S. Trustee pursuant to Section 2.9.
Authorized Newspaper: means a newspaper in an official language of the place of publication, customarily published at least once a day for at least five days in each calendar
week and of general circulation in each place in connection with which the term is used or in the financial community of each such place. Whenever successive publications are required to be made in an Authorized Newspaper, the successive publications
may be made in the same or in a different newspaper meeting the foregoing requirements and in each case on any day of the week. If it is impossible or, in the opinion of the U.S. Trustee, impracticable to publish any notice in the manner herein
provided, then such publication in lieu thereof as shall be made with the approval of the U.S. Trustee shall constitute a sufficient publication of such notice.
Board of Directors: when used with reference to the Corporation, means the Board of Directors of the Corporation or any committee of or created by the Board of Directors of the
Corporation duly authorized to act hereunder.
Business Day: means any day which is not a Saturday or Sunday or a day on which banking institutions in The City of New York are authorized or required by law or executive order
to close or a day on which the Corporate Trust Office of the U.S. Trustee is closed for business.
Canadian Trustee: means the Person named as the “Canadian Trustee” in the first paragraph of this Indenture until a successor Canadian Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter shall mean or include each Person who is then a Canadian Trustee hereunder, unless there has ceased to be a Canadian Trustee under this Indenture.
Canadian Trust Indenture Legislation: means, at any time, statutory provisions relating to trust indentures and the rights, duties and obligations of
trustees under trust indentures and of bodies corporate issuing or guaranteeing debt obligations under trust indentures to the extent that such provisions are at such time in force and applicable to this Indenture, and at the date of this Indenture
includes the applicable provisions of the Loan and Trust Corporations Act (Ontario), the Trust and Loan Companies Act (Canada) and the Canada Business Corporations Act and any statute that may be substituted therefor, as from time to time amended, and any other statute of Canada or a province thereof, including the regulations under any such statute.
Capital Stock: means shares of capital stock of any class of any corporation whether now or hereafter authorized regardless of whether such capital stock shall be limited to a
fixed sum or percentage in respect of the rights of the holders thereof to participate in dividends and in the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up.
2
Commission: means the United States Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution
of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties on such date.
Common Shares: means the common shares, no par value, of the Corporation.
Corporate Trust Office means the office of a Trustee at which at any particular time its corporate trust business in respect of this Indenture shall be principally administered,
which office, on the date of original execution of this Indenture, is located at 4655 Salisbury Road, Suite 300, Jacksonville, Florida 32256, Attention: Corporate Trust Administration, in the case of the U.S. Trustee, and at BNY Trust Company of
Canada, 1 York Street, 6th Floor, Toronto ON, M5J 0B6, Attention: Corporate Trust Administration, in the case of the Canadian Trustee, with a copy to the U.S. Trustee, or in each case at any other time at such other address as the Trustees may
designate from time to time by notice in writing to the Corporation, or at the principal corporate trust office of any successor trustee as to which such successor trustee may notify the Corporation in writing.
Corporation: means Algonquin Power & Utilities Corp., a corporation duly organized and existing under the laws of Canada and, subject to the provisions of Article XI, shall
also include its successors and assigns.
covenant defeasance: has the meaning specified in Section 12.5(c).
default: means any event that is or, after notice or passage of time or both, would be an Event of Default.
defeasance: has the meaning specified in Section 12.5(b).
Depository: means, with respect to the Securities of any series issuable or issued in whole or in part in the form of one or more global Securities, the person designated as
Depository by the Corporation pursuant to Section 2.1 until a successor Depository shall have become such pursuant to the applicable provisions of this Indenture, and thereafter the term “Depository” shall mean or include each person who is
then a Depository hereunder and if at any time there is more than one such person, the term “Depository” as used with respect to the Securities of any series shall mean the Depository with respect to the Securities of such series.
Depository Custodian: means the U.S. Trustee as custodian with respect to the global Securities held by the Depository or any successor entity thereto.
Dollar or $: means a dollar or other equivalent unit of legal tender for payment of public or private debts in the United States of America.
Electronic Means: means the following communications methods: e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords
and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
Event of Default: with respect to Securities of any series shall mean any event specified as such in Section 6.1 and any other event as may be established with respect to
the Securities of such series as contemplated by Section 2.1.
Exchange Act: has the meaning specified in Section 2.2.
Government Obligation: means securities which are (i) direct obligations of the United States of America where the payment or payments thereunder are supported by the full faith
and credit of the United States of America or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America where the timely payment or payments thereunder are unconditionally
guaranteed as a full faith and credit obligation by the United States of America, and which, in the case of (i) or (ii), are not callable or redeemable at the option of the issuer or issuers thereof.
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Indenture: means this instrument as originally executed, or, if amended or supplemented as herein provided, then as so amended or supplemented, and shall include the form and
terms of particular series of Securities established as contemplated by Sections 2.1 and 2.2.
Maturity: when used with respect to any Security means the date on which the principal of such Security becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption, tender for purchase, or otherwise.
1940 Act: means the Investment Company Act of 1940, as amended.
Officer: means the Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer, the President, any Vice President (whether or not designated by a number or word
added before or after the title vice president), the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary.
Officer’s Certificate: means a certificate signed by an Officer of the Corporation and delivered to the U.S. Trustee. Each such certificate shall include the statements provided
for in Section 15.4, if and to the extent required by the provisions thereof and will comply with Section 314 of the Trust Indenture Act.
Opinion of Counsel: means a written opinion of counsel, who may be an employee of, or counsel to, the Corporation, or other counsel, which opinion shall be reasonably
satisfactory to the U.S. Trustee, and delivered to the U.S. Trustee and/or the Canadian Trustee, as may otherwise be required pursuant to this Indenture. Each such opinion shall include the statements provided for in Section 15.4, if and to
the extent required by the provisions thereof and, and in respect of any such written opinion of counsel delivered to the U.S. Trustee, will comply with Section 314 of the Trust Indenture Act.
Original Issue Discount Security: means any Security which provides for an amount less than the principal amount thereof to be due and payable upon declaration pursuant to Section
6.1.
outstanding: when used with reference to Securities and subject to the provisions of Section 8.4, means as of any particular time, all Securities authenticated and
delivered under this Indenture, except
(a) Securities theretofore canceled by the U.S. Trustee or delivered to the U.S. Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of which moneys in the necessary amount shall have been deposited in trust with the U.S. Trustee or with any Paying Agent
(other than the Corporation) or shall have been set aside and segregated in trust by the Corporation (if the Corporation shall act as its own Paying Agent), provided that such Securities shall have reached
their Stated Maturity or, if such Securities are to be redeemed prior to the Stated Maturity thereof, notice of such redemption shall have been given as in Article III provided, or provision satisfactory to the U.S. Trustee shall have been made for
giving such notice;
(c) Securities in lieu of or in substitution for which other Securities shall have been authenticated and delivered or which have been paid pursuant to the terms of Section 2.7 unless
proof satisfactory to the U.S. Trustee is presented that any such Securities are held by a bona fide purchaser in whose hands any of such Securities is a valid, binding and legal obligation of the Corporation; and
(d) Any such Security with respect to which the Corporation has effected defeasance or covenant defeasance pursuant to Section 12.5, except to the extent provided in Section 12.5.
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In determining whether the holders of the requisite principal amount of outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, (i) the principal amount of an
Original Issue Discount Security that shall be deemed to be outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the
Maturity thereof pursuant to Section 6.1; and (ii) the principal amount of any Securities denominated in a foreign currency that shall be deemed outstanding shall be the Dollar equivalent, determined on the date of issuance for such
Securities, of the principal amount or, in the case of an Original Issue Discount Security, the Dollar equivalent on the date of issuance of such Security of the amount determined as provided in clause (i).
Paying Agent: means the U.S. Trustee or any Person or Persons authorized by the Corporation to pay the principal or interest on any Securities on behalf of the Corporation.
Person or person: means any individual, corporation, estate, partnership, joint venture, association, joint stock company, limited liability company, trust, unincorporated
association or government or any agency or political subdivision thereof, or any other entity of whatever nature.
Principal: whenever used with reference to the Securities or any Security or any portion thereof, shall be deemed to include “and premium, if any.”
record date: has the meaning specified in Section 2.3.
redemption; redeem; redeemable: when used with respect to any Security, shall include, without limitation, any prepayment or repayment provisions applicable to such Security.
Register: has the meaning specified in Section 2.5.
Resolution of the Corporation: means a resolution of the Corporation, in the form of a resolution of the Board of Directors or in the form of a resolution of a duly constituted
committee of the Board of Directors, authorizing, ratifying, setting forth or otherwise validating agreements, execution and delivery of documents, the issuance, form and terms of Securities, or any other actions or proceedings pursuant or with
respect to this Indenture.
Responsible Officer: when used with respect to to either Trustee, means an officer of such Trustee in its Corporate Trust Office having direct responsibility for the
administration of this Indenture, and also, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject and who has direct
responsibility for the administration of this Indenture.
Security or Securities: means any security or securities of the Corporation, as the case may be, without regard to series, authenticated and delivered under this Indenture.
Securityholder, holder, holder of Securities or registered holder: or other similar term, mean any person who shall at the time be the registered holder of any Security or
Securities on the Register kept for that purpose in accordance with the provisions of this Indenture.
Stated Maturity: when used with respect to any Security or any installment of principal thereof or interest thereon means the date specified pursuant to the terms of such
Security as the date on which the principal of such Security or such installment of principal or interest thereon is due and payable in the case of such principal, as such date may be shortened or extended as provided pursuant to the terms of such
Security and this Indenture.
Subsidiary: means any corporation (or any other entity of whatever nature) which the Corporation has the possession, direct or indirect, through one or more intermediaries, of
the power to direct or cause the direction of the management and policies of such person, whether through the ownership of voting stock, by contract, or otherwise. For the purposes of this definition, “voting stock” means the sum of all rights to
vote for the election of directors and/or the sum of all interests in an unincorporated person, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.
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Tax Act: means the Income Tax Act (Canada) and the regulations thereunder, each as amended from time to time.
Trust Indenture Act: except as herein otherwise expressly provided or unless the context requires otherwise, the term “Trust Indenture Act” shall mean the Trust Indenture Act of
1939, as amended by the Trust Indenture Reform Act of 1990, as in force at the date as of which this Indenture was originally executed; provided, however, that, in the
event that the Trust Indenture Act is amended after such date, then “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
Trust Indenture Legislation: means the Trust Indenture Act and, if there is at the relevant time a Canadian Trustee hereunder, the Canadian Trust Indenture Legislation.
Trustee or Trustees: means the Person named as the “U.S. Trustee” and the “Canadian Trustee” in the first paragraph of this Indenture until a successor replaces it in accordance with the applicable provisions of this Indenture, and thereafter means the successor serving hereunder. If the
Canadian Trustee resigns or is removed and, pursuant to Section 7.10, is not required to appoint a successor trustee to the Canadian Trustee, then “Trustee,” “Trustees” and any reference to “the Trustees” shall mean the U.S. Trustee.
U.S. Trustee: means the Person named as the U.S. Trustee of this Indenture until a successor replaces it in accordance with the applicable provisions of this Indenture, and
thereafter means the successor serving hereunder.
ARTICLE II
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION OF TRANSFER
AND EXCHANGE OF SECURITIES
2.1 Amount, Series and Delivery of Securities. 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. The terms of each series (which terms shall not be inconsistent with the provisions of this Indenture), shall either be established in or pursuant to a Resolution of
the Corporation and set forth in an Officer’s Certificate, or set forth in one or more indentures supplemental hereto, prior to the issuance of Securities of such series and shall specify:
(a) The designation of the Securities of such series (which shall distinguish the Securities of the series from all other Securities);
(b) Any limit upon the aggregate principal amount of the Securities of such series which may be executed, authenticated and delivered under this Indenture; provided, however, that nothing contained in this Section or elsewhere in this Indenture or in such Securities or in a Resolution of the Corporation or Officer’s Certificate or supplemental indenture is intended to or
shall limit execution by the Corporation or authentication and delivery of Securities under the circumstances contemplated by Sections 2.5, 2.6, 2.7, 3.2, 3.3 and 10.4;
(c) The date or dates (if any) on which the principal of the Securities of such series is payable or the method or methods, if any, by which such date or dates shall be determined and the
circumstances, if any, under which such date or dates may be shortened or extended, either automatically or at the election of the Corporation;
(d) The rate or rates at which the Securities of such series shall bear interest, if any, the rate or rates and extent to which Additional Interest or other interest, if any, shall be payable,
the date or dates from which such interest shall accrue, the dates on which such interest shall be payable, the record date for the interest payable on any interest payment date and the right of the Corporation to defer or extend an interest payment
date;
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(e) The place or places where Securities of such series may be presented for payment and for the other purposes provided in Section 4.3;
(f) Any price or prices at which, any period or periods within which, and any terms and conditions upon which Securities of such series may be redeemed or prepaid, in whole or in part, at the
option of the Corporation;
(g) The type or types (if any) of Capital Stock of the Corporation into which, any period or periods within which, and any terms and conditions upon which Securities of such series may be made
payable, converted or exchanged in whole or in part, at the option of the holder or of the Corporation;
(h) If other than denominations of $1,000 and any whole multiple thereof, the denominations in which Securities of such series shall be issuable;
(i) If other than the principal amount thereof, the portion of the principal amount of Securities of such series which shall be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 6.1;
(j) If other than such coin or currency of the United States of America as at the time of payment is legal tender for payment of public or private debts, the coin or currency (which may be a
composite currency) in which payment of the principal of and interest, if any, on the Securities of such series shall be payable;
(k) If the principal of or interest, if any, on the Securities of such series are to be payable, at the election of the Corporation or a holder thereof, in a coin or currency (including
composite currency) other than that in which the Securities of such series are stated to be payable, the period or periods within which, and the terms and conditions upon which, such election may be made;
(l) If the amounts of payments of principal of or interest, if any, on the Securities of such series may be determined with reference to an index based on a coin or currency (including
composite currency) other than that in which the Securities of such series are stated to be payable, or any other index (including commodity or equity indices), the manner in which such amounts shall be determined;
(m) If the Securities of such series are payable at Maturity or upon earlier redemption in Capital Stock, the terms and conditions upon which such payment shall be made;
(n) The person or persons who shall be registrar for the Securities of such series, and the place or places where the Register of Securities of the series shall be kept;
(o) Any deletions from, modifications of or additions to the Events of Default or covenants of the Corporation with respect to any of such Securities, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set forth herein;
(p) Whether any Securities of such series are to be issuable in global form with or without coupons, and, if so, the Depository for such global Securities and whether beneficial owners of
interests in any such global Security may exchange such interests for definitive Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which, and the place or places where, any such exchanges
may occur, if other than in the manner provided in Section 2.5;
(q) Whether any Securities of such series are subject to any securities law or other restrictions on transfer;
(r) If the principal of or interest, if any, on the Securities of such series are to be payable, at the election of the Corporation or a holder thereof or otherwise, in Capital Stock, with the
proceeds of Capital Stock or from any other specific source of funds, the period or periods within which, and the terms and conditions upon which, such elections and/or payments shall be made;
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(s) If either or both of Section 12.5(b) relating to defeasance or Section 12.5(c) relating to covenant defeasance shall not be applicable to the Securities of such series, or
any covenants relating to the Securities of such series which shall be subject to covenant defeasance, and any deletions from, modifications or additions to, the provisions of Article XII in respect of the Securities of such series;
(t) if the Corporation is obligated to redeem or purchase any of such Securities pursuant to any sinking fund or analogous provision or at the option of any holder thereof and, if so, the date
or dates on which, the period or periods within which, the price or prices at which and the other terms and conditions upon which such Securities shall be redeemed or purchased, in whole or in part, pursuant to such obligation, and any provisions for
the remarketing of such Securities so redeemed or purchased; and
(u) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture);
or in any case, the method for determining such terms, the persons authorized to determine such terms and the limits, if any, within which any such determination of such terms is to be made.
The applicable Resolution of the Corporation, Officer’s Certificate or supplemental indenture may provide that Securities of any particular series may be issued at various times, with different dates on which the
principal or any installment of principal is payable, with different rates of interest, if any, or different methods by which interest may be determined, with different dates from which such interest shall accrue, with different dates on which such
interest may be payable or with any different terms other than Events of Default but all such Securities of a particular series shall for all purposes under this Indenture including, but not limited to, voting and Events of Default, be treated as
Securities of a single series.
Notwithstanding Section 2.1(b) and unless otherwise expressly provided with respect to a series of Securities, the aggregate principal amount of a series of Securities may be increased and
additional Securities of such series may be issued up to the maximum aggregate principal amount authorized with respect to such series as increased.
If any of the terms of any series of Securities are established by action taken pursuant to a Resolution of the Corporation, a copy of an appropriate record of such action shall be certified by the
Corporate Secretary or an Assistant Corporate Secretary of the Corporation and delivered to the U.S. Trustee, with a copy to the Canadian Trustee (which delivery shall not constitute notice herein) at or prior to the delivery of the Officer’s
Certificate or supplemental indenture setting forth the terms of the series.
At any time and from time to time after the execution and delivery of this Indenture, the Corporation may deliver Securities of any series executed by the Corporation to the U.S. Trustee for authentication by it, and the
U.S. Trustee shall thereupon authenticate and deliver such Securities to or upon the written order of the Corporation, signed by any Officer, without any further corporate action by the Corporation. If the form or terms of the Securities of the
series have been established in or pursuant to a Resolution of the Corporation and set forth in an Officer’s Certificate, or set forth in one or more supplemental indentures hereto, as permitted by this Section and Section 2.2, in
authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustees shall be entitled to receive, and (subject to Section 7.2) shall be fully protected in relying
upon an Opinion of Counsel to the effect that:
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(A) |
the form or forms and terms, or if all Securities of such series are not to be issued at one time, the manner of determining the terms of such Securities, have been established in conformity with the provisions of this Indenture;
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(B) |
all conditions precedent provided for in this Indenture to the authentication and delivery of such Securities have been complied with; and
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(C) |
if the Securities of such series have been registered under the Securities Act, that this Indenture has been qualified under the Trust Indenture Act.
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The Trustees shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustees’ own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the U.S. Trustee.
If all the Securities of any series are not to be issued at one time, it shall not be necessary to deliver either an Opinion of Counsel or an Officer’s Certificate at the time of issuance of each Security, provided that such Opinion of Counsel and Officer’s Certificate, with appropriate modifications, are instead delivered at or prior to the time of issuance of the first Security of such series.
Each Security shall be dated the date of its authentication.
2.2 Form of Securities and Trustee’s Certificate. The Securities of each series shall be substantially of the tenor and terms as shall be authorized in or pursuant to a Resolution of
the Corporation and set forth in an Officer’s Certificate, or set forth in an indenture or 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 or designation and such legends or endorsements thereon as the Corporation 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 stock exchange or automated quotation system on which the Securities may be listed, or to conform to usage. If the
form of Securities of any series is authorized by action taken pursuant to a Resolution of the Corporation, a copy of an appropriate record of such action shall be certified by the Corporate Secretary or an Assistant Corporate Secretary of the
Corporation and delivered to the U.S. Trustee, with a copy to the Canadian Trustee (which delivery shall not constitute notice herein) at or prior to the delivery of the Officer’s Certificate contemplated by Section 2.1 setting forth the
terms of the series.
The Securities may be printed, lithographed or fully or partly engraved.
The Trustee’s certificate of authentication shall be in substantially the following form:
“This is one of the Securities, of the series designated herein, referred to in the within-mentioned Indenture.
The Bank of New York Mellon Trust Company, N.A.,
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as U.S. Trustee
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By:
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Authorized Signatory”
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If Securities of a series are issuable in global form, as specified pursuant to Section 2.1, then, notwithstanding clause (h) of Section 2.1 and the provisions of Section 2.3, such Security shall
represent such amount 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 reduced to reflect exchanges or transfers (in any event, not to exceed the aggregate principal amount authorized from time to time
pursuant to Section 2.1). 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 Trustees in such manner and upon
instructions given by such person or persons as shall be specified in such Security or by the Corporation. Subject to the provisions of Section 2.4 and, if applicable, Section 2.6, the U.S. Trustee shall deliver and redeliver any
Security in global form in the manner and upon written instructions given by the person or persons specified in such Security or by the Corporation. Any instructions by the Corporation with respect to endorsement or delivery or redelivery of a
Security in global form after the original issuance of the Securities of such series shall be in writing, and shall not be objected to in writing by the Depository, but need not comply with Section 15.4 and need not be accompanied by an
Opinion of Counsel.
Unless otherwise specified pursuant to Section 2.1, payment of principal of and any premium and any interest on any Security in global form shall be made to the person or persons specified therein.
The owners of beneficial interests in any global Security shall have no rights under this Indenture with respect to any global Security held on their behalf by a Depository, and such Depository may be treated by the
Corporation, the Trustees, and any agent of the Corporation or the Trustees as the sole holder and owner of such global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Corporation, the Trustees or
any agent of the Corporation or the Trustees from giving effect to any written certification, proxy or other authorization furnished by a Depository, or impair, as between a Depository and its participants in any global Security, the operation of
customary practices governing the exercise of the rights of a holder of a Security of any series, including, without limitation, the granting of proxies or other authorization of participants to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action that a holder is entitled to give or take under this Indenture.
None of the Corporation, the Trustees or any Authenticating Agent will have any responsibility or liability for any act or omission of the Depository or any aspect of the records relating to or payments made on account
of beneficial ownership interests of a global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. The Corporation has entered into a letter of representations with the Depository in the
form provided by the Depository and the U.S. Trustee and each Agent are hereby authorized to act in accordance with such letter and Applicable Procedures.
Each Depository designated pursuant to Section 2.1 for a global Security must, at the time of its designation and at all times while it serves as Depository, be a clearing agency registered under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), and any other applicable statute or regulation.
The Corporation shall be responsible for making calculations called for under the Securities, including but not limited to determination of redemption price, premium, if any, and any other amounts payable on the
Securities. The Corporation will make the calculations in good faith and, absent manifest error, its calculations will be final and binding on the Holders. The Corporation will provide a schedule of its calculations to the U.S. Trustee when requested
by a Trustee, and the Trustees are entitled to rely conclusively on the accuracy of the Corporation’s calculations without independent verification. The Trustees shall forward the Corporation’s calculations to any Holder of the Securities upon the
written request of such Holder.
2.3 Denominations of and Payment of Interest on Securities. The Securities of each series shall be issuable as fully registered Securities without coupons in such
denominations as shall be specified as contemplated by Section 2.1 (except as provided in Section 2.2 and Section 2.6). In the absence of any such provisions with respect to the Securities of any series, the Securities of such series
shall be issuable in minimum denominations of $1,000 and integral multiples of $1,000 in excess thereof.
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If the Securities of any series shall bear interest, each Security of such series shall bear interest from the applicable date at the rate or rates per annum, and such interest shall be payable on the dates specified on,
or determined in the manner provided in, the Security. The person in whose name any Security is registered at the close of business on any record date (as defined below) for the Security with respect to any interest payment date for such Security
shall be entitled to receive the interest payable thereon on such interest payment date notwithstanding the cancellation of such Security upon any registration of transfer, exchange or conversion thereof subsequent to such record date and prior to
such interest payment date, unless such Security shall have been called for redemption on a date fixed for redemption subsequent to such record date and prior to such interest payment date or unless the Corporation shall default in the payment of
interest due on such interest payment date on such Security, in which case such defaulted interest shall be paid to the person in whose name such Security (or any Security or Securities issued upon registration of transfer or exchange thereof) is
registered at the close of business on the record date for the payment of such defaulted interest, or except as otherwise specified as contemplated by Section 2.1. The term “record date” as used in this Section with respect to any
regular interest payment date for any Security shall mean such day or days as shall be specified as contemplated by Section 2.1; provided, however, that in the
absence of any such provisions with respect to any Security, such term shall mean: (1) if such interest payment date is the first day of a calendar month, the fifteenth day of the calendar month next preceding such interest payment date; or (2) if
such interest payment date is the fifteenth day of a calendar month, the first day of such calendar month; in each case whether or not a Business Day. Such term, as used in this Section, with respect to the payment of any defaulted interest on any
Security shall mean (except as otherwise specified as contemplated by Section 2.1) the fifth day next preceding the date fixed by the Corporation for the payment of defaulted interest, established by notice given by delivery by or on behalf
of the Corporation to the holder of such Security not less than 10 days preceding such record date, or, if such fifth day is not a Business Day, the Business Day next preceding such fifth day.
2.4 Execution of Securities. The Securities shall be signed on behalf of the Corporation, manually, electronically or in facsimile, by any Officer. Only such Securities as shall bear
thereon a certificate of authentication substantially in the form recited herein, executed by or on behalf of the U.S. Trustee manually or electronically by an authorized officer, shall be entitled to the benefits of this Indenture or be valid or
obligatory for any purpose. Such certificate of authentication by the U.S. Trustee upon any Security executed by the Corporation shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and
that the holder is entitled to the benefits of this Indenture. The Securities executed via facsimile or electronic signature (including .pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000) shall be deemed to have been
duly and validly executed and be valid and effective for all purposes. Typographical or other errors or defects in the facsimile signature on any Security or in the text thereof shall not affect the validity or enforceability of such Security if it
has been duly authenticated and delivered by the U.S. Trustee. In case any officer of the Corporation who shall have signed any of the Securities, manually or in facsimile, shall cease to be such officer before the Securities so signed shall have
been authenticated and delivered by the U.S. Trustee, or disposed of by the Corporation, such Securities nevertheless may be authenticated and delivered or disposed of as though the person who signed such Securities had not ceased to be such officer
of the Corporation; and any Security may be signed on behalf of the Corporation, manually or in facsimile, by such person as, at the actual date of the execution of such Security, shall be the proper officer of the Corporation, although at the date
of the execution of this Indenture any such person was not such officer.
On the date of the execution and delivery of this Indenture, the Issuer shall deliver to the Trustees an Officers’ Certificate as to the incumbency and specimen signatures of officers authorized to give instructions
under this Section and, as long as Securities are outstanding under this Indenture, shall deliver a similar Officer’s Certificate each year on the anniversary of the date of the first such Officer’s Certificate. The Trustees may conclusively rely on
the documents delivered pursuant to this Section (unless revoked by superseding comparable documents) as to the authorization of the Board of Directors of any Securities delivered hereunder, and the form thereof, and as to the authority of the
instructing officers referred to in this Section so to act.
2.5 Registration, Transfer and Exchange of Securities. Securities of any series (other than a global Security, except as set forth below) may be exchanged for a like aggregate principal
amount of Securities of the same series of the same tenor and terms of other authorized denominations. Securities to be exchanged shall be surrendered at the offices or agencies to be maintained by the Corporation in accordance with the provisions of
Section 4.3 and the Corporation shall execute and upon the written order of the Corporation, the U.S. Trustee shall authenticate and deliver, or cause to be authenticated and delivered, in exchange therefor the Security or Securities which the
Securityholder making the exchange shall be entitled to receive.
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The Corporation shall keep, at one of the offices or agencies to be maintained by the Corporation in accordance with the provisions of Section 4.3 with respect to the Securities of each series, a Register (the “Register”)
in which, subject to such reasonable regulations as it may prescribe, the Corporation shall register the Securities of such series and the transfer of Securities of such series as in this Article provided. Such Register shall be in written form or in
any other form capable of being converted into written form within a reasonable time. At all reasonable times the Register shall be open for inspection by the Trustees and any registrar of the Securities of such series other than the Trustees. Upon
due presentment for registration of transfer of any Security of any series at the offices or agencies of the Corporation to be maintained by the Corporation in accordance with Section 4.3 with respect to the Securities of such series, the
Corporation shall execute and register and upon the written order of the Corporation, the U.S. Trustee shall authenticate and deliver in the name of the transferee or transferees a new Security or Securities of the same series of like tenor and terms
for a like aggregate principal amount of authorized denominations.
Every Security issued upon registration of transfer or exchange of Securities pursuant to this Section shall be the valid obligation of the Corporation, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Security or Securities surrendered upon registration of such transfer or exchange.
All Securities of any series presented or surrendered for exchange, registration of transfer, redemption, conversion or payment shall, if so required by the Corporation or any registrar of the Securities of such series,
be accompanied by a written instrument or instruments of transfer, in form satisfactory to the Corporation and such registrar, duly executed by the registered holder or by its attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of transfer of Securities, but the Corporation may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto.
The Corporation shall not be required to exchange or register the transfer of (a) any Securities of any series during a period beginning at the opening of business fifteen days before the day of the delivery of a notice
of redemption of outstanding Securities of such series and ending at the close of business on the relevant redemption date, or (b) any Securities or portions thereof called or selected for redemption, except, in the case of Securities called for
redemption in part, the portion thereof not so called for redemption.
Notwithstanding any other provision of this Section, unless and until it is exchanged in whole or in part for Securities in definitive form, a global Security representing all or a portion of the Securities of a series
may not be transferred, except as a whole by the Depository for such series to a nominee of such Depository or by a nominee of such Depository to such Depository or another nominee of such Depository or by such Depository or any such nominee to a
successor Depository for such series or a nominee of such successor Depository.
Notwithstanding the foregoing, except as otherwise specified pursuant to Section 2.1, any global Security shall be exchangeable pursuant to this Section only as provided in this paragraph. If at any time the
Depository for the Securities of a series notifies the Corporation that it is unwilling or unable to continue as Depository for the Securities of such series, or if at any time the Depository for the Securities of such series shall cease to be a
“clearing agency” registered under the Exchange Act, the Corporation shall appoint a successor Depository with respect to the Securities of such series. If (a) a successor Depository for the Securities of such series is not appointed by the
Corporation within 90 days after the Corporation receives such notice or becomes aware of such ineligibility (thereby automatically making the Corporation’s election pursuant to Section 2.1 no longer effective with respect to the Securities
of such series), (b) the beneficial owners of interests in a global Security are entitled to exchange such interests for definitive Securities of such series and of the same tenor and terms, as specified pursuant to Section 2.1, (c) there
shall have occurred and be continuing an Event of Default with respect to the Securities of such series, or (d) the Corporation in its sole discretion and subject to the procedures of the Depository determines 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, then without unnecessary delay, but, if appropriate, in any event not later than the earliest date on which such interest may be so
exchanged, the Corporation shall deliver to the U.S. Trustee definitive Securities in aggregate principal amount equal to the principal amount of such global Security, executed by the Corporation and authenticated by the U.S. Trustee. On or after the
earliest date on which such interests are or may be so exchanged, such global Security shall be surrendered by the Depository to the U.S. Trustee, as the Corporation’s agent for such purpose, to be exchanged, in whole or from time to time in part,
for definitive Securities upon payment by the beneficial owners of such interest, at the option of the Corporation, of a service charge for such exchange and of a proportionate share of the cost of printing such definitive Securities, upon the
written order of the Corporation, and the U.S. Trustee shall authenticate and deliver, (a) to each person specified by the Depository in exchange for each portion of such global Security, an equal aggregate principal amount of definitive Securities
of the same series of authorized denominations and of the same tenor and terms as the portion of such global Security to be exchanged, and (b) to such Depository a global Security in a denomination equal to the difference, if any, between the
principal amount of the surrendered global security and the aggregate principal amount of definitive Securities delivered to holders thereof; provided, however, that
no such exchanges may be required during a period beginning at the opening of business 15 days before any selection of Securities of that series to be redeemed and ending on the relevant redemption date. If a Security is issued in exchange for any
portion of a global Security after the close of business at the office or agency where such exchange occurs on (i) any record date and before the opening of business at such office or agency on the relevant interest payment date, or (ii) any record
date for the payment of defaulted interest and before the opening of business at such office or agency on the related proposed date for payment of defaulted interest, then interest or default interest, as the case may be, will not be payable on such
interest payment date or proposed date for payment of defaulted interest, as the case may be, in respect of such Security, but will be payable on such interest payment date or proposed date for payment of defaulted interest, as the case may be, only
to the person to whom interest in respect of such portion of such global Security is payable in accordance with the provisions of this Indenture and such global Security.
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2.6 Temporary Securities. Pending the preparation of definitive Securities of any series, the Corporation may execute and the U.S. Trustee shall, upon the written order of the
Corporation, authenticate and deliver temporary Securities of such series (printed or lithographed) of any denomination and substantially in the form of the definitive Securities of such series, but with or without a recital of specific redemption
prices or conversion provisions and with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Corporation. Temporary Securities may contain such reference to any provisions of this
Indenture as may be appropriate. Every such temporary Security shall be authenticated by the U.S. Trustee upon the same conditions and in substantially the same manner, and with the same effect, as the definitive Securities. Without unreasonable
delay the Corporation will execute and deliver to the U.S. Trustee definitive Securities of such series and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor, at the offices or agencies to be maintained
by the Corporation as provided in Section 4.3 with respect to the Securities of such series, and the U.S. Trustee shall, upon the written order of the Corporation, authenticate and deliver in exchange for such temporary Securities an equal
aggregate principal amount of definitive Securities of such series. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series
authenticated and delivered hereunder.
2.7 Mutilated, Destroyed, Lost or Stolen Securities. In case any temporary or definitive Security shall become mutilated or be destroyed, lost or stolen, the Corporation, in the case of
any mutilated Security shall, and in the case of any destroyed, lost or stolen Security in its discretion may, execute, and upon its written request the U.S. Trustee shall authenticate and deliver, or cause to be authenticated and delivered, a new
Security of the same series of like tenor and terms in exchange and substitution for the mutilated Security, or in lieu of and in substitution for the Security so destroyed, lost or stolen. In case any such Security shall have matured or shall be
about to mature or are called for redemption within one year under arrangements satisfactory to the U.S. Trustee for the giving of notice of redemption, instead of issuing a substituted Security, the Corporation may pay or authorize payment of the
same (without surrender thereof, except in the case of a mutilated Security). In every case the applicant for a substituted Security or for such payment shall furnish to the Corporation and the Trustees such security and/or indemnity as may be
required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Corporation and to the Trustees evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof. Upon the written order of the Corporation, the U.S. Trustee may authenticate any such substituted Security and deliver the same, or the U.S. Trustee or any Paying Agent of the Corporation may make any such
payment, upon the written request or authorization of any officer of the Corporation. Upon the issue of any substituted Security, the Corporation 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 reasonable expenses connected therewith (including the fees and expenses of the Trustees).
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To the extent permitted by mandatory provisions of law, every substituted Security issued pursuant to the provisions of this Section in substitution for any destroyed, lost or stolen Security shall constitute an
additional contractual obligation of the Corporation, whether or not the destroyed, lost or stolen Security shall be found at any time, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other
Securities of the same series duly issued hereunder.
To the full extent legally enforceable, all Securities shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities and shall preclude any and all other rights or remedies notwithstanding any law or statute now existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other
securities without their surrender.
2.8 Cancellation and Disposition of Surrendered Securities. All Securities surrendered for the purpose of payment, redemption, exchange, substitution or registration
of transfer, shall, if surrendered to the Corporation or any agent of the Corporation or of the Trustees, be delivered to the U.S. Trustee, and the same, together with Securities surrendered to the Trustees for cancellation, shall be canceled by it,
and no Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. The Trustees shall dispose of canceled Securities in accordance with its customary procedures and deliver a certificate of
cancellation thereof to the Corporation upon request. If the Corporation shall purchase or otherwise acquire any of the Securities, however, such purchase or acquisition shall not operate as a payment, redemption or satisfaction of the indebtedness
represented by such Securities unless and until the Corporation, at its option, shall deliver or surrender the same to the U.S. Trustee for cancellation.
2.9 Authenticating Agents. The U.S. Trustee may from time to time appoint one or more Authenticating Agents with respect to one or more series of Securities, which shall be authorized
to act on behalf of the U.S. Trustee and subject to its direction in authenticating and delivering Securities of such series pursuant hereto in connection with exchanges, registrations of transfer, redemptions or conversions, as fully to all intents
and purposes as though any such Authenticating Agent had been expressly authorized to authenticate and deliver Securities of such series, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as though authenticated by the U.S. Trustee. Wherever reference is made in this Indenture to the authentication or delivery of Securities by the U.S. Trustee or the U.S. Trustee’s certificate of authentication, such
reference shall be deemed to include authentication or delivery on behalf of the U.S. Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the U.S. Trustee by an Authenticating Agent. Each Authenticating Agent
shall at all times be a corporation (including a banking association) organized and doing business under the laws of the United States or any State or territory thereof or of the District of Columbia, having a combined capital and surplus of at least
five million dollars ($5,000,000) authorized under such laws to exercise corporate trust powers and subject to supervision or examination by federal, state, territorial, or District of Columbia authorities. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the aforesaid 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 herein specified in this Section.
Any corporation succeeding to the corporate agency business of an Authenticating Agent shall continue to be an Authenticating Agent, if such successor corporation is otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the U.S. Trustee or the Authenticating Agent or such successor corporation.
Any Authenticating Agent may at any time resign by giving written notice of resignation to the U.S. Trustee and to the Corporation. The U.S. Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice of termination to such Authenticating Agent and to the Corporation. Upon receiving such a notice of resignation or upon such a termination, or in case at any time an Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, the U.S. Trustee may appoint a successor Authenticating Agent. 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 herein. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
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The Corporation agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.
Any Authenticating Agent by the acceptance of its appointment shall be deemed to have agreed with the U.S. Trustee that: it will perform and carry out the duties of an Authenticating Agent as herein set forth, including
among other things the duties to authenticate and deliver Securities of any series for which it has been appointed an Authenticating Agent when presented to it in connection with exchanges, registrations of transfer or any redemptions or conversions
thereof; it will furnish from time to time as requested by the U.S. Trustee appropriate records of all transactions carried out by it as Authenticating Agent and will furnish the U.S. Trustee such other information and reports as the U.S. Trustee may
reasonably require; it is eligible for appointment as Authenticating Agent under this Section and will notify the U.S. Trustee promptly if it shall cease to be so qualified; and it will indemnify the Trustee against any loss, liability or expense
incurred by the Trustee and will defend any claim asserted against the Trustee by reason of any acts or failures to act of the Authenticating Agent but it shall have no liability for any action taken by it at the specific written direction of the
U.S. Trustee.
2.10 CUSIP and Other Numbers. The Corporation in issuing the Securities may use “CUSIP” numbers, ISIN numbers or other similar identifiers (if then generally
in use), and, if so, the Trustees may use such numbers in notices as a convenience to holders of Securities; provided that any such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such notice shall not be affected by any defect
in or omission of such numbers. The Corporation will promptly notify the U.S. Trustee, with a copy to the Canadian Trustee (which delivery shall not constitute notice herein) of any change in CUSIP, ISIN or other numbers assigned to the Securities.
2.11 Interest. Except as otherwise specified as contemplated by Section 2.1 for Securities of any series, interest on the Securities of each series shall be computed
on the basis of a 360-day year of twelve 30-day months, and with respect to any period less than a full calendar month, on the basis of the actual number of days elapsed in a 30-day month. For disclosure purposes under the Interest Act (Canada), whenever any interest or fee in respect of the Securities is calculated using a rate based on a number of days less than a full year, such rate determined pursuant to such calculation, when expressed as an
annual rate, shall be equivalent to (x) the applicable rate, (y) multiplied by the actual number of days in the calendar year in which the period for which such interest or fee is payable (or compounded) ends, and (z) divided by the number of days
based on which such rate is calculated. The principle of deemed reinvestment of interest does not apply to any interest calculation in respect of the Securities. The rates of interest stipulated herein with respect to the Securities are intended to
be nominal rates and not effective rates or yields.
ARTICLE III
REDEMPTION OF SECURITIES
3.1 Applicability of Article. Securities of any series which are redeemable prior to Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 2.1 for Securities of any series) in accordance with this Article.
3.2 Delivery of Notice of Redemption. In case the Corporation shall desire to exercise any right to redeem all or, as the case may be, any part of the Securities of any series pursuant
to this Indenture, it shall give notice of such redemption to holders of the Securities to be redeemed as hereinafter in this Section provided.
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The Corporation covenants that it will pay to the U.S. Trustee or one or more Paying Agents, by 11:00 a.m., New York City time, on the date of such redemption, a sum in cash sufficient to redeem on the redemption date
all the Securities so called for redemption at the applicable redemption price, together with any accrued interest on the Securities to be redeemed to but excluding the date fixed for redemption; provided, however, that to the extent any such funds are received by the U.S. Trustee or the Paying Agent from the Corporation after 11:00 am, New York City time, on such due date (such receipt, a “Late Redemption
Payment”), such funds will be deemed received by the U.S. Trustee or the Paying Agent, as the case may be, on the next succeeding Business Day, and neither the U.S. Trustee nor the Paying Agent shall be liable for any default by the Corporation
in payment of the applicable redemption price if such funds are not paid to Holders on such due date as a result of such Late Redemption Payment.
Notice of redemption shall be given to the holders of Securities to be redeemed as a whole or in part, in the case of global Securities, by sending or causing such notice to be sent in accordance with Applicable
Procedures, or in the case of Securities that are not global Securities, by first class mail, postage prepaid or electronic delivery, a notice of such redemption, in each case, not less than 20 days nor more than 60 days prior to the date fixed for
redemption to their last addresses as they shall appear upon the Register, but failure to give such notice in the manner herein provided to the holder of any Security designated for redemption as a whole or in part, or any defect therein, shall not
affect the validity of the proceedings for the redemption of any other Security.
Notice of any redemption, may, at the Corporation’s discretion, be given subject to one or more conditions precedent, including, without limitation, upon the receipt by the Paying Agent or Agents for the Securities, on
or prior to the date fixed for such redemption, of money sufficient to pay the principal of and premium, if any, and interest, if any, on such Securities. If any such condition precedent has not been satisfied, the Corporation will provide notice to
the U.S. Trustee not less than two Business Days prior to the redemption date that such condition precedent has not been satisfied, the notice of redemption is rescinded and the redemption subject to the satisfaction of such condition precedent shall
not occur. The U.S. Trustee shall promptly send a copy of such notice to the Holders of the Securities.
Any notice which is sent in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the holder receives the notice.
Each such notice of redemption shall identify the Securities to be redeemed (including CUSIP numbers provided that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such
notice or printed on the Securities), the paragraph of the Securities and/or Section of this Indenture pursuant to which the Securities called for redemption are being redeemed, any conditions precedent to such redemption described in reasonable
detail, and specify the date fixed for redemption and the redemption price at which Securities are to be redeemed (or if the redemption price cannot be calculated prior to the time the notice is required to be given, the manner of calculation
thereof), and shall state that payment of the redemption price of the Securities or portions thereof to be redeemed will be made at any of the offices or agencies to be maintained by the Corporation in accordance with the provisions of Section
4.3 with respect to the Securities to be redeemed, upon presentation and surrender of such Securities or portions thereof, and that, if applicable, interest accrued to the date fixed for redemption will be paid as specified in said notice and,
unless the Corporation defaults in the payment of such Securities at the applicable redemption price, on and after said date interest thereon will cease to accrue and shall also specify, if applicable, the conversion price and the date on which the
right to convert the Securities will expire and that holders must comply with the terms of the Securities in order to convert their Securities. If less than all the Securities of any series are to be redeemed, the notice of redemption to each holder
shall specify such holder’s Securities of such series to be redeemed as a whole or in part. In case any Security is to be redeemed in part only, the notice which relates to such Security shall state the portion of the principal amount thereof to be
redeemed (which shall be equal to an authorized denomination for Securities of such series), and shall state that on and after the redemption date, upon surrender of such Security, the holder will receive the redemption price in respect to the
principal amount thereof called for redemption and, without charge, a new Security or Securities of the same series of authorized denominations for the principal amount thereof remaining unredeemed.
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In the case of any redemption at the election of the Corporation, the Corporation shall, at least 20 days prior to the date fixed for redemption (unless a shorter notice shall be satisfactory to the U.S. Trustee or a
longer period is required by Depository for such global Security), notify the U.S. Trustee of such redemption date, the basis for such redemption and of the principal amount of Securities of the applicable series to be redeemed. At the Corporation’s
request, the U.S. Trustee shall give the notice of redemption in the Corporation’s name and at its expense; provided, however, that the Corporation shall have
delivered to the U.S. Trustee, at least 20 days prior to the last date on which notice of redemption may be given under the terms hereof (unless a shorter period shall be satisfactory to the U.S. Trustee or a longer period is required by Depository
for such global Security), an Officer’s Certificate requesting that the U.S. Trustee give such notice together with the notice to be given setting forth the information to be stated therein as provided in the preceding paragraph. 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 that is subject to compliance with conditions provided in the terms of such Securities, the Corporation shall furnish
the U.S. Trustee with an Officer’s Certificate evidencing compliance with such restriction or conditions. If less than all the Securities of such series are to be redeemed, and the Securities are global Securities, they will be selected for
redemption in accordance with the Applicable Procedures. If the Securities are not global Securities, thereupon the U.S. Trustee shall select, by lot, or in any manner it shall deem fair and appropriate, the Securities of such series to be redeemed
as a whole or in part and shall thereafter promptly notify the Corporation in writing of the particular Securities of such series or portions thereof to be redeemed. If the Securities of any series to be redeemed consist of Securities having
different dates on which the principal or any installment of principal is payable or different rates of interest, if any, or different methods by which interest may be determined or have any other different tenor or terms, then the Corporation may,
by written notice to the U.S. Trustee, direct that Securities of such series to be redeemed shall be selected from among groups of such Securities having specified tenor or terms and the U.S. Trustee shall thereafter select the particular Securities
to be redeemed in the manner set forth in the preceding sentence from among the group of such Securities so specified.
3.3 When Securities Called for Redemption Become Due and Payable. If the giving of notice of redemption shall have been completed as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and at the place or places stated in such notice at the applicable redemption price, together, if applicable, with any interest accrued (including any Additional Interest or
other interest) to but excluding the date fixed for redemption and on and after such date fixed for redemption (unless the Corporation shall default in the payment of such Securities at the applicable redemption price, together with any interest
accrued to the date fixed for redemption, or unless otherwise specified as contemplated by Section 2.1) any interest on the Securities or portions of Securities so called for redemption shall cease to accrue, and, except as provided in Sections
7.5 and 12.4, such Securities shall cease from and after the date fixed for redemption to be entitled to any benefit or security under this Indenture, and the holders thereof shall have no right in respect of such Securities except the
right to receive the redemption price thereof and any unpaid interest accrued to but excluding the date fixed for redemption. On presentation and surrender of such Securities at said place of payment in said notice specified, such Securities or
portions thereof shall be paid and redeemed by the Corporation at the applicable redemption price, together with any interest accrued to but excluding the date fixed for redemption; provided, however, that, except as otherwise specified as contemplated by Section 2.1, any regular payment of interest becoming due on the date fixed for redemption shall be payable to the holders of the Securities
registered as such on the relevant record date as provided in Article II hereof. Upon surrender of any Security which is redeemed in part only, the Corporation shall execute and upon the written order of the Corporation, the U.S. Trustee shall
authenticate and deliver at the expense of the Corporation a new Security of the same series of like tenor and terms of authorized denomination in principal amount equal to the unredeemed portion of the Security so surrendered; except that if a
global Security is so surrendered, the Corporation shall execute, and upon the written order of the Corporation, the U.S. Trustee shall authenticate and deliver to the Depository for such global Security, without service charge, a global Security in
a denomination equal to and in exchange for the unredeemed portion of the principal of the global Security so surrendered.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid, bear interest from the date fixed for redemption at the rate borne by or prescribed
therefor in the Security, or, in the case of a Security which does not bear interest, at the rate of interest set forth therefor in the Security to the extent permitted by law.
3.4 Exclusion of Certain Securities from Eligibility for Selection for Redemption. Securities shall be excluded from eligibility for selection for redemption if they are identified by
registration and certificate number in an Officer’s Certificate delivered to the U.S. Trustee at least 10 days prior to the last date on which notice of redemption may be given under the terms hereof as being owned of record and beneficially by, and
not pledged or hypothecated by either (a) the Corporation or (b) an entity specifically identified in such Officer’s Certificate as an affiliate of the Corporation.
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ARTICLE IV
PARTICULAR COVENANTS OF THE CORPORATION
The Corporation covenants as follows:
4.1 Payment of Principal of and Interest on Securities. The Corporation will duly and punctually pay or cause to be paid the principal of and interest (including any Additional
Interest due thereon), if any, on each of the Securities at the time and places and in the manner provided herein and in the Securities. Except as otherwise specified as contemplated by Section 2.1, if the Securities of any series bear
interest, each installment of interest on the Securities of such series may at the option of the Corporation be paid (i) by mailing a check or checks for such interest payable to the Person entitled thereto pursuant to Section 2.3 to the
address of such person as it appears on the Register of Securities of such series or (ii) by transfer to an account maintained by the Person entitled thereto as specified in the Register of Securities, provided that
proper transfer instructions have been received by the record date.
Additional Interest will be payable in arrears on each Interest Payment Date following accrual in the same manner as regular interest on the Securities. If Additional Interest is payable on the Securities, the
Corporation shall provide an Officer’s Certificate to the U.S. Trustee on or before the record date for each Interest Payment Date such Additional Interest is payable setting forth the accrual period and the amount of such Additional Interest in
reasonable detail. The U.S. Trustee may provide a copy of such Officer’s Certificate or other notice received from the Corporation relating to Additional Interest to any Holder upon request. Unless and until a Responsible Officer of the U.S. Trustee
receives at the Corporate Trust Office such a certificate, the U.S. Trustee may assume without inquiry that no such Additional Interest is payable. If the Corporation has paid Additional Interest directly to the Persons entitled to it, the
Corporation shall deliver to the U.S. Trustee an Officer’s Certificate setting forth the particulars of such payment.
4.2 Payment of Taxes. Except as otherwise specified as contemplated by Section 2.1 for Securities of any series, payments made by or on account of any obligation of the Corporation
under or with respect to the Securities shall be made free and clear of and without withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest
and other liabilities related thereto), in each case in the nature of a tax, imposed or levied by a governmental authority (hereinafter “Taxes”), unless the Corporation is required to withhold or deduct Taxes by law or by the interpretation or
administration thereof by the relevant government authority or agency. If the Corporation is so required to withhold or deduct any Taxes imposed by the Government of Canada or any province or territory thereof or by any authority or agency therein or
thereof having power to tax (a “Relevant Taxing Jurisdiction,” and such Taxes, “Canadian Taxes”) from any payment made under or with respect to the Securities, the Corporation shall pay as additional interest such additional amounts (hereinafter
“Additional Amounts”) as may be necessary so that the net amount received by each holder of the Securities (including Additional Amounts) after such withholding or deduction for Canadian Taxes shall not be less than the amount the holder of the
Securities would have received if such Canadian Taxes had not been withheld or deducted; provided however, that no Additional Amounts shall be payable with respect to a payment made to a holder of the Securities in respect of a holder or beneficial
owner:
(a) with which the Corporation does not deal at arm’s length (for purposes of the Tax Act) at the time of the making of such payment;
(b) in respect of a debt or other obligation to pay an amount to a person with whom the Corporation is not dealing at arm’s length (for purposes of the Tax Act);
(c) which is subject to such Canadian Taxes by reason of the failure to comply with any certification, identification, information, documentation or other reporting requirement by a holder or
beneficial owner of the Securities 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;
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(d) where all or any portion of the amount paid to such holder of the Securities relates to an amount that is or was deemed to be a dividend paid to such holder pursuant to subsection 214(16)
of the Tax Act;
(e) which is subject to such Canadian Taxes by reason of its carrying on business in or being connected with Canada or any province or territory thereof (including, without limitation, by
being or having been a national, domiciliary or resident, or treated as a resident, of, or physically present in or having or having had a permanent establishment in, Canada or any province or territory thereof) otherwise than by the mere holding of
Securities or the receipt of payments thereunder;
(f) in respect of any applicable Taxes that are payable other than by withholding from payments under or with respect to the Securities;
(g) in respect of any estate, inheritance, gift, sale, transfer, personal property, excise or similar applicable Taxes;
(h) if the applicable Taxes would not have been imposed but for the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on
which the relevant payment became due and payable pursuant to the terms thereof or was made or duly provided for;
(i) in respect of any applicable Taxes to the extent such applicable Taxes result from the presentation of any Note for payment (where presentation is required for payment) and the payment can
be made without such withholding or deduction by the presentation of the Note for payment by at least one other paying agent;
(j) for any Taxes imposed pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version of such sections) (“FATCA”), any regulations or other official guidance
thereunder, any agreement entered into pursuant to section 1471(b)(1) of the Code, any intergovernmental agreement entered into between a non-U.S. jurisdiction and the United States in connection with FATCA or any law, regulation or other official
guidance enacted in any jurisdiction implementing FATCA; and
(k) in respect of any combination of applicable Taxes referred to in the preceding clauses (a) through (j).
Notwithstanding any other provision hereof, Additional Amounts shall not be paid for any applicable Taxes if the holder of the Securities is a fiduciary, partnership, limited liability company or person other than the
sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a
partner or member of that partnership or limited liability company or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner, member or beneficial owner been the holder thereof.
Notwithstanding any other provision hereof, the Corporation, if the Corporation is an applicable withholding agent, or is otherwise required to withhold amounts under applicable law, will (A) make such withholding or
deduction required by applicable law and (B) remit the full amount deducted or withheld to the relevant taxing authority in accordance with applicable law.
Except as otherwise specified as contemplated by Section 2.1 for Securities of any series, the Corporation will pay any present or future stamp, court, documentary or similar Taxes that arise in any taxing
jurisdiction from the execution, delivery, enforcement or registration of the Securities, the indenture, or any other document or instrument required in relation thereof, and the Corporation agrees to indemnify the holders of Securities for any such
Taxes paid by such holders.
The preceding provisions of this Section 4.2 will survive any termination, defeasance or discharge of this Indenture.
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4.3 Maintenance of Offices or Agencies for Registration of Transfer, Exchange and Payment of Securities. So long as any of the Securities shall remain outstanding, the Corporation will
maintain an office or agency in the continental United States where the Securities may be presented for registration, conversion, exchange and registration of transfer as in this Indenture provided, and where notices and demands to or upon the
Corporation in respect of the Securities or of this Indenture may be served, and where the Securities may be presented for payment. In case the Corporation shall designate and maintain some office or agency other than the previously designated office
or agency, it shall give the U.S. Trustee prompt written notice thereof. In case the Corporation shall fail to maintain any such office or agency or shall fail to give such notice of the location or of any change in the location thereof to the U.S.
Trustee, presentations and demands may be made and notices may be served at the Corporate Trust Office of the U.S. Trustee.
In addition to such office or agency, the Corporation may from time to time constitute and appoint one or more other offices or agencies for such purposes with respect to Securities of any series, and one or more paying
agents for the payment of Securities of any series, in such cities or in one or more other cities, and may from time to time rescind such appointments, as the Corporation may deem desirable or expedient, and as to which the Corporation has notified
the U.S. Trustee.
4.4 Appointment to Fill a Vacancy in the Office of Trustee. The Corporation, whenever necessary to avoid or fill a vacancy in the office of either Trustee, will appoint, in the manner
provided in Section 7.10, a Trustee, so that there shall at all times be a U.S. Trustee and a Canadian Trustee (unless no longer required by the Canadian Trust Indenture Legislation) with respect to each series of Securities hereunder.
4.5 Duties of Paying Agent.
(a) If the Corporation shall appoint a Paying Agent other than the U.S. Trustee with respect to Securities of any series, it will cause such Paying Agent to execute and deliver to the U.S.
Trustee an instrument in which such Paying Agent shall agree with the U.S. Trustee, subject to the provisions of this Section and Section 12.3,
(i) that it will hold all sums held by it as such agent for the payment of the principal of or interest, if any, on the Securities of such series (whether such sums have been paid to it by the
Corporation or by any other obligor on the Securities of such series) in trust for the benefit of the holders of the Securities of such series entitled to such principal or interest and will notify the U.S. Trustee of the receipt of sums to be so
held,
(ii) that it will give the U.S. Trustee notice of any failure by the Corporation (or by any other obligor on the Securities of such series) to make any payment of the principal of or interest
on the Securities of such series when the same shall be due and payable, and
(iii) that it will at any time during the continuance of any Event of Default, upon the written request of the U.S. Trustee, deliver to the U.S. Trustee all sums so held in trust by it.
(b) Whenever the Corporation shall have one or more Paying Agents with respect to the Securities of any series, it will, on or prior to each due date of the principal of or any interest on a
Security of such series, deposit with a Paying Agent of such series a sum sufficient to pay the principal or interest so becoming due, such sum to be held in trust for the benefit of the holders of Securities of such series entitled to such principal
or interest, and (unless such Paying Agent is the U.S. Trustee) the Corporation will promptly notify the U.S. Trustee of its action or failure so to act.
(c) If the Corporation shall act as its own Paying Agent with respect to the Securities of any series, it will, on or before each due date of the principal of or any interest on a Security of
such series, set aside, segregate and hold in trust for the benefit of the holder of such Security, a sum sufficient to pay such principal or interest so becoming due and will notify the U.S. Trustee of such action, or any failure by it or any other
obligor on the Securities of such series to take such action and will at any time during the continuance of any Event of Default, upon the written request of the U.S. Trustee, deliver to the U.S. Trustee all sums so held in trust by it.
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(d) Anything in this Section to the contrary notwithstanding, the Corporation may, at any time, for the purpose of obtaining a satisfaction and discharge of this Indenture with respect to one
or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid to the U.S. Trustee all sums held in trust for such series by it, or any Paying Agent hereunder, as required by this Section, such sums are to be held by
the U.S. Trustee upon the trust herein contained.
(e) Anything in this Section to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section is subject to the provisions of Sections 12.2, 12.3 and 12.4.
4.6 Further Assurances. From time to time whenever reasonably demanded by the U.S. Trustee, the Corporation will make, execute and deliver or cause to be made, executed and delivered
any and all such further and other instruments and assurances and take all such further action as may be reasonably necessary or proper to carry out the intention of or to facilitate the performance of the terms of this Indenture or to secure the
rights and remedies hereunder of the holders of the Securities of any series.
4.7 Officer’s Certificate as to Defaults; Notices of Certain Defaults. The Corporation will, so long as any of the Securities are outstanding, deliver to the U.S. Trustee no later than
120 days after the end of each calendar year, a certificate that need not comply with Section 15.4 signed by the Corporation’s principal executive officer, principal financial officer or principal accounting officer stating that a review has
been made under his or her supervision of the activities of the Corporation during such year and of the performance under this Indenture and, to his or her knowledge, the Corporation has complied with all conditions and covenants under this Indenture
throughout such calendar year, or if there has been a default in the fulfillment of any such obligation, specifying each such default known and the nature and status thereof. For purposes of this Section, such compliance shall be determined without
regard to any period of grace or requirement of notice provided under this Indenture. In addition, the Corporation shall give the notice to the U.S. Trustee as and when required by the fourth paragraph of Section 14.1.
4.8 Waiver of Covenants. The Corporation may omit in any particular instance to comply with any covenant or condition specifically contained in this Indenture for the benefit of one or
more series of Securities, if before the time for such compliance the holders of more than 50% principal amount of the Securities of all series affected (all series voting as one class) at the time outstanding (determined as provided in Section
8.4) shall waive such compliance in such instance, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the
Corporation and the duties of the Trustee in respect of any such covenant or condition shall remain in full force and effect.
4.9 Foreign Issuer Status. The Corporation covenants that, in the event that it shall begin, or cease, to file as a “Foreign Issuer” with the U.S. Securities and Exchange Commission,
the Issuer shall promptly deliver to the U.S. Trustee an Officers’ Certificate (in a form provided by the U.S. Trustee) certifying such “reporting issuer” status and other information as the U.S. Trustee may require at such given time.
ARTICLE V
SECURITYHOLDERS’ LISTS AND REPORTS BY THE CORPORATION
AND THE TRUSTEE
5.1 Corporation to Furnish Trustee Information as to the Names and Addresses of Securityholders. The Corporation covenants and agrees that it will furnish or cause to be furnished to
the U.S. Trustee, semiannually not more than 15 days after each record date for payment of interest, and at such other times as the U.S. Trustee may request in writing within 30 days after receipt by the Corporation of any such request, a list in
such form as the U.S. Trustee may reasonably require containing all information in the possession or control of the Corporation, or any Paying Agent or any registrar of the Securities of each series, other than the U.S. Trustee, as to the names and
addresses of the holders of Securities of such series obtained (in the case of each list other than the first list) since the date as of which the next previous list was furnished; provided, however, that if the U.S. Trustee shall be the registrar of the Securities of such series, no such list need be furnished; and provided further that the Corporation shall
not be obligated to provide such a list of Securityholders at any time the list of Securityholders does not differ from the most recent list of Securityholders given to the U.S. Trustee by the Corporation. Any such list may be dated as of a date not
more than fifteen days prior to the time such information is furnished or caused to be furnished, and need not include information received after such date.
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5.2 Trustee to Preserve Information as to the Names and Addresses of Securityholders Received by It.
The U.S. Trustee shall comply with the obligations imposed upon it pursuant to Section 312 of the Trust Indenture Act.
Each and every holder of Securities, by receiving and holding the same, agrees with the Corporation and the U.S. Trustee that neither the Corporation nor the U.S. Trustee nor any Paying Agent nor any registrar shall be
held accountable by reason of the disclosure of any information as to the names and addresses of the holders of Securities in accordance with Section 312(b) of the Trust Indenture Act, regardless of the source from which such information was derived,
and that the U.S. Trustee shall not be held accountable by reason of delivering any material pursuant to a request made under Section 312(b) of the Trust Indenture Act.
5.3 Annual and Other Reports to be Filed by Corporation with Trustee.
(a) The Corporation covenants and agrees to file with the U.S. Trustee within fifteen days after the Corporation is required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Corporation may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act.
(b) The Corporation covenants and agrees to file with the U.S. Trustee and the Commission, in accordance with the rules and regulations prescribed from time to time by the Commission, such
additional information, documents, and reports with respect to compliance by the Corporation with the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations.
(c) The Corporation covenants and agrees to transmit to the holders of Securities within 30 days after the filing thereof with the U.S. Trustee, in the manner and to the extent provided in
subsection (c) of Section 5.4 with respect to reports pursuant to subsection (a) of said Section 5.4, such summaries of any information, documents and reports required to be filed by the Corporation pursuant to subsections (a) and (b)
of this Section as may be required by rules and regulations prescribed from time to time by the Commission.
(d) Delivery of such reports, information and documents to the U.S. Trustee is for informational purposes only and the U.S. Trustee’s receipt of such shall not constitute actual or
constructive notice or knowledge of any information contained therein or determinable from information contained therein, including the Corporation’s compliance with any of its covenants hereunder (as to which the U.S. Trustee is entitled to rely
exclusively on Officer’s Certificates and certificates delivered pursuant to Section 4.7).
(e) The Corporation shall be deemed to have complied with Sections 5.3(a), (b) and (c) to the extent that such information, documents and reports are filed with the Commission via
EDGAR (or any successor electronic delivery procedure).
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5.4 Trustee to Transmit Annual Report to Securityholders.
(a) On or before December 31, 2021, and on or before July 15 in every year thereafter, if and so long as any Securities are outstanding hereunder, the U.S. Trustee shall transmit to the
Securityholders as hereinafter in this Section provided, a brief report dated as of a date convenient to the U.S. Trustee no more than 60 nor less than 45 days prior thereto with respect to any of the following events which may have occurred within
the previous twelve (12) months (but if no such event has occurred within such period no report need be transmitted):
(i) Any change to its eligibility under Section 7.9, and its qualifications under Section 7.8;
(ii) The creation of or any material change to a relationship which would create a conflicting interest within the meaning of any Trust Indenture Legislation;
(iii) The character and amount of any advances (and if the U.S. Trustee elects so to state, the circumstances surrounding the making thereof) made by the U.S. Trustee (as such) which remain
unpaid on the date of such report, and for the reimbursement of which it claims or may claim a lien or charge prior to that of the Securities of any series on any property or funds held or collected by it as U.S. Trustee, except that the U.S. Trustee
shall not be required (but may elect) to report such advances if such advances so remaining unpaid aggregate not more than one-half of one percent of the principal amount of the Securities of all series outstanding as of the date of such report;
(iv) Any change to the amount, interest rate, and maturity date of all other indebtedness owing by the Corporation (or by any other obligor on the Securities) to the U.S. Trustee in its
individual capacity, on the date of such report, with a brief description of any property held as collateral security therefor, except indebtedness based upon a creditor relationship arising in any manner described in paragraph (2), (3), (4), or (6)
of subsection (b) of Section 311 of the Trust Indenture Act;
(v) Any change to the property and funds, if any, physically in the possession of the U.S. Trustee (as such) on the date of such report;
(vi) Any additional issue of Securities which the U.S. Trustee has not previously reported to Securityholders; and
(vii) Any action taken by the U.S. Trustee in the performance of its duties under this Indenture which it has not previously reported to Securityholders and which in its opinion materially
affects the Securities of any series, except action in respect of a default, notice of which has been or is to be withheld by it in accordance with the provisions of Section 6.7.
(b) The U.S. Trustee shall transmit to the Securityholders, as hereinafter provided, a brief report with respect to the character and amount of any advances (and if the U.S. Trustee elects so
to state, the circumstances surrounding the making thereof) made by the U.S. Trustee (as such) since the date of the last report transmitted pursuant to the provisions of subsection (a) of this Section (or if such report has not yet been so
transmitted, since the date of execution of this Indenture), for the reimbursement of which it claims or may claim a lien or charge prior to that of the Securities of any series on property or funds held or collected by it as U.S. Trustee, and which
it has not previously reported pursuant to this subsection, except that the U.S. Trustee shall not be required (but may elect) to report such advances if such advances so remaining unpaid aggregate not more than 10 percent of the principal amount of
Securities of all series outstanding as of the date of such report, such report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be delivered to all holders of Securities of any series, as the names and addresses of such holders shall appear upon the Register of the Securities
of such series.
(d) A copy of each such report shall, at the time of such transmission to Securityholders, be filed by the U.S. Trustee with each stock exchange upon which the Securities of any series are
listed and also with the Commission. The Corporation will promptly notify the U.S. Trustee when and as the Securities of any series become listed on any stock exchange.
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ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT
6.1 Events of Default Defined. The term “Event of Default” whenever used herein with respect to Securities of any series shall mean any one of the following events:
(a) default in the payment of any installment of interest upon any of the Securities of such series as and when the same shall become due and payable, and continuance of such default for a
period of 30 days; or
(b) default in the payment of all or any part of the principal of any of the Securities of such series as and when the same shall become due and payable whether upon Stated Maturity, upon any
redemption, by declaration or otherwise; or
(c) failure on the part of the Corporation duly to observe or perform any covenants or agreements (other than covenants to pay interest, principal and premium, which are subject to subsections
(a) and (b) above of this Section) on the part of the Corporation in the Securities or in this Indenture (including any supplemental indenture or pursuant to any Officer’s Certificate as contemplated by Section 2.1) which are for the benefit
of the Securities of such series, for a period of 90 days after there has been given, by registered or certified mail, electronic delivery or overnight air courier guaranteeing next day delivery, to the Corporation by the U.S. Trustee, or to the
Corporation and the U.S. Trustee by the holders of not less than 25% in principal amount of the Securities of such series at the time outstanding under this Indenture a written notice specifying such failure and stating that such notice is a “Notice
of Default” hereunder, unless the U.S. Trustee, or the U.S. Trustee and the holders of a principal amount of Securities of such series not less than the principal amount of Securities the holders of which gave such notice, as the case may be,
shall agree in writing to an extension of such period prior to its expiration; provided, however, that it shall not constitute an Event of Default if corrective
action is initiated by the Company within such period and is being diligently pursued; or
(d) the commencement by the Corporation of a voluntary case or proceeding under the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada) or other United
States or Canadian federal, state or provincial bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for
relief in respect of the Corporation in an involuntary case or proceeding under the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada) or other applicable United States or Canadian federal, state or provincial
bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief thereunder, or
the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Corporation or of any substantial part of the
Corporation’s property, or the making by the Corporation of an assignment for the benefit of creditors, or the admission by the Corporation in writing of the Corporation’s inability to pay the Corporation’s debts generally as they become due, or the
authorization of any such action by the Board of Directors of the Corporation; or
(e) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Corporation in an involuntary case or proceeding under the Bankruptcy and
Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada) or other applicable United States or Canadian federal, state or provincial bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the
Corporation a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Corporation under the Bankruptcy and Insolvency Act (Canada), the Companies’
Creditors Arrangement Act (Canada) or other applicable United States or Canadian federal, state or provincial law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Corporation or of any
substantial part of the Corporation’s property, or ordering the winding-up or liquidation of the Corporation’s affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period
of 90 consecutive days.
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If an Event of Default (other than an Event of Default under clause 6.1(d) or 6.1(e)) shall have occurred and be continuing, unless the principal of all the Securities shall have already become due and payable, either
the U.S. Trustee or the holders of not less than 25% in principal amount of all the then outstanding Securities of the series as to which such Event of Default under clause 6.1(a), 6.1(b) or 6.1(c) has occurred (each such series voting as a separate
class in the case of an Event of Default under clause 6.1(a), 6.1(b) or 6.1(c)), by notice in writing to the Corporation (and to the U.S. Trustee if given by Securityholders) may declare the principal amount (or if Securities of any series are
Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all the Securities of such series in the case of an Event of Default under clause 6.1(a), 6.1(b) or 6.1(c), in each case
together with any accrued interest, to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable.
If an Event of Default under clause 6.1(d) or 6.1(e) shall have occurred, the principal amount (or if Securities of any series are Original Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series) of all the Securities of such series, in each case together with any accrued interest, to be due and payable immediately without any declaration or other act on the part of the U.S. Trustee or any holder of the
Securities of such series.
The holders of a majority in principal amount of the outstanding Securities of any series may waive a default or Event of Default, other than a default in the payment of principal of, or interest on, the Securities of
such series (including the redemption price or purchase price of the Securities of such series, if applicable), or a default or Event of Default with respect to a covenant or provision that cannot be modified or amended without the consent of the
holder of each outstanding Security of such series.
The foregoing provisions, however, are subject to the condition that if, at any time after the principal amount (or specified portion thereof) of the Securities of any one or more series (or of all the Securities, as the
case may be) shall have been so declared due and payable, and before any judgment or decree for the payment of moneys due shall have been obtained or entered as hereinafter provided, the Corporation shall pay or shall deposit with the U.S. Trustee a
sum sufficient to pay all matured installments of interest upon all the Securities of such series (or upon all the Securities, as the case may be) and the principal of any and all Securities of such series (or of any and all the Securities, as the
case may be) which shall have become due otherwise than by declaration (with interest on overdue installments of interest to the extent permitted by law and on such principal at the rate or rates of interest borne by, or prescribed therefor in, the
Securities of each such series to the date of such payment or deposit) and the amounts payable to the U.S. Trustee under Section 7.6, and any and all defaults under the Indenture with respect to Securities of such series (or all Securities,
as the case may be), other than the nonpayment of principal of and any accrued interest on Securities of such series (or any Securities, as the case may be) which shall have become due by declaration, shall have been cured, remedied or waived as
provided in Section 6.6, then and in every such case the holders of more than 50% in principal amount of the Securities of such series (or of all the Securities, as the case may be) then outstanding and as to which such Event of Default has
occurred (such series or all series voting as one class, if more than one series are so entitled) by written notice to the Corporation and to the U.S. Trustee, may rescind and annul such declaration and its consequences.
In case the Trustees, any holder of Securities shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such rescission or annulment or for
any other reason or shall have been determined adversely to the Trustees, such holder of Securities then and in every such case the Corporation, the Trustees, the holders of the Securities of such series (or of all the Securities, as the case may be)
shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Corporation and the Trustees, the holders of the Securities of such series (or of all the Securities, as the case may be) shall
continue as though no such proceedings had been taken.
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6.2 Covenant of Corporation to Pay to Trustee Whole Amount Due on Securities on Default in Payment of Interest or Principal. The Corporation covenants that (1) in case default shall be
made in the payment of any installment of interest on any of the Securities of any series as and when the same shall become due and payable, and such default shall have continued for a period of 30 days, or (2) in case default shall be made in the
payment of all or any part of the principal of any of the Securities of any series as and when the same shall become due and payable, whether upon Stated Maturity, upon any redemption, by declaration of acceleration or otherwise, then, upon demand of
the U.S. Trustee, the Corporation will pay to the U.S. Trustee, for the benefit of the holders of the Securities of such series, the whole amount that then shall have become due and payable on all such Securities of such series for principal or
interest, or both, as the case may be, with interest upon the overdue principal and installments of interest (to the extent permitted by law) at the rate or rates of interest borne by or prescribed therefor in the Securities of such series; and, in
addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable compensation to the Trustees, their agents and counsel, and any expenses or disbursements reasonably incurred, and all
reasonable advances made hereunder by the Trustees, their agents, attorneys and counsel, except as a result of its gross negligence or willful misconduct.
In case the Corporation shall fail forthwith to pay such amounts upon such demand, the U.S. Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any actions or
proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Corporation or any other
obligor upon such Securities, and collect in the manner provided by law out of the property of the Corporation or any other obligor upon such Securities wherever situated the moneys adjudged or decreed to be payable.
The U.S. Trustee shall be entitled and empowered, either in its own name or as trustee of an express trust, or as attorney-in-fact for the holders of the Securities of any series, or in any one or more of such capacities
(irrespective of whether the principal of the Securities of such series shall then be due and payable, whether upon Stated Maturity, upon any redemption, by declaration of acceleration or otherwise, and irrespective of whether the U.S. Trustee shall
have made any demand pursuant to the provisions of this Section) to file and prove a claim or claims for the whole amount of principal (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal amount
as may be specified in the terms of such series) and interest owing and unpaid in respect of the Securities of such series and to file such other documents as may be necessary or advisable in order to have the claims of the U.S. Trustee (including
any claim for reasonable compensation of the Trustees, their agents and counsel, and for reimbursement of all expenses and disbursements reasonably incurred, and all reasonable advances made hereunder by the U.S. Trustees, their agents and counsel,
except as a result of its gross negligence or willful misconduct) and of the holders of the Securities of such series allowed in any equity receivership, insolvency, bankruptcy, liquidation, arrangement, readjustment, reorganization or any other
judicial proceedings relative to the Corporation or any other obligor on the Securities of such series or their creditors, or their property. The Trustees are hereby irrevocably appointed (and the successive respective holders of the Securities of
each series by taking and holding the same shall be conclusively deemed to have so appointed the Trustees) the true and lawful attorney-in-fact of the respective holders of the Securities of such series, with authority to make and file in the
respective names of the holders of the Securities of such series, or on behalf of the holders of the Securities of such series as a class, any proof of debt, amendment of proof of debt, claim, petition or other document in any such proceeding and to
receive payment of any sums becoming distributable on account thereof, and to execute any such other papers and documents and to do and perform any and all such acts and things for and on behalf of such holders of the Securities of such series, as
may be necessary or advisable in the opinion of the U.S. Trustee in order to have the respective claims of the U.S. Trustee and of the holders of the Securities of such series allowed in any such proceeding, and to receive payment of or on account of
such claims and to distribute the same, and any 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 U.S. Trustee and, in the
event that the U.S. Trustee shall consent to the making of such payments directly to the holders, to pay to the U.S. Trustee any amount due to it under Section 7.6; and to the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustees, their agents and counsel, and any other amounts due the U.S. Trustee under Section 7.6 hereof out of the estate in any such proceeding, shall be unpaid for any reason, payment of the same shall be
secured by a lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise; provided, however, that nothing herein shall be deemed to authorize the U.S. Trustee to authorize or consent to or vote for or accept or
adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment or composition affecting the Securities of such series or the rights of any holder thereof, or to authorize the U.S. Trustee to vote in respect of the claim of
any holder of Securities of such series in any such proceeding.
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All rights of action and of asserting claims under this Indenture, or under any of the Securities of any series, may be enforced by the Trustee without the possession of any of the Securities of such series, or the
production thereof in any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustees, shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall be, after provision
for the payment of the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel, for the ratable benefit of the holders of the Securities of such series.
6.3 Application of Moneys Collected by Trustee. Any moneys or properties collected by the U.S. Trustee pursuant to this Article VI, and after an Event of Default any money or other
property distributable in respect of the Corporation’s obligations under this Indenture, shall be applied in the order following, at the date or dates fixed by the U.S. Trustee for the distribution of such moneys, upon presentation of the several
Securities in respect of which moneys have been collected, and stamping thereon the payment, if only partially paid, and upon surrender thereof if fully paid:
First: To the payment of reasonable costs and expenses of collection, and of all amounts payable to the Trustees in each of its capacities hereunder or in connection with the Securities (including any
predecessor Trustee) under Section 7.6;
Second: In case the principal of the outstanding Securities in respect of which moneys have been collected shall not have become due and be unpaid, to the payment of any unpaid interest on such
Securities, in the order of the maturity of the installments of such interest, with interest upon the overdue installments of interest (so far as permitted by law and to the extent that such interest has been collected by a Trustee) at the rate or
rates of interest borne by, or prescribed therefor in, such Securities, such payments to be made ratably to the persons entitled thereto, without discrimination or preference;
Third: In case the principal of the outstanding Securities in respect of which such moneys have been collected shall have become due and be unpaid, whether upon Stated Maturity, upon any redemption, by
declaration of acceleration or otherwise, to the payment of the whole amount then owing and unpaid upon such Securities for principal and interest, if any, with interest on the overdue principal and any installments of interest (so far as permitted
by law and to the extent that such interest has been collected by a Trustee) at the rate or rates of interest borne by, or prescribed therefor in, such Securities; and in case such moneys shall be insufficient to pay in full the whole amount so due
and unpaid upon such Securities, then to the payment of such principal and interest, without preference or priority of principal over interest, or of interest over principal, or of any installment of interest over any other installment of interest,
or of any Security over any other Security, ratably to the aggregate of such unpaid principal and interest; and
Fourth: To the payment of the remainder, if any, to the Corporation, its successors or assigns, or to whomsoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction
may direct.
The U.S. Trustee may fix a record date and payment date for any payment or distribution to holders of Securities pursuant to this Section.
6.4 Limitation on Suits by Holders of Securities. No holder of any Security of any series shall have any right by virtue or by availing of any provision of this Indenture to institute
any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless such holder previously shall have given to the U.S. Trustee
written notice of an Event of Default and of the continuance thereof, as hereinbefore provided, and unless also the holders of more than 25% in principal amount of all the Securities of such series at the time outstanding (considered as one class)
shall have made written request upon the U.S. Trustee to institute such action, suit or proceeding in its own name as U.S. Trustee hereunder and shall have offered to the U.S. Trustee security and/or indemnity satisfactory to it as it may require
against the costs, expenses and liabilities to be incurred therein or thereby, and the U.S. Trustee, for 60 days after its receipt of such notice, request and offer of indemnity and/or security, shall have declined to institute any such action, suit
or proceeding and no direction inconsistent with such written request shall have been given to the U.S. Trustee pursuant to Section 6.6; it being understood and intended, and being expressly covenanted by the taker and holder of every
Security with every other taker and holder and the U.S. Trustee, that no one or more holders of Securities shall have any right in any manner whatever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the
rights of the holders of any other of such Securities, or to obtain or seek to obtain priority over or preference to any other such holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable
and common benefit of all holders of Securities. For the protection and enforcement of the provisions of this Section, each and every Securityholder and the U.S. Trustee shall be entitled to such relief as can be given either at law or in equity.
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Notwithstanding any other provisions in this Indenture, the right of any holder of any Security to receive payment of the principal of and interest on such Security, on or after the respective due dates expressed in such
Security (or, in the case of redemption on or after the date fixed for redemption), or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such holder.
6.5 On Default Trustee May Take Appropriate Action. In case of an Event of Default hereunder the U.S. Trustee may in its discretion proceed to protect and enforce the rights vested in
it by this Indenture by such appropriate judicial proceedings as the U.S. Trustee shall deem most effectual to protect and enforce any of such rights, either by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether
for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the U.S. Trustee by this Indenture or
by law. Except as provided in the last paragraph of Section 2.7, all powers and remedies given by this Article to the U.S. Trustee or to the Securityholders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any
thereof or of any other powers and remedies available to the U.S. Trustee or the holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture,
and no delay or omission of the U.S. Trustee, of any holder of any of the Securities to exercise any right or power accruing upon any Event of Default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed
to be a waiver of any such default or an acquiescence therein; and, subject to the provisions of Section 8.4, every power and remedy given by this Article or by law to the U.S. Trustee, to the Securityholders may be exercised from time to
time, and as often as shall be deemed expedient, by the U.S. Trustee, by the Securityholders, as the case may be.
No delay or omission of the U.S. Trustee or of any holder of any Securities 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 an acquiescence therein. Every right and remedy given by this Article VI or by law to the U.S. Trustee or to the holders may be exercised from time to time, and as often as may be deemed expedient, by the U.S. Trustee or by the
holders, as the case may be.
6.6 Rights of Holders of Majority in Principal Amount of Securities to Direct Trustee and to Waive Default. The holders of more than 50% in principal amount of the Securities of
any one or more series or of all the Securities, as the case may be (voting as one class), at the time outstanding (determined as provided in Section 8.4) shall have the right to direct the time, method, and place of conducting any proceeding
for any remedy available to the U.S. Trustee, or exercising any trust or power conferred on the U.S. Trustee under this Indenture with respect to such one or more series; provided, however, that subject to Section 7.1, the U.S. Trustee shall have the right to decline to follow any such direction if the U.S. Trustee being advised by counsel determines that the action so directed may not lawfully be
taken, or if the U.S. Trustee in good faith shall, by a Responsible Officer or Officers of the U.S. Trustee, determine that the proceedings so directed would be illegal or would conflict with this Indenture, or involve it in personal liability or be
unduly prejudicial to the rights of Securityholders of such one or more series not parties to such direction (it being understood that the U.S. Trustee does not have an affirmative duty to ascertain whether or not any such directions are unduly
prejudicial to such Holders), and provided further that nothing in this Indenture shall impair the right of the U.S. Trustee to take any action deemed proper by the U.S. Trustee and which is not inconsistent
with such direction by such Securityholders of such one or more series. The holders of more than 50% in principal amount of the Securities of each series as to which a default or an Event of Default hereunder has occurred (each series voting as a
separate class) at the time outstanding (determined as provided in Section 8.4), may waive any past default or Event of Default hereunder with respect to such series and its consequences, except a default in the payment of the principal of or
interest on any of such Securities or in respect of a covenant or provision hereof which under Article X cannot be modified or amended without the consent of the holder of each Security so affected. Upon any such waiver, 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 impair any right consequent thereon. Any such waiver shall
be deemed to be on behalf of the holders of all the Securities of such series.
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6.7 Trustee to Give Notice of Defaults Known to It, but May Withhold in Certain Circumstances. The U.S. Trustee shall, within 90 days after the occurrence of any default or Event of
Default of which a Responsible Officer has received written notice (except with respect to a default in the payment of principal or interest on any Securities, whereby the U.S. Trustee gives notice upon its actual knowledge of such default) hereunder
with respect to the Securities of any series, give to the holders of the Securities of such series in the manner and to the extent provided in subsection (c) of Section 5.4 with respect to reports pursuant to subsection (a) of said Section
5.4, notice of such default of which a Responsible Officer of the U.S. Trustee has received written notice, unless such default shall have been cured, remedied or waived before the giving of such notice (the term “default” for the purposes of
this Section being hereby defined means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series); provided, however, that,
except in the case of a default in the payment of the principal of or interest on any Security of such series or in the payment of any sinking fund installment with respect to any Security of such series, the U.S. Trustee shall be protected in
withholding such notice if and so long as a committee of directors or Responsible Officers of the U.S. 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 6.1(c), no such notice to Holders shall be given until at least 90 days after the occurrence thereof.
6.8 Requirement of an Undertaking to Pay Costs in Certain Suits Under the Indenture or Against the Trustee. 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 either Trustee for any action taken or omitted by it
as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, 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 a Trustee, to any suit instituted by any holder
of Securities of any series, or group of such Securityholders, holding in the aggregate more than 10 percent in principal amount of all the Securities (all series considered as one class) outstanding, or to any suit instituted by any Securityholder
for the enforcement of the payment of the principal of or interest on any Security, on or after the due date expressed in such Security (or in the case of any redemption, on or after the date fixed for redemption).
ARTICLE VII
CONCERNING THE TRUSTEE
7.1 Upon Event of Default Occurring and Continuing, Trustee Shall Exercise Powers Vested in It, and Use Same Degree of Care and Skill in Their Exercise, as a Prudent Man Would Use. The
U.S. Trustee, prior to the occurrence of an Event of Default and after the curing, remedying or waiving of all Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default has occurred (which has not been cured, remedied or waived) of which a Responsible Officer of the U.S. Trustee has actual notice, the U.S. Trustee shall 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.
No provision of this Indenture shall be construed to relieve the Trustees from liability for their own gross negligent action, own grossly negligent failure to act, or their own willful misconduct; provided, however, that
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(a) Prior to the occurrence of an Event of Default and after the curing, remedying or waiving of all Events of Default which may have occurred:
(i) the duties and obligations of the Trustees shall be determined solely by the express provisions of this Indenture and the Trustees 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 Trustees; and
(ii) in the absence of bad faith on the part of a Trustee, such Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any
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 provision hereof are specifically required to be furnished to the Trustee, such
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) A Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers of the Trustee, unless it shall be proved that such Trustee was grossly
negligent in ascertaining the pertinent facts upon which such judgment was made;
(c) The Trustees shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the holders of Securities pursuant to Section
6.6 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustees, or exercising any trust or power conferred upon the Trustees, 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 Trustees shall be
subject to the provisions of this Section 7.1; and
(e) None of the provisions contained in this Indenture shall require a Trustee 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 there is reasonable ground for believing that the repayment of such funds or adequate indemnity and/or security against such risk or liability is not assured to it. The Trustees
shall not be required to give any bond or surety in respect of the performance of their powers or duties hereunder.
7.2 Reliance on Documents, Opinions, Etc. Except as otherwise provided in Section 7.1:
(a) The Trustees may rely and shall be fully protected in acting or refraining from acting in good faith upon any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document (whether in its original or facsimile form) reasonably believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties;
(b) Any request, direction, order or demand of the Corporation mentioned herein shall be sufficiently evidenced by an Officer’s Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any Resolution of the Corporation may be evidenced to the Trustees by a copy thereof certified by the Corporate Secretary or an Assistant Corporate Secretary of the Corporation;
(c) The Trustees may consult with counsel of their selection and the advice of such counsel or any Opinion of Counsel with respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;
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(d) The Trustees 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 Securityholders pursuant to this
Indenture, unless such Securityholders shall have offered to the Trustees security and/or indemnity satisfactory to them against the costs, expenses (including attorneys’ fees and expenses) and liabilities that might be incurred by it in complying
with such request or direction;
(e) The Trustees shall not be liable for any action taken or omitted to be taken 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;
(f) The Trustees 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, approval, bond, debenture, note, other evidence of indebtedness or other paper or document, or inquire as to the performance by the Corporation or the Guarantors of any of their covenants in this Indenture, unless requested
in writing to do so by the holders of Securities pursuant to Section 6.6, but the Trustees may make such further inquiry or investigation into such facts or matters as it may see fit; provided, however, that if the payment within a reasonable time to the Trustees of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the applicable
Trustee, not reasonably assured to such Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require adequate indemnity and/or security against such costs, expenses or liabilities as a condition to so proceeding; and
provided further, that nothing in this subsection (f) shall require a Trustee to give the Securityholders any notice other than that required by Section 6.7. The reasonable expense of every such
examination shall be paid by the Corporation or, if paid by a Trustee, shall be repaid by the Corporation upon demand;
(g) The Trustees may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustees shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(h) The Trustees shall be under no responsibility for the approval by it in good faith of any expert for any of the purposes expressed in this Indenture;
(i) The Trustees shall not be deemed to have notice of any default or Event of Default unless written notice of any event which is in fact such a default is received by the received by a
Responsible Officer of the U.S. Trustee at its Corporate Trust Office, with a copy to the Canadian Trustee (which delivery shall not constitute notice herein) from the Corporation or Securityholders of 25% of the aggregate principal amount of the
Securities, and such notice references the Corporation, the Securities and this Indenture;
(j) The rights, privileges, protections, immunities and benefits given to the Trustees, including without limitation their right to be compensated, reimbursed, and indemnified, are extended
to, and shall be enforceable by, the Trustees in each of their capacities hereunder and in connection with the Securities, whether as Agent or otherwise, and to each agent, custodian and other Person employed to act hereunder;
(k) In no event shall the Trustees 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, epidemics or pandemics, and interruptions, loss or
malfunctions of utilities, communications or computer (software and hardware) services or other unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility; it being understood that the Trustees shall use
reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances;
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(l) The Trustees may request that the Corporation deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to furnish the
Trustees with Officer’s Certificates, Corporation orders or requests and any other matters or directions pursuant to this Indenture;
(m) In no event shall the Trustees be responsible or liable for any special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of
profit), irrespective of whether the Trustees have been advised of the likelihood of such loss or damage and regardless of the form of action; and
(n) The permissive rights or powers of the Trustees to do things enumerated in this Indenture shall not be construed as a duty of the Trustees.
(o) The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (for the purposes of this Section, “Instructions”) given pursuant to the
Indenture and delivered using Electronic Means; provided, however, that the Corporation shall provide to the Trustee an incumbency certificate listing authorized
representatives and containing specimen signatures of such authorized representatives, which incumbency certificate shall be amended by the Corporation whenever a person is to be added or deleted from the listing. If the Corporation elects to give
the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Corporation understands and agrees that the
Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an authorized representative listed on the incumbency certificate
provided to the Trustee have been sent by such authorized representative. The Corporation shall be responsible for ensuring that only authorized representatives transmit such Instructions to the Trustee and that the Corporation and all authorized
representative are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Corporation. The Trustee shall not be liable for any losses, costs or
expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Corporation agrees: (i) to assume
all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that
it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Corporation;
(iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the
Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.
7.3 Trustee Not Liable for Recitals in Indenture or in Securities. The recitals contained herein and in the Securities (other than the certificate of authentication on the Securities)
shall be taken as the statements of the Corporation, and the Trustees do not assume any responsibility for their correctness. The Trustees make no representations as to the validity or sufficiency of this Indenture or of the Securities. The Trustees
shall not be accountable for the use or application by the Corporation of the proceeds of the Securities of any series or for funds received and disbursed in accordance with this Indenture. The Trustees shall have no responsibility or liability with
respect to any information, statement or recital in any offering memorandum, prospectus, prospectus supplement or other disclosure material prepared or distributed with respect to the issuance of any series of the Securities.
7.4 May Hold Securities. The Trustees or any agent of the Trustees, in their individual or any other capacity, may become the owner or pledgee of Securities and, subject to Section
7.8, may transact business with the Corporation with the same rights it would have if it were not a Trustee or such agent.
7.5 Moneys Received by Trustee to be Held in Trust without Interest. Subject to the provisions of Section 12.4, all moneys received by the Trustees shall, until used or applied
as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law. No Trustee shall be under any liability for interest on any moneys received by it
hereunder.
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7.6 Trustee Entitled to Compensation, Reimbursement and Indemnity. The Corporation covenants and agrees to pay to the Trustees and any predecessor Trustees from time to time, and the
Trustees shall be entitled to, such compensation as shall be agreed to in writing between the Corporation and the Trustees (which shall not be limited by any provision of law in regard to the compensation of a trustee of any express trust), and, the
Corporation will pay or reimburse the Trustees and any predecessor Trustees upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustees in connection with the acceptance or administration of this
Indenture (including the reasonable compensation and the reasonable expenses and disbursements of its agents and counsel and of all persons not regularly in its employ) except any such expense, disbursement or advance as may arise from its gross
negligence or willful misconduct (as determined by a final, non-appealable judgment of a court of competent jurisdiction). The Corporation also covenants and agrees to indemnify each of the Trustees, any predecessor Trustee and their officers,
directors, employees and agents for, and to hold them harmless against, any loss, damage, claim, liability or expense incurred without gross negligence or willful misconduct (as determined by a final, non-appealable judgment of a court of competent
jurisdiction) on their part and arising out of or in connection with the acceptance or administration of this Indenture and performance of their duties hereunder, or the exercise of their rights and powers under the Securities including the costs and
expenses (including reasonable fees and disbursements of their counsel) of enforcing this Indenture (including this Section) and the Securities and of defending themselves against any claim or liability in connection with the exercise or performance
of any of the powers or duties hereunder. The obligations of the Corporation under this Section to compensate the Trustees, to pay or reimburse the Trustees for expenses, disbursements and advances and to indemnify and hold harmless the Trustees
shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture and the resignation or removal of the Trustees. Such additional indebtedness shall be secured by a lien prior to that of the
Securities upon all property and funds held or collected by the Trustees as such, except funds held in trust for the payment of principal of or interest, if any, on particular Securities.
Without prejudice to any other rights available to the Trustees under applicable law, when a Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 6.1(d) or (e),
the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable federal or state bankruptcy, insolvency or other similar law.
“Trustee” for the purposes of this Section shall include any predecessor Trustee and any Trustee in each of its capacities hereunder and each agent, custodian and other person employed to act hereunder; provided,
however, that the gross negligence or willful misconduct of any Trustee hereunder shall not affect the rights of any other Trustee hereunder.
7.7 Right of Trustee to Rely on Officer’s Certificate where No Other Evidence Specifically Prescribed. Except as otherwise provided in Section 7.1, whenever in the
administration of this Indenture the Trustees shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting to take any action hereunder, the Trustees (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officer’s Certificate which, upon receipt of such request, shall be promptly delivered by the Corporation.
7.8 Disqualification; Conflicting Interests. If a Trustee has or shall acquire any conflicting interest, within the meaning of any Trust Indenture Legislation, the Trustee shall either
eliminate such interest within 90 days, apply to the Commission for permission to continue as Trustee, or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Legislation and this Indenture.
There shall be excluded from the operation of Trust Indenture Act Section 310(b)(1) each series of Securities under this Indenture and any indenture or indentures under which other securities or certificates of interest or participation in other
securities of the Corporation are outstanding if the requirements for such exclusion set forth in Trust Indenture Act Section 310(b)(1) are met. The Trustees represent and warrant to the Corporation that they have no conflicting interest or material
conflict of interest within the meaning of any Trust Indenture Legislation.
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7.9 Requirements for Eligibility of Trustee. There shall at all times be a U.S. Trustee hereunder that is a corporation, organized and doing business under the laws
of the United States of America, any state thereof or the District of Columbia, eligible under Sections 310(a)(1) and (5) of the Trust Indenture Act to act as trustee under an indenture qualified under the Trust Indenture Act and that has a combined
capital and surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of at least $50,000,000 subject to supervision or examination by federal or state authority. If at any time the U.S. 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. For so long as required by the Canadian Trust Indenture Legislation, there shall be a Canadian
Trustee under this Indenture. The Canadian Trustee shall at all times be a corporation organized under the laws of Canada or any province thereof and shall be authorized under the laws of Ontario and, if so required, duly registered to carry on trust
business therein. If at any time the Canadian Trustee shall cease to be eligible in accordance with this Section 7.9, it shall resign immediately in the manner and with the effect hereinafter specified in Section.
7.10 Resignation and Removal of Trustee.
(a) No Trustee, or any trustee or trustees hereafter appointed, may at any time resign with respect to one or more or all series of Securities by giving written notice of such resignation to
the Corporation and by giving to the holders of Securities of the applicable series notice thereof in the manner and to the extent provided in subsection (c) of Section 5.4 with respect to reports pursuant to subsection (a) of Section 5.4.
Upon receiving such notice of resignation and if the Corporation shall deem it appropriate evidence satisfactory to it of such written notice, the Corporation shall promptly appoint a successor Trustee with respect to the applicable series (it being
understood that any successor Trustee may be appointed with respect to the Securities of one or more or all of such series and at any time there shall be only one U.S. Trustee and one Canadian Trustee with respect to the Securities of any particular
series) by written instrument, in duplicate, executed pursuant to a Resolution of the Corporation, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor Trustee. If no successor Trustee shall have been
so appointed with respect to any series and have accepted appointment within 30 days after such written notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee, or any
Securityholder who has been a bona fide holder of a Security or Securities of the applicable series for at least six months may, subject to the provisions of Section 6.8, on behalf of himself and all others similarly situated, petition any
such court for the appointment of a successor Trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint a successor Trustee.
(b) In case at any time any of the following shall occur:
(i) either Trustee shall fail to comply with Section 7.8 after written request therefor by the Corporation or by any Securityholder who has been a bona fide holder of a Security or
Securities of the applicable series for at least six months, or
(ii) either Trustee shall cease to be eligible in accordance with the provisions of Section 7.9 and shall fail to resign after written request therefor by the Corporation or by any such
Securityholder, or
(iii) either Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of such Trustee or of its property shall be appointed, or any public officer
shall take charge or control of such Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, the Corporation may remove the applicable Trustee with respect to the applicable series and appoint a successor Trustee with respect to the applicable series by written instrument, in duplicate,
executed pursuant to a Resolution of the Corporation, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor Trustee, or, subject to the provisions of Section 6.8, any Securityholder who has
been a bona fide holder of a Security or Securities of the applicable series 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 and the
appointment of a successor Trustee with respect to the applicable series. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor Trustee.
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(c) The holders of more than 50% in principal amount of the Securities of any one series voting as a separate class or all series voting as one class at the time outstanding (determined as
provided in Section 8.4) may at any time remove a Trustee with respect to the applicable series or all series, as the case may be, and appoint a successor Trustee with respect to the applicable series or all series, as the case may be, by
written instrument or instruments signed by such holders or their attorneys-in-fact duly authorized, or by the affidavits of the permanent chairman and permanent secretary of a meeting of the Securityholders (as elected in accordance with Section
9.5) evidencing the vote upon a resolution or resolutions submitted thereto with respect to such removal and appointment (as provided in Article IX), and by delivery thereof to the Trustee so removed, to the successor Trustee and to the
Corporation.
(d) Any resignation or removal of the Trustee and any appointment of a successor Trustee pursuant to any of the provisions of this Section shall become effective upon acceptance of
appointment by the successor Trustee as provided in Section 7.11.
(e) If a Canadian Trustee under this Indenture is no longer required by the Canadian Trust Indenture Legislation, then the Corporation, by a Resolution of the Corporation, may remove the
Canadian Trustee after giving 30 days’ prior written notice to the Trustees. For the avoidance of doubt, the Canadian Trustee is acting hereunder solely to satisfy the requirements of the Canadian Trust Indenture Legislation and is not acting as
Paying Agent, Registrar or Transfer Agent for the Securities issued.
7.11 Acceptance by Successor Trustee. Any successor Trustee with respect to all series of Securities appointed as provided in Section 7.10 shall execute, acknowledge and deliver
to the Corporation and to its predecessor Trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor Trustee with respect to all series 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 with respect to such series of its predecessor hereunder, with like effect as if originally named as Trustee herein; but, on the written
request of the Corporation or of the successor Trustee, the Trustee ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of Section 7.6, execute and deliver an instrument transferring to such successor
Trustee all the rights and powers with respect to such series of the Trustee so ceasing to act. Upon the request of any such successor Trustee, the Corporation shall execute any and all instruments in writing for more fully and certainly vesting in
and confirming to such successor Trustee all such rights and powers. Any Trustee ceasing to act shall, nevertheless, retain a lien upon all property or funds held or collected by such Trustee or any successor Trustee to secure any amounts then due it
pursuant to the provisions of Section 7.6.
In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Corporation, the retiring Trustee and each successor Trustee with respect to the
Securities of such series shall execute and deliver an indenture supplemental hereto wherein each 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 such 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 such 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 multiple Trustees, 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 such series to which the appointment of
such successor Trustee relates; but, on written request of the Corporation or any successor Trustee, 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 such series to which the appointment of such successor Trustee relates.
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No successor Trustee shall accept appointment as provided in this Section unless at the time of such acceptance such successor Trustee shall be qualified under the provisions of Section 7.8 and eligible under the
provisions of Section 7.9.
Upon acceptance of appointment by a successor Trustee as provided in this Section, the successor Trustee shall at the expense of the Corporation transmit notice of the succession of such Trustee hereunder to the holders
of Securities of any applicable series in the manner and to the extent provided in subsection (c) of Section 5.4 with respect to reports pursuant to subsection (a) of said Section 5.4.
7.12 Successor to Trustee by Merger, Amalgamation, Consolidation or Succession to Business. Any corporation into which a Trustee may be merged, arranged, amalgamated, or converted or
with which it may be consolidated, or any corporation resulting from any merger, arrangement, amalgamation, conversion or consolidation to which such Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate
trust business of such Trustee, shall be the successor of such Trustee hereunder, provided such corporation shall be qualified under the provisions of Section 7.8 and eligible under the provisions of Section 7.9, without the execution
or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to a Trustee shall succeed to the trusts created by this Indenture any of the Securities shall have been authenticated but not delivered, any such successor to a Trustee may adopt the
certificate of authentication of any predecessor Trustee, and deliver such Securities so authenticated; and in case at that time any of the Securities shall not have been authenticated, any successor to a Trustee may authenticate such Securities
either in the name of any predecessor hereunder or in the name of the successor Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Securities or in this Indenture provided that the certificate of
the Trustee shall have; 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.
7.13 Limitations on Preferential Collection of Claims by the Trustee. The Trustees shall comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship
described in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
7.14 Third Party. The Corporation hereby represents to the Canadian Trustee that any account to be opened by, or interest to be held by, the Canadian Trustee in connection with this Indenture, for or to
the credit of the Corporation, either:
(a) is not intended to be used by or on behalf of any third party; or
(b) is intended to be used by or on behalf of a third party, in which case, the Corporation hereto agrees to complete and execute forthwith a declaration in the Canadian Trustee’s prescribed
form as to the particulars of such third party.
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7.15 Not Bound to Act. The Canadian Trustee shall retain the right not to act and shall not be liable for refusing to act if, due to a lack of information or for any other reason
whatsoever, the Canadian Trustee, in its sole judgment, determines that such act might cause it to be in non-compliance with any applicable anti-money laundering or anti-terrorist legislation, regulation or guideline. Further, should the Canadian
Trustee, in its sole judgment, determine at any time that its acting under this Indenture has resulted in its being in non-compliance with any applicable anti-money laundering or anti-terrorist legislation, regulation or guideline, then it shall have
the right to resign on 30 days’ written notice to the Corporation, notwithstanding the provisions of Section 7.10, provided that:
(a) the Canadian Trustee’s written notice shall describe the circumstances of such non-compliance; and
(b) if such circumstances are rectified to the Canadian Trustee’s satisfaction within such 30 day period, then such resignation shall not be effective.
7.16 Privacy (Canadian Trustee). The parties acknowledge that federal and/or provincial legislation that addresses the protection of individuals’ personal information (collectively, “Privacy
Laws”) applies to obligations and activities under this Indenture. Despite any other provision of this Indenture, neither the Corporation nor the Canadian Trustee shall take or direct any action that would contravene or cause the other to
contravene applicable Privacy Laws. The Corporation shall, prior to transferring or causing to be transferred personal information to the Canadian Trustee, obtain and retain required consents of the relevant individuals to the collection, use and
disclosure of their personal information, or shall have determined that such consents either have previously been given upon which the parties can rely or are not required under Privacy Laws. The Canadian Trustee shall use commercially reasonable
efforts to ensure that its services hereunder comply with Privacy Laws. Specifically, the Canadian Trustee agrees: (a) to have a designated chief privacy officer either with the Canadian Trustee or its Parent; (b) to maintain policies and
procedures to protect personal information and to receive and respond to any privacy complaint or inquiry; (c) to use personal information solely for the purposes of providing its services under or ancillary to this Indenture and not to use it for
any other purpose except with the consent of or direction from the Corporation or the individual involved; (d) not to sell or otherwise improperly disclose personal information to any third party; and (e) to employ administrative, physical and
technological safeguards to reasonably secure and protect personal information against loss, theft, or unauthorized access, use or modification.
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
8.1 Evidence of Action by Securityholders. Whenever in this Indenture it is provided that the holders of a specified percentage in principal amount of the Securities of any or all
series may take any action (including the making of any demand or request, the giving of any notice, consent, or waiver or the taking of any other action), the fact at the time of taking any such action the holders of such specified percentage have
joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by such Securityholders in person or by agent or proxy appointed in writing, or (b) by the record of such holders of Securities voting in
favor thereof at any meeting of such Securityholders duly called and held in accordance with the provisions of Article IX, or (c) by a combination of such instrument or instruments and any such record of such a meeting of such Securityholders.
If there shall be more than one Trustee acting hereunder with respect to separate series of Securities, such Trustees shall collaborate, if necessary, in acting under Article IX and in determining whether the holders of
a specified percentage in principal amount of the Securities of any or all series have taken any such action.
8.2 Proof of Execution of Instruments and of Holding of Securities. Subject to the provisions of Sections 7.1, 7.2 and 9.5, proof of the execution of any
instrument by a Securityholder or its agent or proxy and proof of the holding by any person of any of the Securities shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such person of any instrument may be proved in any reasonable manner acceptable to the Trustees;
(b) The ownership of Securities of any series shall be proved by the Register of such Securities of such series, or by certificates of the Security registrar thereof;
(c) The Trustees shall not be bound to recognize any person as a Securityholder unless and until title to the Securities held by him is proved in the manner in this Article VIII provided;
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(d) The record of any Securityholders’ meeting shall be proved in the manner provided in Section 9.6; and
(e) The Trustees may accept such other proof or require such additional proof of any matter referred to in this Section as it shall deem reasonable.
8.3 Who May be Deemed Owners of Securities. Prior to due presentment for registration of transfer of any Security, the Corporation, the Trustees and any agent of the Corporation or the
Trustees may deem and treat the person in whose name such Security shall be registered upon the Register of Securities of the series of which such Security is a part as the absolute owner of such Security (whether or not payments in respect of such
Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or an account of the principal of and interest, subject to Section 2.3, on such Security and for all
other purposes; and neither the Corporation nor the Trustees nor any agent of the Corporation or the Trustees shall be affected by any notice to the contrary. All such payments so made to any such holder for the time being, or upon its order, shall
be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any such Security.
8.4 Securities Owned by Corporation or Controlled or Controlling Persons Disregarded for Certain Purposes. In determining whether the holders of the requisite principal amount of
Securities have concurred in any demand, direction, request, notice, vote, consent, waiver or other action under this Indenture, Securities which are owned by the Corporation or any other obligor on the Securities or by any person directly or
indirectly controlling or controlled by or under direct or indirect common control with the Corporation or any other obligor on the Securities shall be disregarded and deemed not to be outstanding for the purpose of any such determination, provided that for the purposes of determining whether the Trustees shall be protected in relying on any such demand, direction, request, notice, vote, consent, waiver or other action, only Securities which a
Responsible Officer of the Trustees assigned to its principal office actually knows are so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as outstanding for the purposes of this Section, if
the pledgee shall establish to the satisfaction of the U.S. Trustee the pledgee’s right to vote such Securities and that the pledgee is not a person directly or indirectly controlling or controlled by or under direct or indirect common control with
the Corporation or any such other obligor. Upon request of the U.S. Trustee, the Corporation shall furnish to the U.S. Trustee promptly an Officer’s Certificate listing and identifying all Securities, if any, known by the Corporation to be owned or
held by or for the account of the Corporation or any other obligor on the Securities or by any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Corporation or any other obligor on the
Securities; and, subject to the provisions of Section 7.1, the U.S. Trustee shall be entitled to accept such Officer’s Certificate as conclusive evidence of the facts therein set forth and of the fact that all Securities not listed therein
are outstanding for the purpose of any such determination.
8.5 Instruments Executed by Securityholders Bind Future Holders. At any time prior to (but not after) the evidencing to the Trustees, as provided in Section 8.1, of the taking
of any action by the holders of the percentage in principal amount of the Securities specified in this Indenture in connection with such action, any holder of a Security which is shown by the evidence to be included in the Securities the holders of
which have consented to such action may, by filing written notice with the U.S. Trustee at its principal office and upon proof of holding as provided in Section 8.2, revoke such action so far as concerns such Security. Except as aforesaid any
such action taken by the holder of any Security and any direction, demand, request, notice, waiver, consent, vote or other action of the holder of any Security which by any provisions of this Indenture is required or permitted to be given shall be
conclusive and binding upon such holder and upon all future holders and owners of such Security, and of any Security issued in lieu thereof or upon registration of transfer thereof, irrespective of whether any notation in regard thereto is made upon
such Security. Any action taken by the holders of the percentage in principal amount of the Securities of any or all series specified in this Indenture in connection with such action shall be conclusively binding upon the Corporation, the Trustees
and the holders of all of the Securities of such series subject, however, to the provisions of Section 7.1.
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ARTICLE IX
SECURITYHOLDERS’ MEETINGS
9.1 Purposes for which Meetings May be Called. A meeting of holders of Securities of any or all series may be called at any time and from time to time pursuant to the provisions of this
Article for any of the following purposes:
(a) To give any notice to the Corporation or to the Trustees, or to give any directions to the Trustees, or to consent to the waiving of any default hereunder and its consequences, or to take
any other action authorized to be taken by holders of Securities of any or all series, as the case may be, pursuant to any of the provisions of Article VI;
(b) To remove a Trustee and appoint a successor Trustee pursuant to the provisions of Article VII;
(c) To consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 10.2; or
(d) To take any other action authorized to be taken by or on behalf of the holders of any specified principal amount of the Securities of any or all series, as the case may be, under any
other provision of this Indenture or under applicable law.
9.2 Manner of Calling Meetings. The U.S. Trustee may at any time call a meeting of Securityholders to take any action specified in Section 9.1, to be held at such time and at
such place, as the U.S. Trustee shall determine. Notice of every meeting of Securityholders setting forth the time and place of such meeting and in general terms the action proposed to be taken at such meeting, shall be delivered not less than 10 nor
more than 90 days prior to the date fixed for the meeting.
9.3 Call of Meeting by Corporation or Securityholders. In case at any time the Corporation, pursuant to a resolution of its Board of Directors, or the holders of not less than 10
percent in principal amount of the Securities of any or all series, as the case may be, then outstanding, shall have requested the U.S. Trustee to call a meeting of holders of Securities of any or all series, as the case may be, to take any action
authorized in Section 9.1 by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the U.S. Trustee shall not have delivered notice of such meeting within 20 days after receipt of such request,
then the Corporation or such holders of Securities in the amount above specified may determine the time and place for such meeting and may call such meeting to take any action authorized in Section 9.1, by delivering notice thereof as
provided in Section 9.2.
9.4 Who May Attend and Vote at Meetings. To be entitled to vote at any meeting of Securityholders a person shall (a) be a holder of one or more Securities with respect to which the
meeting is being held, or (b) be a person appointed by an instrument in writing as proxy by such holder of one or more such Securities. The only persons who shall be entitled to be present or to speak at any meeting of Securityholders shall be the
persons entitled to vote at such meeting and their counsel and any representatives of the Trustees and their counsel and any representatives of the Corporation and its counsel.
9.5 Regulations May be Made by Trustee. Notwithstanding any other provisions of this Indenture, the U.S. Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Securityholders, in regard to proof of the holding of Securities and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall think fit. Except as otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified in
Section 8.2 and the appointment of any proxy shall be proved in the manner specified in said Section 8.2; provided, however, that such regulations may provide that
written instruments appointing proxies regular on their face, may be presumed valid and genuine without the proof hereinabove or in said Section 8.2 specified.
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The U.S. Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Corporation or by Securityholders as provided in Section 9.3, in
which case the Corporation or the Securityholders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by majority vote of the
meeting.
Subject to the provisions of Section 8.4, at any meeting each Securityholder or proxy shall be entitled to one vote for each $1,000 principal amount of Securities held or represented by him or her, provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not outstanding and ruled by the permanent chairman of the
meeting to be not outstanding; provided, further, that each holder of Original Issue Discount Securities shall be entitled to one vote for each $1,000 amount which would be due upon acceleration of the Original Issue Discount Security on the date of
the meeting. Neither a temporary nor a permanent chairman of the meeting shall have a right to vote other than by virtue of Securities held by him or her or instruments in writing as aforesaid duly designating him or her as the person to vote on
behalf of other Securityholders. Any meeting of Securityholders duly called pursuant to the provisions of Section 9.2 or 9.3 may be adjourned from time to time, and the meeting may be held so adjourned without further notice.
At any meeting of Securityholders, the presence of persons holding or representing Securities in principal amount sufficient to take action on the business for the transaction of which such meeting was called shall
constitute a quorum, but, if less than a quorum is present, the person or persons holding or representing a majority in principal amount of the Securities represented at the meeting may adjourn such meeting with the same effect for all intents and
purposes, as though a quorum had been present.
9.6 Manner of Voting at Meetings and Record to be Kept. The vote upon any resolution submitted to any meeting of Securityholders shall be by written ballots on which shall be subscribed
the signatures of the holders of Securities or of their representatives by proxy and the principal amount or principal amounts of the Securities held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes
who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the permanent secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of
the proceedings of each meeting of Securityholders shall be prepared by the permanent secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was delivered as provided in Section 9.2. The record shall show the principal amount or principal
amounts of the Securities voting in favor of, against, or abstaining from voting on, any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and permanent secretary of the meeting and one of the duplicates
shall be delivered to the Corporation and the other to the U.S. Trustee to be preserved by the U.S. Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the matters therein stated.
9.7 Exercise of Rights of Trustee and Securityholders Not to be Hindered or Delayed. Nothing in this Article contained shall be deemed or construed to authorize or permit, by reason of
any call of a meeting of Securityholders or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the U.S. Trustee, to the Securityholders
under any of the provisions of this Indenture or of the Securities.
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ARTICLE X
SUPPLEMENTAL INDENTURES
10.1 Purposes for which Supplemental Indentures May be Entered into Without Consent of Securityholders. Without the consent of any Securityholders, the Corporation and the Trustees may
from time to time, and at any time enter into an indenture or indentures supplemental hereto, in form satisfactory to such Trustees (which shall comply with the provisions of the Trust Indenture Legislation as then in effect), for one or more of the
following purposes:
(a) To evidence the succession of another Person to the Corporation, or successive successions, and the assumption by the successor of the covenants, agreements and obligations of the
Corporation pursuant to Article XI hereof;
(b) To add to the covenants of the Corporation such further covenants, restrictions or conditions as the Corporation in good faith shall consider to be for the protection of the holders of all
or any series of Securities (and if such covenants, restrictions or conditions are to be for the benefit of less than all series of Securities, stating that such covenants, restrictions or conditions are expressly being included solely for the
benefit of such series), and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions or conditions a default or an Event of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth; provided, however, that in respect to any such additional covenant, restriction or condition such supplemental
indenture 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 default or may limit the remedies
available to the Trustees upon such default;
(c) To change or eliminate any of the provisions of this Indenture; provided, however, that any such change
or elimination shall become effective only when there is no Security of any series outstanding created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision;
(d) To establish the form or terms of Securities of any series as permitted by Section 2.1 and 2.2;
(e) As determined by the Corporation in good faith, to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provisions contained herein or in any supplemental indenture;
(f) To make such other provision in regard to matters or questions arising under this Indenture or any supplemental indenture or to make any other changes in the provisions of this Indenture;
provided, however, that such action shall not adversely affect the interest of the holders of Securities of any series in any material respect;
(g) To mortgage or pledge to the Trustees as security for the Securities any property or assets;
(h) To qualify, or maintain the qualification of, the Indenture under the Trust Indenture Legislation;
(i) To comply with the requirements of Canadian laws applicable to the Indenture;
(j) To evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities 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, all as provided in Section 7.11; or
(k) To supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Section
12.5, provided that any such action shall not adversely affect the interests of any holder of a Security of such series or any other Security or coupon in any material respect.
The Trustees are hereby authorized to join with the Corporation in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer, mortgage, pledge or assignment of any property thereunder, but the Trustees shall not be obligated to enter into any such supplemental indenture which affects the Trustees’ own rights, duties or immunities under this
Indenture or otherwise.
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Any supplemental indenture authorized by the provisions of this Section may be executed by the Corporation and the Trustees without the consent of the holders of any of the Securities at the time outstanding,
notwithstanding any of the provisions of Section 10.2.
10.2 Modification of Indenture with Consent of Holders of a Majority in Principal Amount of Securities. With the consent of the holders of more than 50% in principal amount of the
Securities of each series at the time outstanding (determined as provided in Section 8.4) affected by such supplemental indenture (each series voting as a separate class), the Corporation and the Trustees may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall be in conformity with the provisions of the Trust Indenture Legislation as then in effect) for the purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the holders of the Securities of each such series; provided,
however, that no such supplemental indenture shall (i) change the fixed Maturity of any Securities, or reduce the rate or extend the time of payment of any interest thereon or on any overdue principal amount or reduce the principal amount
thereof, or change the provisions pursuant to which the rate of interest on any Security is determined if such change could reduce the rate of interest thereon, or reduce the minimum rate of interest thereon, or reduce any amount payable upon any
redemption thereof, or adversely affect any right to convert the Securities in accordance therewith, or reduce the amount to be paid at Maturity or make the principal thereof or any interest thereon or on any overdue principal amount payable in any
coin or currency other than that provided in the Security or impair or affect the right to institute suit for the payment thereof when due, or, if such Security shall so provide, any right of repayment at the option of the holder, in each case,
without the consent of the holder of each Security so affected, (ii) reduce the aforesaid percentage of Securities, the holders of which are required to consent to any such supplemental indenture without the consent of the holders of all Securities
then outstanding, or (iii) modify any of the provisions of this Section, Section 4.8 or Section 6.6, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived
without the consent of the holders of all Securities then outstanding; provided, however, that this clause (iii) shall not be deemed to require the consent of any holder with respect to changes in the
references to “the Trustee” or “the Trustees” and concomitant changes in this Section, or the deletion of this proviso, in accordance with Section 7.11.
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which
modifies the rights of holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the holders of Securities of any other series.
Upon the request of the Corporation, evidenced by an Officer’s Certificate authorizing the execution of any such supplemental indenture, and upon the filing with the U.S. Trustee of evidence of the consent of
Securityholders as aforesaid, the Trustees shall join with the Corporation in the execution of such supplemental indenture unless such supplemental indenture affects the Trustees’ own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustees may in their discretion, but shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Corporation and the Trustees of any supplemental indenture pursuant to the provisions of this Section, the Corporation shall deliver a notice to the holders of Securities of each
series so affected, setting forth in general terms the substance of such supplemental indenture. Any failure of the Corporation to deliver such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such
supplemental indenture.
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10.3 Effect of Supplemental Indentures. Upon the execution of any supplemental indenture pursuant to the provisions of this Article, this Indenture shall be and be deemed to be modified
and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustees, the Corporation and the holders of Securities affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
The Trustees shall be entitled to receive, and subject to the provisions of Section 7.1 shall be entitled to conclusively rely upon, an Officer’s Certificate and an Opinion of Counsel stating that the execution
of such supplemental indenture is authorized or permitted by this Indenture and all conditions precedent herein relating to the execution of such supplemental indenture have been complied with.
10.4 Securities May Bear Notation of Changes by Supplemental Indentures. Securities authenticated and delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article, or after any action taken at a Securityholders’ meeting pursuant to Article IX, may bear a notation in form approved by the U.S. Trustee as to any matter provided for in such supplemental indenture or as to any action
taken at any such meeting. If the Corporation or the U.S. Trustee shall so determine, new Securities so modified as to conform, in the opinion of the U.S. Trustee and the Board of Directors of the Corporation, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Corporation, authenticated by the U.S. Trustee and delivered in exchange for the Securities then outstanding.
10.5 Revocation and Effect of Consents. Subject to Section 8.5, until an amendment, supplement, waiver or other action becomes effective, a consent to it by a Securityholder of a
Security is a continuing consent conclusive and binding upon such Securityholder and every subsequent Securityholder of the same Security or portion thereof, and of any Security issued upon the registration of transfer thereof or in exchange therefor
or in place thereof, even if notation of the consent is not made on any such Security.
The Corporation may, but shall not be obligated to, fix a record date for the purpose of determining the Securityholders entitled to consent to any amendment, supplement or waiver. If a record date is fixed, then,
notwithstanding the preceding paragraph, those Persons who were Securityholders at such record date (or their duly designated proxies), and only such Persons, shall be entitled to consent or revoke such consent to such amendment, supplement or
waiver, whether or not such Persons continue to be Securityholders after such record date. No such consent shall be valid or effective for more than 180 days after such record date.
After an amendment, supplement, waiver or other action becomes effective, it shall bind every Securityholder.
10.6 Conformity with Trust Indenture Legislation. Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Legislation.
ARTICLE XI
CONSOLIDATION, AMALGAMATION, ARRANGEMENT, MERGER, SALE OR CONVEYANCE
11.1 Corporation May Consolidate, etc., on Certain Terms. The Corporation covenants that it will not consummate (1) any consolidation, amalgamation, arrangement or merger of the
Corporation with or into any Person or Persons or (2) any sale, lease or other transfer in one transaction or a series of related transactions of all or substantially all of its assets to any Person other than one of its subsidiaries unless (i) the
Corporation shall be the continuing Person, or the successor shall be a corporation, limited liability company, partnership or trust organized and existing under the laws of Canada (or any province or territory of Canada) or the United States of
America or a State thereof or the District of Columbia and such Person shall expressly assume the due and punctual payment of the principal of and interest on all the Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be performed by the Corporation by supplemental indenture in form satisfactory to the Trustees, executed and delivered to the Trustees by such Person, and (ii) immediately after
giving effect to such consolidation, amalgamation, arrangement or merger, or such sale, lease or other transfer, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and
be continuing.
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11.2 Successor Substituted. Upon any consolidation, amalgamation, arrangement or merger by the Corporation with or into any other Person or any sale or conveyance by the Corporation of
all or substantially all of its assets to any Person in accordance with Section 11.1, the successor formed by such consolidation, amalgamation or arrangement or into which the Corporation is merged or to which such sale or conveyance is made
shall succeed to, and be substituted for, and may exercise every right and power of, the Corporation under this Indenture with the same effect as if such successor had been named as the Corporation herein; and in the event of any such sale or
conveyance, the Corporation (which term shall for this purpose mean the Person named as the “Corporation” in the first paragraph of this Indenture or any successor which shall theretofore become such in the manner described in Section 11.1),
other than in the case of a lease, shall be discharged from all obligations and covenants under this Indenture and the Securities and may be dissolved and liquidated. Such successor thereupon may cause to be signed, and may issue either in its own
name or in the name of the Corporation, any or all of the Securities issuable hereunder which theretofore shall not have been delivered to the Trustees; and upon the order of such successor, instead of the Corporation, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the U.S. Trustee shall authenticate and shall deliver any Securities which previously shall have been signed and delivered by the officers of the Corporation to the U.S. Trustee, and any
Securities which such successor thereafter shall cause to be signed and delivered to the U.S. Trustee. All the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as though all of such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, amalgamation, arrangement, merger, sale or conveyance such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be issued as may be
appropriate.
11.3 Opinion of Counsel to Trustee. The Trustees shall be entitled to receive, and subject to the provisions of Section 7.1 shall be entitled to rely upon, an Officer’s
Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation, amalgamation, arrangement, merger, sale or conveyance and any such assumption, complies with the provisions of this Article and that all conditions precedent
herein provided for relating to such transaction have been complied with.
ARTICLE XII
SATISFACTION AND DISCHARGE OF INDENTURE, UNCLAIMED MONEYS
12.1 Satisfaction and Discharge of Indenture. If (a) the Corporation shall deliver to the U.S. Trustee for cancellation all Securities of any series theretofore authenticated
(other than any Securities of such series which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.7) and not theretofore canceled, or (b) all the Securities of such series not
theretofore canceled or delivered to the U.S. Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements
satisfactory to the U.S. Trustee for the giving of notice of redemption, and the Corporation shall irrevocably deposit in trust with the U.S. Trustee money and/or securities backed by the full faith and credit of the United States that through the
payment of the principal thereof and the interest thereon in accordance with their terms, will provide money in an amount sufficient to pay at Stated Maturity or upon redemption all of such Securities not theretofore canceled or delivered to the U.S.
Trustee for cancellation, including principal and any interest due or to become due to such date of Stated Maturity or redemption date, as the case may be, and if in either case the Corporation shall also pay or cause to be paid all other sums
payable hereunder by the Corporation with respect to Securities of such series, then this Indenture shall cease to be of further effect with respect to Securities of such series, (except as to (i) remaining rights of registration of transfer,
conversion, substitution and exchange, rights provided in Section 2.7, the Corporation’s obligation to maintain a Paying Agent pursuant to Section 4.3 and the Corporation’s right of optional redemption of Securities of such series,
(ii) rights hereunder of holders to receive payments of principal of, and any interest on, the Securities of such series, and other rights, duties and obligations of the holders of Securities of such series as beneficiaries hereof with respect to the
amounts, if any, so deposited with the U.S. Trustee, and (iii) the rights, obligations and immunities of the U.S. Trustee hereunder), and the U.S. Trustee, on demand of the Corporation, and at the cost and expense of the Corporation, shall execute
proper instruments acknowledging satisfaction of and discharging this Indenture with respect to the Securities of such series. The Corporation hereby agrees to compensate the Trustees for any services thereafter reasonably and properly rendered and
to reimburse the Trustees for any costs or expenses theretofore and thereafter reasonably and properly incurred by the Trustees in connection with this Indenture or the Securities of such series. Notwithstanding the satisfaction and discharge of this
Indenture with respect to the Securities of any or all series, the obligations of the Corporation to the Trustees under Section 7.6 shall survive.
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12.2 Application by Trustee of Funds Deposited for Payment of Securities. Subject to Section 12.4, all moneys deposited with the U.S. Trustee pursuant to Section 12.1
shall be held in trust and applied by it to the payment, either directly or through any Paying Agent (including the Corporation acting as its own Paying Agent), to the holders of the particular Securities of such series, for the payment or redemption
of which such moneys have been deposited with the U.S. Trustee, of all sums due and to become due thereon for principal and interest.
12.3 Repayment of Moneys Held by Paying Agent. In connection with the satisfaction and discharge of this Indenture with respect to Securities of any series, all moneys with respect to
Securities of such series then held by any Paying Agent under the provisions of this Indenture shall, upon demand of the Corporation, be paid to the U.S. Trustee and thereupon such Paying Agent shall be released from all further liability with
respect to such moneys.
12.4 Repayment of Moneys Held by Trustee. Any moneys deposited with the U.S. Trustee or any Paying Agent for the payment of the principal of or any interest on any Securities of any
series and not applied but remaining unclaimed by the holders of Securities of such series for two years after the date upon which such payment shall have become due and payable, shall, at the request of the Corporation, be repaid to the Corporation
by the U.S. Trustee or by such Paying Agent; and the holder of any of the Securities of such series entitled to receive such payment shall thereafter look only to the Corporation for the payment thereof; provided,
however, that the U.S. Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Corporation cause to be published once a week for two successive weeks (in each
case on any day of the week) in an Authorized Newspaper, or delivered to the registered holders thereof, a notice that said moneys have not been so applied and that after a date named therein any unclaimed balance of said money then remaining will be
returned to the Corporation.
12.5 Defeasance and Covenant Defeasance.
(a) Unless, pursuant to Section 2.1, either or both of (i) defeasance of the Securities of or within a series under clause (b) of this Section 12.5 or (ii) covenant defeasance
of the Securities of or within a series under clause (c) of this Section 12.5 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 12.5 (with
such modifications thereto as may be specified pursuant to Section 2.1 with respect to any Securities), shall be applicable to such Securities, and the Corporation may at its option by Resolution of the Corporation, at any time, with respect
to such Securities, elect to have Section 12.5(b) or Section 12.5(c) be applied to such outstanding Securities upon compliance with the conditions set forth below in this Section 12.5.
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(b) Upon the Corporation’s exercise of the above option applicable to this Section 12.5(b) with respect to any Securities of or within a series, the Corporation shall be deemed to have
been discharged from its obligations with respect to such outstanding Securities on the date the conditions set forth in clause (d) of this Section 12.5 are satisfied (hereinafter, “defeasance”). For this purpose, such defeasance means
that the Corporation shall be deemed to have paid and discharged the entire indebtedness represented by such outstanding Securities, which shall thereafter be deemed to be “outstanding” only for the purposes of clause (e) of this Section 12.5
and the other Sections of this Indenture referred to in clauses (i) and (ii) below, and to have satisfied all of its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the U.S. Trustee, at the
expense of the Corporation, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of holders of such outstanding Securities to
receive, solely from the trust fund described in clause (d) of this Section 12.5 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, and Additional Interest, if
any, with respect to, such Securities when such payments are due, and any rights of such holder to convert or exchange such Securities into Capital Stock or other securities, (ii) the obligations of the Corporation and the U.S. Trustee with respect
to such Securities under Sections 2.5, 2.7, 4.2 and 12.4, with respect to the payment of Additional Interest, if any, on such Securities (but only to the extent that the Additional Interest payable with respect to such
Securities exceeds the amount deposited in respect of such Additional Interest pursuant to Section 12.5(d)(i) below), and with respect to any rights to convert or exchange such Securities into Capital Stock or other securities, (iii) the
rights, powers, trusts, duties and immunities of the Trustees hereunder (including under Section 7.6) and (iv) this Section 12.5. The Corporation may exercise its option under this Section 12.5(b) notwithstanding the prior
exercise of its option under clause (c) of this Section 12.5 with respect to such Securities.
(c) Upon the Corporation’s exercise of the above option applicable to this Section 12.5(c) with respect to any Securities of or within a series, the Corporation shall be released from
any covenant applicable to such Securities specified pursuant to Section 2.1(t), with respect to such outstanding Securities on and after the date the conditions set forth in clause (d) of this Section 12.5 are satisfied (hereinafter,
“covenant defeasance”), and such Securities shall thereafter be deemed to be not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of holders (and the consequences of any thereof) in connection with any
such covenant, 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, the Corporation 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 6.1(c) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture
and such Securities shall be unaffected thereby.
(d) The following shall be the conditions to application of clause (b) or (c) of this Section 12.5 to any outstanding Securities of or within a series:
(i) The Corporation shall irrevocably have deposited or caused to be deposited with the U.S. Trustee (or another trustee satisfying the requirements of Section 7.9 who shall agree to
comply with the provisions of this Section 12.5 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, (1) an amount in Dollars, or (2) Government Obligations applicable to such Securities 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 (and premium, if any) and interest, if any, on such Securities, money in an amount, or (3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of
such principal and interest, in the opinion of a nationally recognized firm of independent public accountants that is nationally recognized in the United States expressed in a written certification thereof delivered to the U.S. Trustee, to pay and
discharge, and which shall be applied by the U.S. Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, and, to the extent that such Securities provide for the payment of
Additional Interest thereon and the amount of any such Additional Interest is at the time of deposit reasonably determinable by the Corporation (in the exercise by the Corporation of its sole and absolute discretion), any Additional Interest with
respect to, such outstanding Securities to and including the Stated Maturity of such principal or installment of principal or interest or the redemption date established pursuant to clause (iv) below, if any, and (z) 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.
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(ii) Such 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 Corporation is a party or by which it is bound.
(iii) Solely in the case of an election under clause (b) of this Section 12.5, no Event of Default or event which with notice or lapse of time or both would become an Event of Default
with respect to such Securities shall have occurred and be continuing on the date of such deposit and, with respect to defeasance only, 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).
(iv) If the Securities are to be redeemed prior to Stated Maturity (other than from mandatory sinking fund payments or analogous payments), notice of such redemption shall have been duly given
pursuant to this Indenture or provision therefor satisfactory to the U.S. Trustee shall have been made.
(v) The Corporation shall have delivered to the U.S. Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant
defeasance under clause (b) or (c) of this Section 12.5 (as the case may be) have been complied with.
(vi) (A) The Corporation shall have delivered to the U.S. Trustee an Opinion of Counsel to the effect that beneficial owners of such Securities will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of the Corporation’s exercise of its option under clause (b) or (c) of this Section 12.5, and will be subject to U.S. federal income tax on the same amount and in the same manner and at the same times
as would have been the case if such defeasance or covenant defeasance had not occurred, which Opinion of Counsel must be based, solely in the case of a defeasance under clause (b) of this Section 12.5, upon a ruling of the U.S. Internal
Revenue Service to the same effect or a change in applicable federal income tax law or related treasury regulations after the date of this Indenture. Notwithstanding the foregoing, the Opinion of Counsel required with respect to a legal defeasance
need not be delivered if all of the Securities not theretofore delivered to the U.S. Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year under arrangements satisfactory
to the U.S. Trustee for the giving of notice of redemption by the U.S. Trustee in the name, and at the expense, of the Corporation; and (B) the Corporation shall have delivered to the U.S. Trustee either an Opinion of Counsel in Canada or a ruling
from the Canada Revenue Agency, in each case, confirming that the holders of such Securities will not recognize income, gain or loss for Canadian federal income tax purposes as a result of such discharge and defeasance or covenant defeasance and will
be subject to Canadian federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such discharge and defeasance or covenant defeasance had not occurred.
(vii) Notwithstanding any other provisions of this Section 12.5(d), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms,
conditions or limitations which may be imposed on the Corporation in connection therewith pursuant to Section 2.1.
(e) Subject to the provisions of Section 7.5, all money and Government Obligations (or other property as may be provided pursuant to Section 2.1) (including the proceeds
thereof) deposited with the U.S. Trustee (or other qualifying trustee, collectively for purposes of this Section 12.5(e), the “Trustee”) pursuant to clause (d) of Section 12.5 in respect of any outstanding Securities of any
series 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 (including the Corporation acting as its own Paying Agent)
as the Trustee may determine, 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 and Additional Interest, if any, but such money need not be segregated from other
funds except to the extent required by law.
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The Corporation shall pay and indemnify the Trustee against any tax, or fee or other charge, in each case, imposed by a governmental authority, imposed on or assessed against the Government Obligations deposited pursuant
to this Section 12.5 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of or in respect of the holders of such outstanding Securities.
Anything in this Section 12.5 to the contrary notwithstanding, the Trustee shall deliver or pay to the Corporation from time to time upon request by the Corporation any money or Government Obligations (or other
property and any proceeds therefrom) held by it as provided in clause (d) of this Section 12.5 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 a defeasance or covenant defeasance, as applicable, in accordance with this Section 12.5.
Any trustee appointed pursuant to Section 12.5(d)(i) for the purpose of holding money or Government Obligations deposited pursuant to that Subsection shall be appointed under an agreement in form acceptable to
the Trustee and shall provide to the Trustee a certificate of such trustee, upon which certificate the Trustee shall be entitled to conclusively rely, that all conditions precedent provided for herein to the related defeasance or covenant defeasance
have been complied with. In no event shall the Trustee be liable for any acts or omissions of said trustee.
If the Trustee (or other qualifying trustee) is unable to apply any money or Government Obligations in accordance with Section 12.2 or 12.5, as applicable, by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such application, the Corporation’s obligations under this Indenture and the Securities shall be revived and reinstated as though no deposit had occurred pursuant to Section
12.1 or 12.5 until such time as the Trustee (or other qualifying trustee) is permitted to apply all such money or Government Obligations in accordance with Section 12.2 or 12.5, as applicable; provided, however, that if the Corporation has made any payment of principal of or any premium or interest on any Securities because of the reinstatement of its obligations, the Corporation
shall be subrogated to the rights of the holders of such Securities to receive such payment from the money or Government Obligations held by the Trustee (or other qualifying trustee).
ARTICLE XIII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS, DIRECTORS AND EMPLOYEES
13.1 Incorporators, Stockholders, Officers, Directors and Employees of Corporation Exempt from Individual Liability. No recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator, stockholder, officer, director or employee, as such, past, present or future, of the Corporation or of any
successor, either directly or through the Corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations, and that no personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers, directors or employees, as such, of the Corporation or
any successor, or any of them, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom; and that any
and all such personal liability of every name and nature, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against every such incorporator, stockholder, officer, director or employee, as
such, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom are hereby expressly waived and
released as a condition of and as a consideration for, the execution of this Indenture and the issue of such Securities.
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ARTICLE XIV
[Reserved]
ARTICLE XV
MISCELLANEOUS PROVISIONS
15.1 Successors and Assigns of Corporation Bound by Indenture. All the covenants, stipulations, promises and agreements in this Indenture contained by or in behalf of the Corporation
shall bind its successors and assigns, whether so expressed or not.
15.2 Acts of Board, Committee or Officer of Successor Valid. Any act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board,
committee or officer or officers of the Corporation shall and may be done and performed with like force and effect by the like governing body or bodies or authorized person or persons of any Person that shall at the time be the lawful sole successor
of the Corporation.
15.3 Required Notices or Demands May be Served by Mail. Any notice or demand which by any provisions of this Indenture is required or permitted to be given or served by the Trustees, by
the holders of Securities to or on the Corporation may be given or served by registered mail postage prepaid addressed (until another address is filed by the Corporation with the Trustees for such purpose), or overnight air courier guaranteeing next
day delivery as follows: Algonquin Power & Utilities Corp., 354 Davis Road, Oakville, Ontario L6J 2X1, Attn: Chief Legal Officer. Any notice, direction, request, demand, consent or waiver by the Corporation, by any Securityholder or by any holder
of a Preferred Security to or upon the U.S. Trustee shall be deemed to have been sufficiently given, made or filed, for all purposes, if given, made or filed in writing and received by a Responsible Officer of the U.S. Trustee at its Corporate Trust
Office, with a copy to the Canadian Trustee (which delivery shall not constitute notice herein).
Any notice or communication to a Holder shall be mailed by first class mail, certified or registered, return receipt requested, by electronic delivery or by overnight air courier guaranteeing next day delivery to its
address shown on the register kept by the registrar. Any notice or communication shall also be so delivered to any Person described in TIA Section 313(c), to the extent required by the TIA. Failure to deliver a notice or communication to a holder or
any defect in it shall not affect its sufficiency with respect to other holders. Notwithstanding any other provision of this Indenture or any Security, where this Indenture or any Security provides for notice of any event (including any notice of
redemption or repurchase) to a holder of a global Security (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depository (or its designee) pursuant to the standing instructions from the Depository or its designee,
including by electronic mail in accordance with Applicable Procedures.
15.4 Officer’s Certificate and Opinion of Counsel to be Furnished upon Applications or Demands by the Corporation. Upon any application or request by the Corporation to the Trustees to
take any action under any provision of this Indenture, the Corporation shall furnish to the Trustees an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture 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 or any of them is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to Section 4.7) shall comply with the provisions of
TIA Section 314(e) and shall include:
(i) |
a statement that the Person making such certificate or opinion has read such covenant or condition;
|
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(ii) |
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;
|
(iii) |
a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied
with; and
|
(iv) |
a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
|
15.5 Payments Due on Saturdays, Sundays and Holidays. In any case where the date of payment of interest on or principal of the Securities of any series or the date fixed for any
redemption of any Security of any series shall not be a Business Day, then payment of interest or principal need not be made on such date, but shall be made on the next succeeding Business Day with the same force and effect as if made on the date
fixed for the payment of interest on or principal of the Security or the date fixed for any redemption of any Security of such series, and no additional interest shall accrue for the period after such date and before payment.
15.6 Provisions Required by Trust Indenture Act to Control. If and to the extent that any provision of this Indenture limits, qualifies or conflicts with another provision included in
this Indenture which is required to be included in this Indenture by any of Sections 310 to 317, inclusive, of the Trust Indenture Act through operation of Section 318 thereof, such required provision shall control.
15.7 Indenture and Securities to be Construed in Accordance with the Laws of the State of New York. This Indenture and each Security shall be governed by the laws of the State of New
York, and for all purposes shall be construed in accordance with the laws of said State (without regard to conflicts of laws principles thereof). Notwithstanding the preceding sentence of this Section 15.7, the exercise, performance or
discharge by the Canadian Trustee of any of its rights, powers, duties or responsibilities hereunder shall be construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein.
15.8 Provisions of the Indenture and Securities for the Sole Benefit of the Parties and the Securityholders. Nothing in this Indenture or in the Securities, expressed or implied, shall
give or be construed to give any person, firm or corporation, other than the parties hereto, their successors and assigns, and the holders of the Securities, any legal or equitable right, remedy or claim under or in respect of this Indenture, or
under any covenant, condition and provision herein contained; all its covenants, conditions and provisions being for the sole benefit of the parties hereto and their successors and assigns and of the holders of the Securities.
15.9 Indenture May be Executed in Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together
constitute but one and the same instrument. The words “execution,” 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 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.
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15.10 Conversion of Currency. The Corporation covenants and agrees that the following provisions shall apply to conversion of currency in the case of the Securities 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 any currency (the “Judgment Currency”) an
amount due or contingently due in the currency of the Securities of any series and this Indenture (the “Required Currency”), then the Corporation or its agent shall make the conversion at the rate of exchange prevailing on the Business Day
before the day on which a final judgment which is not appealable or is not appealed is given or the order of enforcement is made, as the case may be, unless a court shall otherwise determine; and
(ii) If there is a change in the rate of exchange prevailing between the Business Day before the day on which the judgment referred to in (i) above 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 Corporation 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 Corporation at any time while any amount or damages owing under the Securities and this Indenture, or any judgment or order rendered in respect
thereof, shall remain outstanding, the Corporation shall indemnify and hold the Holders of Securities and the Trustees harmless against any deficiency arising or resulting from any variation in rates of exchange between (i) the date as of which the
equivalent of the amount in the Required Currency due or contingently due under the Securities and this Indenture, other than under this Section 15.10(b), is calculated for the purposes of such winding-up and (ii) the final date for the
filing of proofs of claim in such winding-up. For the purpose of this Section 15.10(b), the final date for the filing of proofs of claim in the winding-up of the Corporation 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 Corporation may be ascertained for such winding-up prior to payment by the liquidator or otherwise in respect thereto.
(c) The obligations contained in Sections 15.10(a)(ii) and 15.10(b) shall constitute separate and independent obligations of the Corporation from its other obligations under
the Securities and this Indenture, shall give rise to separate and independent causes of action against the Corporation, shall apply irrespective of any waiver or extension granted by any Holder or the applicable 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 the Corporation for a liquidated sum in respect of amounts due hereunder, other than under Section 15.10(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 applicable Trustee, as the case may be, and no proof or evidence of any actual loss shall be required by
the Corporation or the applicable liquidator. In the case of Section 15.10(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 in Canadian dollars, the Bank of Canada daily average exchange
rate for purchases on the relevant date of the Required Currency with the Judgment Currency, as reported on the “Daily Exchange Rates” page of the website of the Bank of Canada, or by such other means of reporting the Bank of Canada daily average
exchange rate as may be determined by the Corporation or its agent; or (ii) in all other cases, the rate at which in accordance with normal banking procedures the U.S. 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.
15.11 Table of Contents, Headings, etc. The Table of Contents, cross reference table and the titles and headings of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
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15.12 Patriot Act Requirements of Trustee. The parties hereto acknowledge that in order to help the United States government fight the funding of terrorism and money laundering activities,
pursuant to Federal regulations that became effective on October 1, 2003 (Section 326 of the USA PATRIOT Act) all financial institutions are required to obtain, verify, record and update information that identifies each person establishing a
relationship or opening an account. The parties to this Indenture agree that they will provide to the U.S. Trustee such information as it may request, from time to time, in order for the U.S. Trustee to satisfy the requirements of the USA PATRIOT
Act, including but not limited to the name, address, tax identification number and other information that will allow it to identify the individual or entity who is establishing the relationship or opening the account and may also ask for formation
documents such as articles of incorporation or other identifying documents to be provided.
15.13 Jury Trial Waiver. EACH OF THE CORPORATION, THE HOLDERS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
15.14 Submission to Jurisdiction. The Corporation hereby irrevocably submits to the jurisdiction of any New York State court sitting in the Borough of Manhattan in the City of New York or
any federal court sitting in the Borough of Manhattan in the City of New York in respect of any suit, action or proceeding arising out of or relating to this Indenture and the Securities, and irrevocably accepts for itself and in respect of its
property, generally and unconditionally, jurisdiction of the aforesaid courts. The Corporation irrevocably appoints CT Corporation as its agent to receive service of process or other legal summons for purposes of any such suit, action or proceeding
that may be instituted in any state or federal court in the City and County of New York.
15.15 Tax Withholding. In order to comply with Sections 871(m), 1441, 1442 and 1471 through 1474 of the Internal Revenue Code of 1986, as amended from time to time, and the regulations
promulgated thereunder (inclusive of directives, guidelines and interpretations promulgated by competent authorities) in effect from time to time (“Applicable Law”) that a foreign financial institution, or issuer, trustee, paying agent, holder
or other institution is or has agreed to be subject to related to the Indenture, the Corporation agrees (i) to provide to the Trustees sufficient information about Holders or other applicable parties and/or transactions (including any modification to
the terms of such transactions) in the Corporation’s possession that is reasonably requested by the Trustee so the Trustee can determine whether it has tax related obligations under Applicable Law and (ii) that the Trustee and the Paying Agent shall
be entitled to make any withholding or deduction from payments under this Indenture to the extent necessary to comply with Applicable Law. The terms of this paragraph shall survive the termination of this Indenture.
15.16 Sanctions Representations. The Corporation covenants and represents that:
(a) none of it, any of its subsidiaries, or, to the knowledge of the Corporation, any of its other affiliates, directors or officers are the target or subject of any sanctions enforced by the
US Government, (including, without limitation, the Office of Foreign Assets Control of the US Department of the Treasury or the US Department of State), the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other
relevant sanctions authority (collectively “Sanctions”);
(b) none of it, any of its subsidiaries, or, to the knowledge of the Corporation, any of its other affiliates, directors or officers will directly or indirectly use any funds received
pursuant to this Indenture or the Securities (i) to fund or facilitate any activities of or business with any person who, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities of
or business with any country or territory that is the target or subject of Sanctions, or (iii) in any other manner that will result in a violation of Sanctions by any person.
52
15.17 Information Sharing. BNY Trust Company of Canada is a wholly-owned subsidiary of The Bank of New York Mellon Corporation, a global financial organization that operates in and
provides services and products to clients through its affiliates and subsidiaries located in multiple jurisdictions (the “BNY Mellon Group”). The BNY Mellon Group may (i) centralize in one or more affiliates and subsidiaries certain
activities (the “Centralized Functions”), including audit, accounting, administration, risk management, legal, compliance, sales, product communication, relationship management, and the compilation and analysis of information and data
regarding the Corporation (which, for purposes of this provision, includes the name and business contact information for the Corporation’s employees and representatives) and the accounts established pursuant to this Agreement (“Information”)
and (ii) use third party service providers to store, maintain and process the Information (“Outsourced Functions”). Notwithstanding anything to the contrary contained elsewhere in this Agreement and solely in connection with the Centralized
Functions and/or Outsourced Functions, the Corporation consents to the disclosure of, and authorize BNY Trust Company of Canada to disclose, the Information to (i) other members of the BNY Mellon Group (and their respective officers, directors and
employees) and to (ii) third-party service providers (but solely in connection with Outsourced Functions), in each case who are required to maintain the confidentiality of the Information. In addition, the BNY Mellon Group may aggregate the
Information with other data collected and/or calculated by the BNY Mellon Group, and the BNY Mellon Group will own all such aggregated data, provided that the BNY Mellon Group shall not distribute the aggregated data in a format that identifies the
Information with the Corporation specifically. The Corporation represents that the Corporation is authorized to consent to the foregoing and that the disclosure of the Information in connection with the Centralized Functions and/or Outsourced
Functions does not, to the best of its knowledge (without any independent investigation), violate any relevant Canadian or U.S. data protection legislation. The Corporation also consents to the disclosure of the Information to governmental and
regulatory authorities in jurisdictions where the BNY Mellon Group operates as required by law or applicable rules or orders.
[Signature page follows]
53
IN WITNESS WHEREOF, each of ALGONQUIN POWER & UTILITIES CORP., THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. and BNY TRUST COMPANY OF CANADA has caused this Indenture to be duly executed, all as of the day and year
first written above.
ALGONQUIN POWER & UTILITIES CORP. | |||
By:
|
/s/ Arun Banskota
|
||
Name:
|
Arun Banskota | ||
Title:
|
President & Chief Executive Officer | ||
By:
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/s/ Arthur Kacprzak
|
||
Name:
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Arthur Kacprzak | ||
Title:
|
Chief Financial Officer | ||
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as U.S. trustee
|
|||
By:
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/s/ Lawrence M. Kusch
|
||
Name:
|
Lawrence M. Kusch | ||
Title:
|
Vice President | ||
BNY TRUST COMPANY OF CANADA, as Canadian trustee
|
|||
By:
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/s/ Ismail Bawa
|
||
Name:
|
Ismail Bawa | ||
Title:
|
Authorized Signatory |
[Signature Page to Senior Indenture]
Exhibit 99.2
Execution Version
FIRST SUPPLEMENTAL INDENTURE
AMONG
ALGONQUIN POWER & UTILITIES CORP.,
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., AS U.S. TRUSTEE
AND
BNY TRUST COMPANY OF CANADA, AS CANADIAN TRUSTEE
DATED AS OF JUNE 23, 2021
1.18% REMARKETABLE SENIOR NOTES DUE 2026
TABLE OF CONTENTS
Page
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|||
ARTICLE I DEFINITIONS
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2
|
||
1.1
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Definition of Terms
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2
|
|
ARTICLE II GENERAL TERMS AND CONDITIONS OF THE NOTES
|
7
|
||
2.1
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Designation and Principal Amount
|
7
|
|
2.2
|
Stated Maturity
|
7
|
|
2.3
|
Form and Payment; Minimum Transfer Restriction
|
7
|
|
2.4
|
Exchange and Registration of Transfer of Notes; Restrictions on Transfers; Depository
|
8
|
|
2.5
|
Interest
|
9
|
|
2.6
|
Events of Default
|
9
|
|
2.7
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No Defeasance or Covenant Defeasance Prior to Purchase Contract Settlement Date; No Discharge Prior to Purchase Contract Settlement Date
|
10
|
|
2.8
|
No Sinking Fund or Repayment at Option of the Holder
|
10
|
|
2.9
|
Increase and Decrease in Pledged Notes
|
10
|
|
2.10
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Additional Amounts
|
11
|
|
2.11
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[Reserved]
|
12
|
|
2.12
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[Reserved]
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12
|
|
2.13
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[Reserved]
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12
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2.14
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[Reserved]
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12
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|
2.15
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Ranking
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12
|
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ARTICLE III REDEMPTION OF THE NOTES
|
13
|
||
3.1
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Optional Redemption by Corporation in Event of Failed Final Remarketing
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13
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|
3.2
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[Reserved]
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13
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3.3
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Notice of Redemption
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13
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3.4
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Amendments to Article III of Base Indenture
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13
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ARTICLE IV [RESERVED]
|
13
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||
ARTICLE V FORM OF NOTE
|
13
|
||
5.1
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Form of Note
|
13
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ARTICLE VI ORIGINAL ISSUE OF NOTES
|
13
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||
6.1
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Original Issue of Notes
|
13
|
i
ARTICLE VII [RESERVED]
|
14
|
||
ARTICLE VIII MODIFICATION OF INDENTURE
|
14
|
||
8.1
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Modification of Indenture without Consent of Holders of Notes
|
14
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|
8.2
|
Modification of Indenture with Consent of Holders of Notes
|
14
|
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ARTICLE IX REMARKETING
|
15
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||
9.1
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Remarketing Procedures
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15
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|
9.2
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Remarketing
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16
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|
9.3
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Reset Rate
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17
|
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9.4
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Modification of Terms in Connection with a Successful Remarketing
|
18
|
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9.5
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Put Right
|
18
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|
ARTICLE X TAX TREATMENT
|
19
|
||
10.1
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U.S. Tax Treatment
|
19
|
|
10.2
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Canadian Tax Reporting
|
19
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|
ARTICLE XI THE TRUSTEES
|
19
|
||
11.1
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Security Registrar and Paying Agent
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19
|
|
11.2
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Concerning the Trustees
|
19
|
|
11.3
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Patriot Act Requirements of Trustees
|
20
|
|
11.4
|
Notice upon U.S. Trustee
|
20
|
|
ARTICLE XII MISCELLANEOUS
|
20
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||
12.1
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Ratification of Indenture; First Supplemental Indenture Controls
|
20
|
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12.2
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Recitals
|
20
|
|
12.3
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Governing Law
|
21
|
|
12.4
|
Separability
|
21
|
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12.5
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Counterparts
|
21
|
|
12.6
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Jury Trial Waiver
|
21
|
|
12.7
|
Consent to Service
|
21
|
Exhibit A: Form of Note and the Trustee’s Certificate of Authentication
Exhibit B: Form of Put Notice
ii
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of June 23, 2021 (this “First Supplemental Indenture”), is among ALGONQUIN
POWER & UTILITIES CORP., a corporation duly organized and existing under the laws of Canada, having its principal office at 354 Davis Road, Oakville, Ontario, L6J 2X1 (the “Corporation”), THE BANK OF NEW
YORK MELLON TRUST COMPANY, N.A., as U.S. trustee under the Base Indenture (as defined below), having a corporate trust office at 4655 Salisbury Road, Suite 300, Jacksonville, FL 32256 (herein called the “U.S. Trustee”)
and BNY TRUST COMPANY OF CANADA, (herein called the “Canadian Trustee” and, together with the U.S. Trustee, the “Trustees”).
WHEREAS, the Corporation has heretofore entered into an Indenture, dated as of June 23, 2021, among the Corporation and the Trustees (the “Base Indenture”);
WHEREAS, the Base Indenture, as supplemented and amended by this First Supplemental Indenture, and as may be hereafter supplemented or amended from time to
time in accordance herewith and therewith, is herein called the “Indenture”;
WHEREAS, under the Base Indenture, a new series of Securities may at any time be established in accordance with the provisions of the Base Indenture and the
terms of such series may be set forth in a supplemental indenture executed by the Corporation and the Trustees;
WHEREAS, the Corporation proposes to create under the Base Indenture a new series of Securities;
WHEREAS, the Corporation has requested that the Trustees execute and deliver this First Supplemental Indenture and all requirements necessary to make this
First Supplemental Indenture a valid instrument in accordance with its terms, and to make the Notes (as defined herein), when executed by the Corporation and authenticated and delivered by the Trustees, the valid obligations of the Corporation, have
been performed, and the execution and delivery of this First Supplemental Indenture has been duly authorized in all respects;
NOW, THEREFORE, in consideration of the purchase and acceptance of the Notes by the Holders (as defined herein), and for the purpose of setting forth, as provided in the Base
Indenture, the form and substance of the Notes and the terms, provisions and conditions thereof, the Corporation covenants and agrees with the Trustees as follows:
1
ARTICLE I
DEFINITIONS
1.1 Definition of Terms. For all purposes of this First Supplemental Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the capitalized terms not otherwise defined herein shall have the meanings set forth in the Base Indenture or, if not defined in the Base Indenture, in
the Purchase Contract and Pledge Agreement (as defined below);
(b) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(c) all other terms used herein which are defined in the Trust Indenture Act of 1939, as amended, whether directly or by reference therein, have the
meanings assigned to them therein;
(d) a reference to a Section or Article is to a Section or Article of this First Supplemental Indenture unless otherwise stated;
(e) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this First Supplemental Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(f) headings are for convenience of reference only and do not affect interpretation;
“Additional Amounts” shall have the meaning set forth in Section 2.10.
“Applicable Ownership Interest in Notes” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Applicable Remarketing Period” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Blackout Period” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Canadian Securities Regulators” means, collectively, the securities commissions or other securities regulatory authorities in each of the provinces and
territories of Canada.
“Canadian Taxes” shall have the meaning set forth in Section 2.10.
“Cash Settlement” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Code” shall have the meaning set forth in Section 2.10.
2
“Collateral Agent” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Collateral Substitution” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Coupon Rate” has the meaning set forth in Section 2.5(b).
“Corporate Trust Office of the Trustee” means the office of the U.S. Trustee at which at any particular time its corporate trust business with respect to the
series of Securities herein described shall be principally administered, which office at the date of original execution of this First Supplemental Indenture is located at 4655 Salisbury Road, Suite 300, Jacksonville, Florida 32256, Attention:
Corporate Trust Administration.
“Corporate Unit” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Custodial Agent” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Depository” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Depository Participant” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Early Settlement” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Equity Unit” shall have the meaning set forth in the Underwriting Agreement.
“FATCA” shall have the meaning set forth in Section 2.10.
“Failed Final Remarketing” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Final Remarketing” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Final Remarketing Date” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Final Remarketing Period” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Fundamental Change Early Settlement” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Global Note” shall have the meaning set forth in Section 2.4.
3
“Holder” means (i) with respect to the Corporate Units or the Treasury Units, such term as defined in the Purchase Contract and Pledge Agreement and (ii) with
respect to the Notes, the Person in whose name at the time a particular Note is registered on the books of the Trustees kept for that purpose.
“Increased Principal Amount” shall have the meaning set forth in Section 2.9.
“Interest Payment” means, with respect to any Interest Payment Date, the interest payment on the Notes due on such Interest Payment Date.
“Interest Payment Date” shall have the meaning set forth in Section 2.5(a).
“Interest Period” means, with respect to any Interest Payment Date, the period from and including the immediately preceding Interest Payment Date (or if none,
June 23, 2021) to, but excluding, such Interest Payment Date.
“Notes” shall have the meaning specified in Section 2.1.
“Optional Remarketing” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Optional Remarketing Date” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Optional Remarketing Period” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Original Issue Date” means June 23, 2021 or, in the case of Notes issued in connection with any exercise by the Underwriters of their over-allotment option,
the date on which such Notes are issued.
“Pledged Applicable Ownership Interests in Notes” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Pledged Notes” shall have the meaning specified in Section 2.9.
“Purchase Contract” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Purchase Contract Agent” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Purchase Contract and Pledge Agreement” means the Purchase Contract and Pledge Agreement, dated as of June 23, 2021, between the Corporation and The Bank of
New York Mellon Trust Company, N.A., as Purchase Contract Agent, Collateral Agent, Custodial Agent and Securities Intermediary, as amended from time to time.
4
“Purchase Contract Settlement Date” means June 15, 2024 (or if such day is not a Business Day, the following Business Day).
“Put Price” shall have the meaning specified in Section 9.5.
“Put Right” shall have the meaning set forth in Section 9.5.
“Put Right Default” shall have the meaning set forth in Section 2.6.
“Redemption” means the redemption of the Notes pursuant to the terms of Article III.
“Redemption Date” shall have the meaning set forth in Section 3.1.
“Redemption Price” means, for any Note, the principal amount of such Note, plus accrued and unpaid interest (including compounded interest thereon), if any, to
but excluding the Redemption Date.
“Reduced Principal Amount” shall have the meaning set forth in Section 2.9.
“Regular Record Date” means, with respect to any Interest Payment Date for the Notes, the first day of the calendar month in which the applicable Interest
Payment Date falls (whether or not a Business Day).
“Released Note” shall have the meaning set forth in Section 2.9.
“Relevant Taxing Jurisdiction” shall have the meaning set forth in Section 2.10.
“Remarketed Notes” means, with respect to all Remarketings during any Applicable Remarketing Period, the aggregate principal amount of Notes underlying the
Pledged Applicable Ownership Interests in Notes and the Separate Notes, if any, subject to Remarketing as identified to the Remarketing Agent(s) by the Purchase Contract Agent and the Custodial Agent, respectively, in each case, pursuant to the terms
of the Purchase Contract and Pledge Agreement.
“Remarketing Agent(s)” means the Remarketing Agent(s) appointed by the Corporation, pursuant to the Remarketing Agreement.
“Remarketing Agreement” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Remarketing Date” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Remarketing Price” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Remarketing Settlement Date” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Reset Rate” shall have the meaning specified in Section 9.3(a).
5
“Separate Notes” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Separate Notes Purchase Price” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Stated Amount” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Stated Maturity” shall have the meaning specified in Section 2.2.
“Subjected Note” shall have the meaning set forth in Section 2.9.
“Successful Final Remarketing” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Successful Optional Remarketing” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Successful Remarketing” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Taxes” shall have the meaning set forth in Section 2.10.
“Termination Event” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Treasury Portfolio Purchase Price” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Treasury Unit” shall have the meaning set forth in the Purchase Contract and Pledge Agreement.
“Underwriters” means J.P. Morgan Securities LLC, Wells Fargo Securities, LLC, BMO Capital Markets Corp., Morgan Stanley & Co. LLC, BofA Securities, Inc.,
CIBC World Markets Corp., RBC Capital Markets, LLC, National Bank of Canada Financial Inc., Scotia Capital (USA) Inc. and TD Securities (USA) LLC.
“Underwriting Agreement” means the Underwriting Agreement, dated as of June 17, 2021, by and among the Corporation and the Underwriters, for the sale of up to
23,000,000 of the Corporation’s Corporate Units.
The terms “Corporation,” “U.S. Trustee”, “Canadian Trustee”, “Trustees”, “Base Indenture,” and “Indenture” shall have the respective meanings set forth in the recitals to this First Supplemental
Indenture.
6
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES
2.1 Designation and Principal Amount. There is hereby authorized a new series of Securities, to be
designated the “1.18% Remarketable Senior Notes due 2026” (the “Notes”), in the initial aggregate principal amount of $1,000,000,000 (as increased by an
aggregate principal amount equal to the aggregate Stated Amount of Corporate Units with respect to which the Underwriters exercise their over-allotment option), which amount shall be set forth in any written orders of the Corporation for the
authentication and delivery of Notes pursuant to Section 2.1 of the Base Indenture and Section 6.1 hereof. Any such additional Notes issued on account of any
exercise by the Underwriters of their over-allotment option will have the same Stated Maturity and other terms as those initially issued and shall be consolidated with and part of the same series of Securities as the Notes initially issued under
this First Supplemental Indenture. For the avoidance of doubt, no additional Notes may be issued following the Original Issue Date, except as expressly set forth in the first sentence of this Section 2.1.
2.2 Stated Maturity. The “Stated Maturity” of the Notes is June 15, 2026, which may not be shortened or extended. For the avoidance of doubt, with respect to the Notes, the term “Stated Maturity” refers only to the date on which principal is due and payable as set
forth in this Section 2.2.
2.3 Form and Payment; Minimum Transfer Restriction.
(a) Except as provided in Section 2.4, the Notes shall be issued in fully
registered definitive form without coupons. All Notes shall have identical terms. Notes corresponding to Applicable Ownership Interests in Notes that are components of Corporate Units shall be registered in the name of the Purchase Contract Agent
or its nominee. Principal of the Notes will be payable (subject to the last sentence of this Section 2.3(a)), the transfer of such Notes will be registrable,
and such Notes will be exchangeable for Notes of a like aggregate principal amount bearing identical terms and provisions, at the Corporate Trust Office of the Trustee; provided, however, that, except as otherwise provided in the form of Note attached hereto as Exhibit
A, payment of interest will be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register or, if such Person so requests and designates an
account in writing to the U.S. Trustee at least five Business Days prior to the relevant Interest Payment Date, by wire transfer to such account; and provided, further, that the Corporation, in its discretion may remove the Paying Agent and may appoint one or more additional Paying Agents (including the Corporation or any of its affiliates). Payments with respect to any Global Note or
any Note corresponding to Applicable Ownership Interests in Notes that are components of Corporate Units will be made by wire transfer to the Depository or in accordance with any other applicable procedures of the Depository.
(b) The Notes shall be issuable in minimum denominations of $1,000 and integral multiples of $1,000 in excess thereof; provided, however, that upon the release by the Collateral Agent of Notes underlying the Pledged Applicable Ownership Interests in Notes in accordance with Section 3.15 of the Purchase Contract
and Pledge Agreement, if any Holder or beneficial owner shall be entitled to receive Notes in an aggregate principal amount that is not an integral multiple of $1,000, upon request of the Purchase Contract Agent, on behalf of such Holder or
beneficial owner, the Corporation shall issue Notes in minimum denominations of $50, or integral multiples thereof, in exchange for Notes in minimum denominations of $1,000 or integral multiples thereof.
7
2.4 Exchange and Registration of Transfer of Notes; Restrictions on Transfers; Depository. Notes that
corresponded to Applicable Ownership Interests in Notes but are no longer a component of the Corporate Units and are released from the Collateral Account will be initially issued in permanent global form (a “Global Note”), and if issued as one or more Global Notes, the Depository shall be The Depository Trust Company or such other depository that is a clearing agency registered under Section 17A of
the U.S. Exchange Act as any officer of the Corporation may from time to time designate. On the date on which the Notes registered in the name of the Purchase Contract Agent pursuant to Section 2.3 are issued, the Corporation shall also issue one or more Global Notes representing Notes, registered in the name of the Depository or its nominee, each having a zero principal balance. Upon the creation of Treasury Units,
or the re-creation of Corporate Units or in any other case where the Collateral Agent releases Notes underlying the Pledged Applicable Ownership Interests in Notes, an appropriate annotation by the Collateral Agent shall be made on the Schedule of
Increases or Decreases in Note on the Global Notes held by the Depository and on the Pledged Note held by the Collateral Agent. Except upon recreation of Corporate Units, Notes represented by the Global Notes will be exchangeable for Notes in
certificated form only (x) if the Depository (A) has notified the Corporation that it is unwilling or unable to continue as depository for the Global Notes or (B) has ceased to be a “clearing agency” registered under the U.S. Exchange Act when the
Depository is required to be so registered and the Corporation receives notice of such cessation and, in either case, a successor depository that is a clearing agency registered under Section 17A of the U.S. Exchange Act is not appointed by the
Corporation within 90 days after such notice (or the Corporation becoming aware of such cessation), or (y) upon the occurrence and during the continuance of any Event of Default or any other event that, after notice or lapse of time, would
constitute an Event of Default with respect to the Notes and any beneficial owner of a Global Note requests that its beneficial interest be exchanged for a Note in certificated form; provided, subject to Section 2.3, that the Notes in certificated form so issued in exchange for the Global Notes shall be in denominations of $1,000
or any whole multiple of $1,000 above that amount and shall be of like aggregate principal amount and tenor as the portion of the Global Note to be exchanged. Except as provided above, owners of beneficial interests in a Global Note will not be
entitled to receive physical delivery of Notes in certificated form and will not be considered the Holders thereof for any purpose under the Indenture. Any Global Note that is exchangeable pursuant to clause (x) of the fourth sentence of this Section 2.4 shall be exchangeable for Notes in certificated form registered in such names as the Depository shall direct. The third sentence of the last paragraph of Section 2.5 of
the Base Indenture shall not apply with respect to the Notes, and any reference in the Base Indenture to such provisions shall, for the purposes of the Notes, be deemed to refer instead to the fourth sentence of this Section 2.4.
8
2.5 Interest.
(a) Interest on the Notes shall be payable quarterly in arrears on March 15, June 15, September 15 and December 15 of each year (each, subject to adjustment
in accordance with Section 2.5(b), an “Interest Payment Date”),
commencing September 15, 2021, and at Stated Maturity to the Person in whose name the relevant Notes are registered at the close of business on the Regular Record Date for such Interest Payment Date except that interest payable at the Stated
Maturity shall be paid to the Person to whom principal is payable. Interest shall be calculated on the basis of a 360-day year of twelve 30-day months, and with respect to any period less than a full calendar month, on the basis of the actual
number of days elapsed during a 30-day month. If any Interest Payment Date, Redemption Date, the Stated Maturity or the date (if any) on which the Corporation is required to purchase the Notes pursuant to Section
9.5 is not a Business Day, then the applicable payment shall be made on the next succeeding day that is a Business Day and no interest shall accrue or be paid in respect of such delay. Section 15.5 of the
Base Indenture is hereby superseded in its entirety, with respect to the Notes, by the immediately preceding sentence.
(b) The Notes will bear interest initially at the rate of 1.18% per year (the “Coupon Rate”) from and including June 23, 2021 to, but excluding, the date the principal amount thereof is paid or made available for payment, or in the event of a Successful Remarketing, the Remarketing Settlement Date. In the event
of a Successful Remarketing of the Notes, the interest rate applicable to the Notes may be reset by the Remarketing Agent(s) to the applicable Reset Rate with effect from the Remarketing Settlement Date, as set forth in Section 9.3. If the interest rate is so reset, the Notes will bear interest at the applicable Reset Rate from, and including, the Remarketing Settlement Date to, but excluding,
the date the principal amount thereof is paid or made available for payment. In the event of a Successful Remarketing, following the applicable Remarketing Settlement Date, interest on Notes will be payable semi-annually on June 15 and December 15
and at Stated Maturity to the Person in whose name the relevant Notes are registered at the close of business on the Regular Record Date for such Interest Payment Date except that interest payable at the Stated Maturity shall be paid to the Person
to whom principal is payable. If there is no Successful Remarketing, the interest rate applicable to the Notes will not be reset, the Interest Payment Dates shall remain the same and the Notes shall continue to bear interest at the Coupon Rate.
The Notes shall bear interest, to the extent permitted by law, on any overdue principal and interest at the Coupon Rate, unless a Successful Remarketing shall have occurred, in which case on and after the Remarketing Settlement Date the Notes shall
bear interest, to the extent permitted by law, on any overdue principal and interest at the Reset Rate. The second paragraph of Section 2.3 of the Base Indenture (except for the last sentence thereof, which sentence shall be deemed to apply to the
term “Regular Record Date” as defined herein) shall not apply with respect to the Notes, and any reference in the Base Indenture to such provision shall, for purposes of the Notes, be deemed to refer instead to this Section 2.5.
2.6 Events of Default. An Event of Default as defined in the Base Indenture shall be an Event of Default
with respect to the Notes. In addition, an Event of Default with respect to the Notes will occur if the Corporation fails to pay the Put Price of any Note on the Purchase Contract Settlement Date after a Holder’s Put Right has been exercised
pursuant to Section 9.5 (a “Put Right Default”).
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2.7 No Defeasance or Covenant Defeasance Prior to Purchase Contract Settlement Date; No Discharge Prior to Purchase Contract Settlement Date.
(a) Prior to the Purchase Contract Settlement Date, the provisions of Section 12.5 of the Base Indenture shall not apply to the Notes.
(b) Prior to the Purchase Contract Settlement Date, the provisions of Section 12.1 of the Base Indenture shall not apply to the Notes.
2.8 No Sinking Fund or Repayment at Option of the Holder. The Notes shall not be subject to any sinking
fund or analogous provision and, except in the case of the Put Right, shall not be repayable at the option of a Holder thereof prior to the Stated Maturity.
2.9 Increase and Decrease in Pledged Notes. In the event that any Notes underlying Pledged Applicable
Ownership Interests in Notes with respect to any Corporate Units evidenced by a Global Certificate are to be released from the Pledge following a Termination Event, Collateral Substitution, Cash Settlement, Successful Remarketing, Early Settlement
or Fundamental Change Early Settlement pursuant to the Purchase Contract and Pledge Agreement (a “Released Note”), such release and delivery shall be
evidenced by an endorsement by the Collateral Agent on the Note held by the Collateral Agent (the “Pledged Note”) reflecting a reduction in the principal
amount of such Pledged Note equal in amount (the “Reduced Principal Amount”) to the principal amount of the Released Note. The Collateral Agent shall
confirm any such Reduced Principal Amount by telecopying or otherwise delivering a photocopy of such endorsement made on the Pledged Note evidencing such Reduced Principal Amount to the U.S. Trustee at the telecopier number, e-mail address or other
address of the U.S. Trustee provided for notices to the U.S. Trustee in Section 11.4 (or at such other telecopier number, e-mail address or other address as the U.S.
Trustee shall provide to the Collateral Agent). Upon receipt of such confirmation, the U.S. Trustee shall increase the principal amount of a Global Note held by the U.S. Trustee in an amount equal to the Reduced Principal Amount by an endorsement
made by the U.S. Trustee on such Global Note to reflect such increase. In the event that a Note is transferred to the Collateral Agent pursuant to Section 3.14 of the Purchase Contract and Pledge Agreement (a “Subjected Note”) in connection with the re-creation of Corporate Units, such transfer shall be evidenced by an endorsement by the Collateral Agent on the Pledged Note held by the
Collateral Agent reflecting an increase in the principal amount of such Pledged Note equal in amount (the “Increased Principal Amount”) to the principal
amount of such Subjected Note. The Collateral Agent shall confirm any such Increased Principal Amount by telecopying or otherwise delivering a photocopy of such endorsement made on the Pledged Note evidencing such Increased Principal Amount to the
U.S. Trustee at the telecopier number, e-mail address or other address of the U.S. Trustee provided for notices to the U.S. Trustee in Section 11.4 (or at such other
telecopier number, e-mail address or other address as the U.S. Trustee shall provide to the Collateral Agent). Upon receipt of such confirmation, the U.S. Trustee shall decrease the principal amount of the Global Note held by the U.S. Trustee in
an amount equal to the Increased Principal Amount by an endorsement made by the U.S. Trustee on such Global Note to reflect such decrease.
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2.10 Additional Amounts.
(a) All payments made by or on account of any obligation of the Corporation under or with respect to the Notes shall be made free and clear of and without
withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto), in each case in the nature of a tax,
imposed or levied by a governmental authority (“Taxes”), unless the Corporation is required to withhold or deduct Taxes by law or by the interpretation or
administration thereof by the relevant government authority or agency. If the Corporation is so required to withhold or deduct any Taxes imposed by the Government of Canada or any province or territory thereof or by any authority or agency therein
or thereof having power to tax (a Relevant Taxing Jurisdiction,” and such Taxes, “Canadian Taxes”) from any payment made under or with respect to the Notes, the Corporation shall pay as additional interest such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each Holder of the Notes (including Additional Amounts) after such withholding or deduction for Canadian Taxes shall not be less than the amount the Holder would have
received if such Canadian Taxes had not been withheld or deducted; provided, however, that no Additional Amounts shall be payable with respect to a payment made to a Holder in respect of a Holder or beneficial owner (i) with which the Corporation
does not deal at arm’s length (for purposes of the Tax Act) at the time of the making of such payment, (ii) in respect of a debt or other obligation to pay an amount to a person with whom the Corporation is not dealing at arm’s length (for purposes
of the Tax Act); (iii) which is subject to such Canadian Taxes by reason of the failure to comply with any certification, identification, information, documentation or other reporting requirement by a Holder or beneficial owner of the Notes 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, (iv) where all or any portion of the
amount paid to such Holder relates to an amount that is or was deemed to be a dividend paid to such Holder pursuant to subsection 214(16) of the Tax Act, (v) which is subject to such Canadian Taxes by reason of its carrying on business in or being
connected with Canada or any province or territory thereof (including, without limitation, by being or having been a national, domiciliary or resident, or treated as a resident, of, or physically present in or having or having had a permanent
establishment in, Canada or any province or territory thereof) otherwise than by the mere holding of Notes or the receipt of payments thereunder, (vi) in respect of any applicable Taxes that are payable other than by withholding from payments under
or with respect to the Notes, (vii) in respect of any estate, inheritance, gift, sale, transfer, personal property, excise or similar applicable Taxes, (viii) if the applicable Taxes would not have been imposed but for the presentation of such Note
(in cases in which presentation is required) more than 30 days after the later of the date on which the relevant payment became due and payable pursuant to the terms thereof or was made or duly provided for, (ix) in respect of any applicable Taxes
to the extent such applicable Taxes result from the presentation of any Note for payment (where presentation is required for payment) and the payment can be made without such withholding or deduction by the presentation of the Note for payment by
at least one other paying agent, (x) for any Taxes imposed pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) (or any amended or successor version of such sections) (“FATCA”), any regulations or other official guidance thereunder, any agreement entered
into pursuant to section 1471(b)(1) of the Code, any intergovernmental agreement entered into between a non-U.S. jurisdiction and the United States in connection with FATCA or any law, regulation or other official guidance enacted in any
jurisdiction implementing FATCA and (xi) in respect of any combination of applicable Taxes referred to in the preceding clauses (i) through (x). The Corporation shall make such withholding or deduction and remit the full amount deducted or withheld
to the relevant authority as and when required under applicable law.
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(b) Additional Amounts shall not be paid for any applicable Taxes if the Holder is a fiduciary, partnership, limited liability company or person other than the
sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for
tax purposes, of a beneficiary or settlor with respect to the fiduciary, a partner or member of that partnership or limited liability company or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary,
settlor, partner, member or beneficial owner been the Holder thereof.
(c) Whenever in the Indenture there is mentioned, in any context, (i) the payment of principal or premium, (ii) purchase prices in connection with a
purchase of Notes, (iii) interest, or (iv) any other amount payable on or with respect to the Notes, such reference shall be deemed to include payment of any Additional Amounts to the extent that, in such context, such Additional Amounts are, were
or would be payable in respect thereof.
(d) The Corporation will pay any present or future stamp, court, documentary or similar Taxes that arise in any taxing jurisdiction from the execution,
delivery, enforcement or registration of the Notes, the Indenture, or any other document or instrument required in relation thereof, and the Corporation agrees to indemnify
the Holders for any such Taxes paid by such Holders. The obligations described under this heading will survive any termination, defeasance or discharge of the Indenture.
2.11 [Reserved].
2.12 [Reserved].
2.13 [Reserved].
2.14 [Reserved].
2.15 Ranking. For the avoidance of doubt, the Notes shall rank on a parity in right of payment with all
of the Corporation’s other unsecured and unsubordinated indebtedness from time to time outstanding.
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ARTICLE III
REDEMPTION OF THE NOTES
3.1 Optional Redemption by Corporation in Event of Failed Final Remarketing. The Corporation may redeem
the Notes at its option only if there has been a Failed Final Remarketing. In the event of a Failed Final Remarketing, any Notes that remain outstanding after the Purchase Contract Settlement Date will be redeemable on or after June 15, 2024 at
the Corporation’s option, in whole or in part, at any time and from time to time, at a price per Note equal to the Redemption Price, payable on the date of redemption (such date, the “Redemption
Date”). If the Corporation redeems fewer than all of the outstanding Notes, and the Notes are Global Notes, they will be selected for redemption in accordance with Applicable Procedures. If the Notes are not
Global Notes, the Trustees will select the Notes to be redeemed pursuant to Section 3.2 of the Base Indenture. The Corporation may at any time irrevocably waive the right to redeem the Notes for any specified period (including the remaining term
of the Notes). The Corporation shall not redeem the Notes if the Notes have been accelerated and such acceleration has not been rescinded or unless all accrued and unpaid interest has been paid in full on all outstanding Notes for all Interest
Periods terminating on or prior to the Redemption Date. The Corporation may block the transfer or exchange of (i) all Notes during a period of 15 days prior to the date on which notice of selection of the Notes for redemption is given, or (ii) any
Note being redeemed, except with respect to the unredeemed portion of any Note being redeemed solely in part. Following a Successful Remarketing of the Notes, the Notes will cease to be redeemable at the Corporation’s option. The third to last
paragraph of Section 2.5 of the Base Indenture shall not apply with respect to the Notes.
3.2 [Reserved].
3.3 Notice of Redemption. Subject to Article III of the Base Indenture, notice of any Redemption
pursuant to this Article III will be sent not less than 20 days and not more than 60 days prior to the Redemption Date to each Holder of Notes to be redeemed at such Holder’s registered address.
3.4 Amendments to Article III of Base Indenture. Solely for purposes of the Notes, (i) Sections 3.2 and
3.3 of the Base Indenture are hereby deemed amended by removing any reference therein to accrued and unpaid interest to the date fixed for redemption being payable on any Notes upon Redemption (in addition to the applicable redemption price) and
(ii) for the avoidance of doubt, the “applicable redemption price” referred to therein shall be the Redemption Price.
ARTICLE IV
[RESERVED]
ARTICLE V
FORM OF NOTE
5.1 Form of Note. The Notes and the Trustee’s Certificate of Authentication to be endorsed thereon are
to be substantially in the form attached hereto as Exhibit A.
ARTICLE VI
ORIGINAL ISSUE OF NOTES
6.1 Original Issue of Notes. Notes in the initial aggregate principal amount of up to $1,000,000,000
(as increased by an aggregate principal amount equal to the aggregate Stated Amount of Corporate Units with respect to which the Underwriters exercise their over-allotment option) may be executed by the Corporation and delivered to the Trustees for
authentication by it, and the Trustees shall thereupon authenticate and deliver said Notes to the Corporation or upon the written order of the Corporation, signed by any officer of the Corporation, without any further corporate action by the
Corporation.
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ARTICLE VII
[RESERVED]
ARTICLE VIII
MODIFICATION OF INDENTURE
8.1 Modification of Indenture without Consent of Holders of Notes. In addition to subsections (a) through (k) of Section 10.1 of the
Base Indenture, without the consent of any Holder of a Note, the Corporation and the Trustees may, (i) following the Purchase Contract Settlement Date, supplement any of the provisions of the Notes to such extent as shall be necessary to permit or
facilitate the defeasance and discharge of the Notes pursuant to the Indenture; provided that any such action will not adversely affect the interests of any Holder in any material respect; (ii) modify the
form and terms of the Notes in connection with a Successful Remarketing solely to set forth the modifications to the terms of the Notes pursuant to Section 9.4 and (iii) amend the Notes, the Base Indenture (insofar as it relates to the Notes)
and this First Supplemental Indenture to conform the provisions thereof or hereof to the descriptions thereof or hereof contained in the preliminary prospectus supplement dated June 16, 2021 for the Notes, as supplemented by the related pricing term
sheet used in connection with the offering of the Equity Units, under the sections entitled “Description of the Equity Units,” “Description of the Purchase Contracts,” “Certain Provisions of the Purchase Contract and Pledge Agreement” and
“Description of the Remarketable Senior Notes.” Notwithstanding anything to the contrary in the Base Indenture, Section 10.1(k) of the Base Indenture will only apply with respect to the Notes following the Purchase Contract Settlement Date.
8.2 Modification of Indenture with Consent of Holders of Notes. With the consent of the Holders of not
less than a majority in the principal amount of Notes then outstanding (except as otherwise provided in the first proviso of Section 10.2 of the Base Indenture), the Corporation and the Trustees may from time to time and at any time enter into an
indenture or indentures supplemental hereto or to the Base Indenture for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Base Indenture or this First Supplemental Indenture or of
modifying in any manner the rights of the Holders of the Notes; provided, however, that, in addition to the restrictions set forth in the first proviso
contained in Section 10.2 of the Base Indenture (which shall apply to this Section 8.2, mutatis mutandis), no supplemental indenture may without the consent of the Holders of each outstanding Note affected thereby: (i) modify the Put Right of Holders of the Notes upon a Failed Remarketing in a manner materially adverse to the
Holders or (ii) modify the Remarketing provisions of the Notes in a manner materially adverse to the Holders, it being understood that any modification of the terms of the Notes permitted pursuant to Section
9.4 in connection with a Remarketing that is made in accordance with the terms of the Indenture may be made without the consent of any Holders of the Notes. The first paragraph of Section 10.2 of the Base
Indenture shall not apply with respect to the Notes (other than the first proviso therein, which shall apply as set forth in the immediately preceding sentence), and any reference in the Base Indenture to the provisions therein shall, for purposes
of the Notes, be deemed to refer instead to the applicable provision in this Section 8.2.
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ARTICLE IX
REMARKETING
9.1 Remarketing Procedures.
(a) In the case of an Optional Remarketing, unless a Termination Event has occurred prior to the Optional Remarketing Period, or in the case of a Final
Remarketing, unless a Successful Optional Remarketing or Termination Event has occurred prior to the Final Remarketing Period, the Corporation shall engage the Remarketing Agent(s) pursuant to the Remarketing Agreement for the Remarketing of the
Notes as set forth under Section 9.2. The Corporation shall, no later than (a) in the case of an Optional Remarketing, five Business Days prior to the first day of
the Optional Remarketing Period or (b) in the case of a Final Remarketing, seven days prior to the first day of the Final Remarketing Period, request that the Depository or its nominee notify the beneficial owners or Depository Participants holding
Separate Notes, Corporate Units and Treasury Units, and shall provide a copy of such request to the Collateral Agent and the Purchase Contract Agent, in the case of an Optional Remarketing, of the Corporation’s intent to attempt an Optional
Remarketing in the Applicable Remarketing Period, and in all cases, of the proposed Remarketing Dates and the procedures to be followed in each Remarketing, including the procedures to be followed by Holders of Separate Notes to participate in a
Remarketing, the applicable procedures for Holders of Corporate Units to create Treasury Units or Holders of Treasury Units to recreate Corporate Units, as the case may be, the applicable procedures for Holders of Corporate Units to effect an Early
Settlement and, in the case of a Final Remarketing, applicable procedures to effect a Cash Settlement and the applicable procedures that must be followed by a Holder of Separate Notes if such Holder wishes to exercise its Put Right or by a Holder
of Corporate Units if such Holder elects not to exercise its Put Right.
(b) At any time after notice is given by the Corporation in accordance with Section 9.1(a) and prior to 4:00 p.m., New York City time, on the second Business Day immediately preceding the first day of the Applicable Remarketing Period, other than during a Blackout Period, each Holder of Separate Notes may elect
to have Separate Notes held by such Holder remarketed in the applicable Remarketing for which notice was given. A Holder making such an election must notify the Custodial Agent and deliver such Separate Notes to the Custodial Agent in accordance
with the provisions set forth in the Purchase Contract and Pledge Agreement. Any such notice and delivery may not be conditioned upon the level at which the Reset Rate is established in the Remarketing. Any such notice and delivery may be
withdrawn, other than during a Blackout Period, by notifying the Custodial Agent on or prior to 4:00 p.m., New York City time, on the second Business Day immediately preceding the first day of the Applicable Remarketing Period in accordance with
the Purchase Contract and Pledge Agreement. Any such notice and delivery not withdrawn in accordance with the immediately preceding sentence will be irrevocable with respect to each Remarketing to occur during the Applicable Remarketing Period.
Pursuant to Section 5.02 of the Purchase Contract and Pledge Agreement, by (or, in the case of a Final Remarketing, promptly after) 4:00 p.m., New York City time on the Business Day immediately preceding the first day of the Applicable Remarketing
Period, the Custodial Agent, based on the notices and deliveries received by it prior to such time, shall notify the Remarketing Agent(s) of the aggregate principal amount of Separate Notes surrendered for Remarketing. Pursuant and subject to
Section 5.02 of the Purchase Contract and Pledge Agreement, Notes that underlie Applicable Ownership Interests in Notes included in Corporate Units will be deemed surrendered for Remarketing (unless in the case of a Final Remarketing, the Holder
thereof has duly notified the Purchase Contract Agent of its intent to effect a Cash Settlement and timely paid the Purchase Price) and will be remarketed in accordance with the terms of the Remarketing Agreement and the Purchase Contract and
Pledge Agreement.
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(c) The right of each Holder of Remarketed Notes to have such Notes remarketed on any Remarketing Date and sold on any Optional Remarketing Date or Final
Remarketing Date, as the case may be, shall be subject to the conditions that (i)(A) the Remarketing Agent(s) conducts any Optional Remarketing or (i)(B) in the case of a Final Remarketing, that no Successful Optional Remarketing has occurred
pursuant to the terms of the Remarketing Agreement and the Purchase Contract and Pledge Agreement, (ii) a Termination Event has not occurred prior to the Optional Remarketing Date or Final Remarketing Date, as the case may be, (iii) the Remarketing
Agent(s) is able to find a purchaser or purchasers for Remarketed Notes at the Remarketing Price based on the Reset Rate and (iv) each condition precedent to settlement of the Remarketed Notes set forth in the Remarketing Agreement is satisfied or
waived.
(d) Neither the Trustees, the Corporation, nor the Remarketing Agent(s) shall be obligated in any case to provide funds to make payment upon surrender of
Notes for remarketing.
9.2 Remarketing.
(a) Unless a Termination Event has occurred prior to such date, if the Corporation elects to conduct an Optional Remarketing during an Optional Remarketing
Period selected by the Corporation pursuant to the Purchase Contract and Pledge Agreement, the Corporation shall cause the Remarketing Agent(s) to use its commercially reasonable efforts to remarket the Remarketed Notes at the applicable
Remarketing Price as provided in the Remarketing Agreement.
(b) In the case there is no Successful Optional Remarketing during the Optional Remarketing Period, either because the Remarketing Agent(s) is unable to
remarket the Notes at the applicable Remarketing Price or because a condition precedent to the Remarketing has not been satisfied, and unless a Termination Event has occurred prior to such date, during the Final Remarketing Period, the Corporation
shall cause the Remarketing Agent(s) to use its commercially reasonable efforts to remarket the Remarketed Notes at the applicable Remarketing Price as provided in the Remarketing Agreement.
(c) The Remarketing on any Remarketing Date will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing
Price. The Corporation has the right to postpone any Optional Remarketing for any reason in its sole and absolute discretion.
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(d) The Corporation has the right to postpone the Final Remarketing in its sole and absolute discretion on any day prior to the last three Business Days
of the Final Remarketing Period.
9.3 Reset Rate.
(a) In connection with each Remarketing, in order to remarket the Notes, the Remarketing Agent(s), in consultation with the Corporation, may reset the interest
rate on the Notes either upward or downward, as provided in the Remarketing Agreement, the new interest rate being referred to herein as the “Reset Rate.”
(b) Anything herein to the contrary notwithstanding, no Reset Rate shall in any event exceed the maximum rate permitted by applicable law.
(c) In the event of a Successful Remarketing, the interest rate for the Notes shall be reset on the Remarketing Settlement Date to the applicable Reset
Rate as determined by the Remarketing Agent(s), in consultation with the Corporation, under the Remarketing Agreement, and the Corporation shall (1) notify the Trustees by an Officer’s Certificate delivered to the Trustees, (2) notify the
Depository (with a copy to the Trustees) of any reset of the interest rate on the Notes at least two days prior to the effective date of such reset and (3) request the Depository to notify its Depository Participants holding Notes, in each case, of
the Reset Rate no later than 9:00 a.m. New York City time on the Business Day following the date of the Successful Remarketing. Upon a Successful Remarketing, the Reset Rate shall apply to all outstanding Notes, whether or not the Holders of all
outstanding Notes participated in such Remarketing.
(d) If a reset of the interest rate on the Notes occurs pursuant to a Successful Optional Remarketing, the Reset Rate shall be the interest rate
determined by the Remarketing Agent(s), in consultation with the Corporation, pursuant to the Remarketing Agreement, as the interest rate the Notes should bear in order for the Remarketing proceeds to equal at least 100% of the sum of the Treasury
Portfolio Purchase Price and the Separate Notes Purchase Price (if any).
(e) If a reset of the interest rate on the Notes occurs pursuant to a Successful Final Remarketing, the Reset Rate shall be the interest rate determined
by the Remarketing Agent(s), in consultation with the Corporation, pursuant to the Remarketing Agreement, as the interest rate the Notes should bear in order for the Remarketing proceeds to equal at least 100% of the aggregate principal amount of
Notes to be remarketed.
(f) In the event of a Failed Remarketing, or if no Applicable Ownership Interests in Notes are included in Corporate Units (or the Holder of each such
Corporate Unit has duly notified the Purchase Contract Agent of its intent to effect a Cash Settlement and timely paid the Purchase Price) and none of the Holders of the Separate Notes elect to have their Notes remarketed in any Remarketing, the
applicable interest rate on the Notes will not be reset and will continue to be the Coupon Rate.
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(g) If there is a Failed Remarketing, the Corporation shall cause a notice of the unsuccessful Remarketing to be published not later than 9:00 a.m., New
York City time on the Business Day following the Applicable Remarketing Period. This notice shall be validly published by a timely press release to an appropriate Canadian and U.S. news agency and by furnishing such information with the Securities
and Exchange Commission in a Form 6-K and with Canadian Securities Regulators on the System for Electronic Document Analysis and Retrieval.
9.4 Modification of Terms in Connection with a Successful Remarketing.
Following any Successful Remarketing of the Notes:
(a) the interest rate on the Notes may be reset, pursuant to Section 9.3;
(b) interest will be payable on the Notes semi-annually, on June 15 and December 15 of each year and at Stated Maturity to the Person in whose name the
relevant Notes are registered at the close of business on the Regular Record Date for such Interest Payment Date except that interest payable at the Stated Maturity shall be paid to the Person to whom principal is payable; and
(c) the Notes will cease to be redeemable at the Corporation’s option, and the provisions under Article III hereof and Article
III of the Base Indenture will no longer apply to the Notes.
All such modifications shall take effect on the Optional Remarketing Settlement Date or the Purchase Contract Settlement Date, as the case may be, and shall apply to all outstanding Notes, whether or
not included in such Successful Remarketing.
9.5 Put Right.
(a) If there has not been a Successful Remarketing on or prior to the last day of the Final Remarketing Period, Holders of Notes will, subject to this Section 9.5, have the right (the “Put Right”) to require the Corporation to purchase
such Notes for cash on the Purchase Contract Settlement Date, at a price per Note to be purchased equal to the principal amount of the applicable Note (the “Put Price”).
(b) The Put Right of a Holder of a Separate Note shall only be exercisable upon delivery of a notice substantially in the form attached as Exhibit B hereto (or, in the case of Global Notes, in accordance with applicable procedures of the Depository), together with such Holder’s Separate Notes, to the U.S. Trustee by
such Holder at or prior to 5:00 p.m., New York City time, on the second Business Day immediately preceding the Purchase Contract Settlement Date. Such Put Right for a Holder of a Separate Note may be exercised with respect to all or a portion of
such Holder’s Separate Notes (so long as such portion is an integral multiple of $1,000 principal amount). Prior to 11:00 a.m., New York City time, on the Purchase Contract Settlement Date, the Corporation shall deposit with the U.S. Trustee
immediately available funds in an amount sufficient to pay, on the Purchase Contract Settlement Date, the aggregate Put Price of all Separate Notes with respect to which a Holder has exercised a Put Right. In exchange for any Separate Notes
surrendered pursuant to the Put Right, the U.S. Trustee shall then distribute such amount to the Holders of such Separate Notes.
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(c) If there has not been a Successful Remarketing on or prior to the last day of the Final Remarketing Period, the Put Right of Holders with respect to
Notes relating to Applicable Ownership Interests in Notes included in Corporate Units will be deemed to be automatically exercised in accordance with Section 5.02(b) of the Purchase Contract and Pledge Agreement (unless any such Holder has duly
notified the Purchase Contract Agent of its intent to effect a Cash Settlement and timely paid the Purchase Price).
(d) Notes purchased pursuant to the Put Right shall be cancelled by the Trustees.
ARTICLE X
TAX TREATMENT
10.1 U.S. Tax Treatment. The Corporation agrees, and by acceptance of a Corporate Unit or a Separate
Note, each Holder (or beneficial owner) will be deemed to have agreed, for U.S. federal, state and local income tax purposes (unless otherwise required by any taxing authority or required by a change in law occurring after the Original Issue Date),
(a) to treat each beneficial owner of a Corporate Unit as the owner of each of the applicable Purchase Contract and the applicable interests in the Collateral, including the Notes underlying the Applicable Ownership Interest in Notes constituting a
part of such Corporate Unit, (b) to treat the Notes as indebtedness, (c) with respect to Holders (or beneficial owners) who purchase Corporate Units upon issuance, to allocate, as of the Original Issue Date, 100% of a Holder’s (or beneficial
owner’s) purchase price for a Corporate Unit to the Applicable Ownership Interests in Notes and 0% to each Purchase Contract, which will establish each Holder’s (or beneficial owner’s) initial tax basis in each Purchase Contract as $0 and each
Holder’s (or beneficial owner’s) initial tax basis in each Applicable Ownership Interest in Notes as $50, and (d) in all events, not to take any position for U.S. federal, state or local income tax purposes that is inconsistent with or contrary to
the above covenants.
10.2 Canadian Tax Reporting. By purchase of a Corporate Unit upon issuance the Holder or beneficial owner agrees to allocate 100% of
the issue price of a Corporate Unit to the Note, and to allocate 0% to the Purchase Contract, and to file all Canadian income tax returns and information returns in a manner consistent with the foregoing.
ARTICLE XI
THE TRUSTEES
11.1 Security Registrar and Paying Agent. Pursuant to the Base Indenture, the Corporation hereby
appoints the U.S. Trustee as registrar and “Paying Agent” with respect to the Notes.
11.2 Concerning the Trustees. Each Trustee in each of its capacities hereunder assumes no duties,
responsibilities or liabilities by reason of this First Supplemental Indenture other than as set forth in the Base Indenture or as expressly set forth herein and, in carrying out its responsibilities hereunder, shall have all of the rights, powers,
privileges, protections, duties and immunities which it possesses in such capacities under the Base Indenture.
19
11.3 Patriot Act Requirements of Trustees. The parties hereto acknowledge that in order to help the
United States government fight the funding of terrorism and money laundering activities, pursuant to Federal regulations that became effective on October 1, 2003 (Section 326 of the USA PATRIOT Act) all financial institutions are required to
obtain, verify, record and update information that identifies each person establishing a relationship or opening an account. The parties to this First Supplemental Indenture agree that they will provide to the Trustees such information as it may
request, from time to time, in order for the Trustees to satisfy the requirements of the USA PATRIOT Act, including but not limited to the name, address, tax identification number and other information that will allow it to identify the individual
or entity who is establishing the relationship or opening the account and may also ask for formation documents such as articles of incorporation or other identifying documents to be provided.
11.4 Notice upon U.S. Trustee. Any notice, direction, request, demand, consent or waiver by the
Corporation or any Holder to or upon the U.S. Trustee, registrar or Paying Agent for the Notes shall be deemed to have been sufficiently given, made or filed, for all purposes, if given, made or filed in writing and received by Responsible Officers
of the Trustees at the Corporate Trust Office of the Trustee, with a copy to the Canadian Trustee (which delivery shall not constitute notice herein).
ARTICLE XII
MISCELLANEOUS
12.1 Ratification of Indenture; First Supplemental Indenture Controls. The Base Indenture, as
supplemented and (solely for purposes of the Notes) amended by this First Supplemental Indenture, is in all respects ratified and confirmed, and this First Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to the
extent herein and therein provided. The provisions of this First Supplemental Indenture shall supersede the provisions of the Base Indenture to the extent the Base Indenture is inconsistent herewith. For all purposes under the Base Indenture, the
Notes shall constitute a single series of Securities, and with regard to any matter requiring the consent under the Base Indenture of holders of multiple series of Securities voting together as a single class, the consent of Holders of the Notes
voting as a separate class shall also be required and the same threshold shall apply.
12.2 Recitals. The recitals herein contained are made by the Corporation only and not by the Trustees,
and the Trustees assume no responsibility for the correctness thereof. The Trustees make no representation as to the validity or sufficiency of this First Supplemental Indenture or the Notes. The Trustees shall have no responsibility or liability
with respect to any information, statement or recital in any prospectus, prospectus supplement or other disclosure material prepared or distributed with respect to the issuance of the Notes. The Trustees shall have no responsibility or liability
with respect to the interest rate on the Notes and whether at any time it complies with applicable law. All of the provisions contained in the Base Indenture in respect of the rights, powers, privileges, protections, duties and immunities of the
Trustees shall be applicable as fully and with like effect as if set forth herein in full.
20
12.3 Governing Law. This First Supplemental Indenture and each Note shall be governed by the laws of the
State of New York, and for all purposes shall be construed in accordance with the laws of said State (without regard to the conflicts of law principles thereof); provided, however, that the exercise, performance or discharge by the Canadian Trustee of any of its rights, powers, duties or
responsibilities under this First Supplemental Indenture or any Notes shall be construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein.
12.4 Separability. In case any one or more of the provisions contained in this First Supplemental
Indenture or in the Notes shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this First Supplemental Indenture or of the
Notes, but this First Supplemental Indenture and the Notes shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
12.5 Counterparts. This First Supplemental Indenture may be executed in any number of counterparts each
of which shall be an original; but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this First Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute
effective execution and delivery of this First Supplemental Indenture as to the parties hereto and may be used in lieu of the original First Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF
shall be deemed to be their original signatures for all purposes. For the avoidance of doubt, all notices, approvals, consents, requests and any communications hereunder or with respect to this First Supplemental Indenture must be in writing
(provided that any communication sent to the Trustees hereunder must be in the form of a document that is signed by hand, by facsimile, or by way of a digital signature provided by DocuSign or Adobe (or such other digital signature provider as
specified in writing to the Trustees by the authorized representative), in English). The Corporation agrees to assume all risks arising out of the use of digital signatures and electronic methods to submit communications to the Trustees, including,
without limitation, the risk of the Trustees acting on unauthorized instructions, and the risk of interception and misuse by third parties.
12.6 Jury Trial Waiver. EACH OF THE CORPORATION, THE HOLDERS AND THE TRUSTEES HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS FIRST SUPPLEMENTAL INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
12.7 Consent to Service. The Corporation irrevocably appoints CT Corporation as its agent to receive service of process or other legal
summons for purposes of any suit, action or proceeding relating to this First Supplemental Indenture, the Notes or the Transactions contemplated hereby that may be instituted in any state or federal court in the City and County of New York.
21
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed as of the date first above written.
ALGONQUIN POWER & UTILITIES CORP.
|
||||
By:
|
/s/ Arun Banskota
|
Name:
|
Arun Banskota
|
|
Title:
|
President & Chief Executive Officer
|
By:
|
/s/ Arthur Kacprzak
|
Name:
|
Arthur Kacprzak
|
|
Title:
|
Chief Financial Officer
|
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
|
|||
as U.S. Trustee
|
|||
By:
|
/s/ Lawrence M. Kusch
|
Name:
|
Lawrence M. Kusch
|
|
Title:
|
Vice President
|
BNY TRUST COMPANY OF CANADA,
|
|||
as Canadian Trustee
|
|||
By:
|
/s/ Ismail Bawa
|
Name:
|
Ismail Bawa
|
|
Title:
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Authorized Signatory
|
FORM OF
1.18% REMARKETABLE SENIOR NOTE DUE 2026
[THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY. THIS NOTE IS EXCHANGEABLE FOR
NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE
OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN SUCH LIMITED CIRCUMSTANCES.]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO [CEDE & CO.], ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THE NOTES EVIDENCED HEREBY WILL BE ISSUED, AND MAY BE TRANSFERRED, ONLY IN DENOMINATIONS OF $1,000 AND ANY GREATER INTEGRAL MULTIPLE OF $1,000, EXCEPT AS PROVIDED IN THE FIRST SUPPLEMENTAL
INDENTURE. ANY ATTEMPTED TRANSFER, SALE OR OTHER DISPOSITION OF NOTES IN A DENOMINATION OF LESS THAN $1,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER EXCEPT AS PROVIDED IN THE FIRST SUPPLEMENTAL INDENTURE. ANY SUCH TRANSFEREE
SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH NOTES FOR ANY PURPOSE, INCLUDING BUT NOT LIMITED TO THE RECEIPT OF PAYMENTS IN RESPECT OF SUCH NOTES, AND SUCH TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH NOTES.
A-1
ALGONQUIN POWER & UTILITIES CORP.
[Up to] $[ ]
1.18% REMARKETABLE SENIOR NOTE DUE 2026
Dated: [ ] [ ], 20[ ]
NUMBER R-[ ]
|
CUSIP NO: 015857 AF2
|
Registered Holder:
|
ISIN NO: US015857AF21
|
ALGONQUIN POWER & UTILITIES CORP., a corporation duly organized and existing under the laws of Canada (herein referred to as the “Corporation,” which term
includes any successor under the Indenture hereinafter referred to), for value received, hereby promises to pay to the Registered Holder named above, the principal sum [of _______ Dollars] [specified in the Schedule of Increases or Decreases in this
Note annexed hereto] on June 15, 2026 (the “Stated Maturity”), and to pay interest thereon at the rate of 1.18% per annum, such interest to accrue from June 23, 2021, subject to any reset of such interest rate
in connection with a Successful Remarketing, as described below. Subject to changes in the interest payment dates as set forth in the First Supplemental Indenture in connection with a Successful Remarketing, interest is payable quarterly in arrears
on each March 15, June 15, September 15 and December 15, commencing on September 15, 2021 (the “Interest Payment Dates”), until the principal thereof is paid or made available for payment. On and after the
Purchase Contract Settlement Date or, if earlier, the Optional Remarketing Settlement Date, interest on this Note will be payable at the relevant Reset Rate or, if the interest rate has not been reset, at the Coupon Rate of 1.18% per annum. The
Reset Rate, if any, shall be established pursuant to the terms of the Indenture (as defined on the reverse hereof) and the Remarketing Agreement. If Interest Payments are not paid, they will accrue and compound on each Interest Payment Date until
paid at the annual rate of 1.18% per annum, to the extent permitted by applicable law, unless a Successful Remarketing shall have occurred, in which case on and after the Remarketing Settlement Date the Notes shall bear interest, to the extent
permitted by law, on any overdue principal and interest at the Reset Rate.
The amount of interest payable for any period will be computed on the basis of a 360-day year of twelve 30-day months, and with respect to any period less than a full calendar month, on the basis
of the actual number of days elapsed during a 30-day month. The interest so payable on an Interest Payment Date will be paid to the Person in whose name this Note is registered, at the close of business on the Regular Record Date next preceding
such Interest Payment Date; provided that interest payable at Stated Maturity will be paid to the Person to whom principal is payable. Any such interest that is not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid (i) to the Person in whose name this Note (or any Note issued upon registration of transfer or exchange thereof) is registered at the close of
business on the record date for the payment of such defaulted interest established in accordance with Section 2.3 of the Base Indenture or (ii) at any time in any other lawful manner not inconsistent with the requirements of the securities
exchange, if any, on which the Notes may be listed, and upon such notice as may be required by such exchange. The “Regular Record Date” with respect to any Interest Payment Date for the Notes will be the
first day of the calendar month in which the applicable Interest Payment Date falls (whether or not a Business Day).
A-2
If an Interest Payment Date, Redemption Date or the Stated Maturity of the Notes or the date (if any) on which the Corporation is required to purchase the Notes falls on a day that is not a
Business Day, the applicable payment will be made on the next succeeding Business Day, and no interest shall accrue or be paid in respect of such delay.
This Note may be presented for payment of principal and interest at the office of the Paying Agent, in the continental United States; provided, however,
that payment of interest will be made by the Corporation (i) by check mailed to such address of the person entitled thereto as the address shall appear on the Register of the Notes or (ii) if such Person so requests and designates an account in
writing to the U.S. Trustee at least five Business Days prior to the relevant Interest Payment Date, by wire transfer to such account. Payments with respect to any Global Note or any Note corresponding to Applicable Ownership Interests in Notes
that are components of Corporate Units will be made by wire transfer to the Depository or in accordance with any other applicable procedures of the Depository. Payment of the principal and interest on this Note shall 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.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
In the case of any conflict between this Note and the Indenture, the provisions of the Indenture shall control and govern.
This Note shall not be entitled to any benefit under the Indenture, or be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed by or on
behalf of the Trustees under the Indenture.
A-3
IN WITNESS WHEREOF, Algonquin Power & Utilities Corp. has caused this instrument to be duly executed.
Dated:
|
||||
ALGONQUIN POWER & UTILITIES CORP.
|
||||
By:
|
||||
Name:
|
||||
Title:
|
||||
By:
|
||||
Name:
|
||||
Title:
|
A-4
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities, of the series designated herein, referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
|
|||
as U.S. Trustee
|
|||
By:
|
|||
Authorized Signatory |
A-5
REVERSE OF NOTE
This Note is one of a duly authorized issue of securities of the Corporation (herein called the “Securities”), issued and to be issued in one or more series
pursuant to the Indenture, dated as of June 23, 2021, among the Corporation, The Bank of New York Mellon Trust Company, N.A. (the “U.S. Trustee”) and BNY Trust Company of Canada, as the Canadian Trustee (the
“Canadian Trustee” and, together with the U.S. Trustee, the “Trustees”) (the “Base Indenture”, as it may be hereafter
supplemented or amended from time to time, the “Indenture”). Reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the
Corporation, the Trustee and the Holders (the word “Holder” or “Holders” meaning the registered holder or registered holders) of the Notes. This Note is one of the
series designated on the face hereof (the “Notes”) which is limited in aggregate principal amount to $1,000,000,000 (as increased by an aggregate principal amount equal to the aggregate Stated Amount of
Corporate Units with respect to which the Underwriters exercise their over-allotment option).
Capitalized terms used herein but not defined herein shall have the respective meanings assigned thereto in the Indenture.
As provided in and subject to the provisions in the Indenture, if there has been a Failed Final Remarketing, the Corporation may, at its option, redeem the Notes, in whole or in part, from time to
time on or after June 15, 2024, at a price equal to the Redemption Price, in accordance with Article III of the Base Indenture and Article III of the First Supplemental Indenture.
The Notes shall be remarketed as provided in the First Supplemental Indenture and the Purchase Contract and Pledge Agreement. In connection with a Successful Remarketing, the Remarketing Agent(s),
in consultation with the Corporation, may reset the interest rate. As provided in the First Supplemental Indenture, following any Successful Remarketing of the Notes, the interest will be payable semi-annually, on June 15 and December 15 of each
year, the Notes will cease to be redeemable at the Corporation’s option.
Pursuant to the First Supplemental Indenture, if there has not been a Successful Remarketing prior to the end of the Final Remarketing Period, Holders of the Notes will have the right to require
the Corporation to purchase such Notes for cash on the Purchase Contract Settlement Date at a price per Note to be purchased equal to the principal amount of the applicable Note.
The Notes are not subject to the operation of any sinking fund and, except as set forth in the First Supplemental Indenture, are not repayable at the option of a Holder thereof prior to the Stated
Maturity.
In the case an Event of Default, as defined in the Indenture, shall have occurred and be continuing, the principal of all of the Notes may be declared, and upon such declaration shall become, due
and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
A-6
Prior to the Purchase Contract Settlement Date, the provisions of Section 12.1 and Section 12.5 of the Base Indenture shall not apply to the Notes.
The Corporation will not pay any additional amounts to any Holder in respect of any tax, assessment or governmental charge.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Corporation and the rights of the Holders of the
Notes by the Corporation and the Trustees with the consent of the Holders of not less than a majority in principal amount of the Notes outstanding. The Indenture also contains provisions permitting the Holders of specified percentages in principal
amount of the Notes at the time outstanding, on behalf of the Holders of all outstanding Notes, to waive compliance by the Corporation with certain provisions of the Indenture, and contains provisions permitting the Holders of specified percentages
in principal amount in certain instances of the outstanding Notes, to waive on behalf of all of the Holders of Notes, certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note 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 Note.
As provided in and subject to the provisions of the Indenture, no Holder of Notes shall have any right by virtue or by availing of any provision of the Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to the Indenture or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless such Holder previously shall have given to the U.S. Trustee written notice of
an Event of Default and of the continuance thereof, as provided in the Indenture, and unless also the Holders of the requisite principal amount of all the Securities at the time outstanding, determined pursuant to Section 6.4 of the Base Indenture,
shall have made written request upon the U.S. Trustee to institute such action, suit or proceeding in its own name as U.S. Trustee under the Indenture and shall have offered to the U.S. Trustee such security and/or indemnity satisfactory to it as
it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the U.S. Trustee, for 60 days after its receipt of such notice, request and offer of indemnity, shall have declined to institute any such action, suit
or proceeding and no direction inconsistent with such written request shall have been given to the U.S. Trustee pursuant to Sections 6.4 and 6.6 of the Base Indenture; it being understood and intended, and being expressly covenanted by the taker
and Holder of every Note with every other taker and Holder and the U.S. Trustee, that no one or more Holders of Notes shall have any right in any manner whatever by virtue or by availing of any provision of the Indenture to affect, disturb or
prejudice the rights of the Holders of any other of such Securities, or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right under the Indenture, except in the manner therein provided and for the
equal, ratable and common benefit of all Holders of Securities. For the protection and enforcement of the provisions of Section 6.4 of the Base Indenture, each and every Securityholder and the U.S. Trustee shall be entitled to such relief as can
be given either at law or in equity.
A-7
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note may be registered on the Register of the Notes upon surrender of this Note for
registration of transfer at the offices maintained by the Corporation or its agent for such purpose, duly endorsed by the Holder hereof or its attorney duly authorized in writing, or accompanied by a written instrument of transfer in form
satisfactory to the Corporation and the Securities registrar duly executed by the Holder hereof or its attorney duly authorized in writing, but without payment of any charge other than a sum sufficient to reimburse the Corporation for any tax or
other governmental charge incident thereto. Upon any such registration of transfer, a new Note or Notes of authorized denomination or denominations for the same aggregate principal amount will be issued to the transferee in exchange herefor.
No service charge shall be made for any registration of transfer or exchange, but the Corporation may require payment of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith.
Pursuant to the First Supplemental Indenture, Notes that corresponded to Applicable Ownership Interests in Notes but are no longer a component of the Corporate Units and are released from the
Collateral Account will be initially issued as Global Notes. Except upon recreation of Corporate Units and except as otherwise provided in the Indenture, Notes represented by Global Notes will not be exchangeable for, and will not otherwise be
issuable as, Notes in certificated form. Unless and until such Global Notes are exchanged for Notes in certificated form, Global Notes may be transferred, in whole but not in part, and any payments on the Notes shall be made, only to the
Depository or a nominee of the Depository, or to a successor Depository selected or approved by the Corporation or to a nominee of such successor Depository.
By acceptance of this Note or a beneficial interest in this Note, each Holder hereof and any Person acquiring a beneficial interest herein, for United States federal, state and local tax purposes,
agrees to treat this Note as indebtedness and to take other positions for such tax purposes as set forth in the First Supplemental Indenture.
Prior to due presentment for registration of transfer of this Note, the Corporation, the Trustees, and any agent of the Corporation or the Trustees may deem and treat the person in whose name this
Note shall be registered upon the Register of the Securities of this series as the absolute owner of this Note (whether or not this Note shall be overdue and notwithstanding any notation of ownership or other writing hereon) for the purpose of
receiving payment of or on account of the principal hereof and, subject to the provisions on the face hereof, interest due hereon and for all other purposes; and neither the Corporation nor the Trustees nor any such agent shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of or interest on this Note, or for any claim based hereon or otherwise in respect hereof, or based on or in respect of the Indenture,
against any incorporator, stockholder, officer, director or employee, as such, past, present or future, of the Corporation or of any successor, either directly or through the Corporation, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as a part of the consideration for the issue hereof, expressly waived and released.
This Note shall be governed by the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of said State (without regard to the conflicts of law principles thereof).
Notwithstanding the preceding sentence, the exercise, performance or discharge by the Canadian Trustee of any of its rights, powers, duties or responsibilities hereunder shall be construed in accordance with the laws of the Province of Ontario
and the federal laws of Canada applicable therein.
A-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s) and transfer(s) unto
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(please insert Social Security or other identifying number of assignee)
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. |
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE OF ASSIGNEE
the within Note and all rights thereunder, hereby irrevocably constituting and appointing
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agent to transfer said Note on the books of the Corporation, with full power of substitution in the premises.
Dated: __________ __, ___
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NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within instrument in every particular without alteration or enlargement, or any change whatever.
A-9
SCHEDULE OF INCREASES OR DECREASES IN THIS NOTE
The initial principal amount of this Note is: $
Changes to Principal Amount of [Global] Note
Principal Amount by which this
|
|||||||
Note is to be Decreased or
|
Remaining
|
||||||
Increased and the Reason for the
|
Principal Amount
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Signature of
|
|||||
Date
|
Decrease or Increase
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Of this Note
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Trustee
|
||||
A-10
EXHIBIT B
FORM OF PUT NOTICE
TO: |
Algonquin Power & Utilities Corp.
|
The Bank of New York Mellon Trust Company, N.A. and BNY Trust Company of Canada
Please refer to the Indenture, dated as of June 23, 2021, among Algonquin Power & Utilities Corp. (the “Corporation”), The Bank of New York Mellon Trust Company, N.A. (the
“U.S. Trustee”) and BNY Trust Company of Canada, as the Canadian Trustee (the “Canadian Trustee” and, together with the U.S. Trustee, the “Trustees”) (the “Base Indenture”), as supplemented and amended by a First Supplemental Indenture dated as of June 23, 2021, by and among the Corporation and the Trustees (the “First Supplemental Indenture” and together with the Base Indenture, as it may be hereafter supplemented or amended from time to time, the “Indenture”). Capitalized terms
used herein but not defined shall have the meanings ascribed to such terms in the Indenture.
The undersigned registered Holder of the Note designated below, which is being delivered to the Trustee herewith, hereby requests and instructs the Corporation to purchase such Note or the portion
thereof specified below (so long as such portion is in a principal amount of $1,000 or an integral multiple thereof), in accordance with the terms of the Indenture, at the price of 100% of the principal amount of such Note (or portion thereof).
The Note (or portion thereof) shall be purchased by the Corporation as of the Purchase Contract Settlement Date pursuant to the terms and conditions specified in the Indenture.
Dated:
|
Signature:
|
NOTICE: The above signature of the Holder hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever.
Signature Guarantee:
|
Note Certificate Number (if applicable):
|
Principal Amount:
|
Portion to be purchased if other than the Principal Amount set forth above:
|
Social Security or Other Taxpayer Identification Number:
|
DTC Account Number (if applicable):
|
Name of Account Party (if applicable):
|
B-1
PAYMENT INSTRUCTIONS: The purchase price of the Note should be paid by check in the name of the person(s) set forth below and mailed to the address set forth below.
Name(s):
|
||
|
(Please Print) |
|
Address:
|
||
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(Please Print) |
|
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(Zip Code) |
(Tax Identification or Social Security Number)
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B-2
Exhibit 99.4
Execution Version
ALGONQUIN POWER & UTILITIES CORP.
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Purchase Contract Agent, Collateral Agent, Custodial Agent and Securities Intermediary
PURCHASE CONTRACT AND PLEDGE AGREEMENT
Dated as of June 23, 2021
TABLE OF CONTENTS
Page
|
|||
ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
|
1
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Section 1.01.
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Definitions
|
1
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Section 1.02.
|
Compliance Certificates and Opinions
|
22 |
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Section 1.03.
|
Form of Documents Delivered to Purchase Contract Agent
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22 |
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Section 1.04.
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Acts of Holders; Record Dates
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23 |
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Section 1.05.
|
Notices
|
24 |
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Section 1.06.
|
Notice to Holders; Waiver
|
25 |
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Section 1.07.
|
Effect of Headings and Table of Contents
|
25 |
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Section 1.08.
|
Successors and Assigns
|
25 |
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Section 1.09.
|
Separability Clause
|
26 |
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Section 1.10.
|
Benefits of Agreement
|
26 |
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Section 1.11.
|
Governing Law; Waiver of Jury Trial
|
26 |
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Section 1.12.
|
Legal Holidays
|
26 |
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Section 1.13.
|
Counterparts
|
27 |
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Section 1.14.
|
Inspection of Agreement
|
27 |
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Section 1.15.
|
Appointment of Financial Institution as Agent for the Corporation
|
27 |
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Section 1.16.
|
No Waiver
|
27 |
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ARTICLE 2 CERTIFICATE FORMS
|
28 |
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Section 2.01.
|
Forms of Certificates Generally
|
28 |
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Section 2.02.
|
Form of Purchase Contract Agent’s Certificate of Authentication
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28 |
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ARTICLE 3 THE UNITS
|
28 |
||
Section 3.01.
|
Amount; Form and Denominations
|
28 |
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Section 3.02.
|
Rights and Obligations Evidenced by the Certificates
|
28 |
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Section 3.03.
|
Execution, Authentication, Delivery and Dating
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29 |
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Section 3.04.
|
Temporary Certificates
|
30 |
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Section 3.05.
|
Registration; Registration of Transfer and Exchange
|
31 |
|
Section 3.06.
|
Book-Entry Interests
|
32 |
|
Section 3.07.
|
Notices to Holders
|
33 |
|
Section 3.08.
|
Appointment of Successor Depository
|
33 |
|
Section 3.09.
|
Definitive Certificates
|
33 |
|
Section 3.10.
|
Mutilated, Destroyed, Lost and Stolen Certificates
|
34 |
|
Section 3.11.
|
Persons Deemed Owners
|
35 |
|
Section 3.12.
|
Cancellation
|
37 |
|
Section 3.13.
|
Creation of Treasury Units by Substitution of Treasury Securities
|
37 |
|
Section 3.14.
|
Recreation of Corporate Units
|
39 |
|
Section 3.15.
|
Transfer of Collateral Upon Occurrence of Termination Event
|
40 |
|
Section 3.16.
|
No Consent to Assumption
|
42 |
|
Section 3.17.
|
Substitutions
|
42 |
i
ARTICLE 4 THE NOTES
|
42 |
||
Section 4.01.
|
Interest Payments; Rights to Interest Payments Preserved
|
42 |
|
Section 4.02.
|
Payments Prior to or on Purchase Contract Settlement Date
|
44 |
|
Section 4.03.
|
Notice and Voting
|
45 |
|
Section 4.04.
|
Payments and Deliveries to Purchase Contract Agent
|
46 |
|
Section 4.05.
|
Payments Held in Trust
|
46 |
|
ARTICLE 5 THE PURCHASE CONTRACTS
|
47 |
||
Section 5.01.
|
Purchase of Common Shares
|
47 |
|
Section 5.02.
|
Remarketing
|
51 |
|
Section 5.03.
|
Cash Settlement; Payment of Purchase Price
|
59 |
|
Section 5.04.
|
Issuance of Common Shares
|
62 |
|
Section 5.05.
|
Adjustment of each Fixed Settlement Rate
|
63 |
|
Section 5.06.
|
Notice of Adjustments and Certain Other Events
|
78 |
|
Section 5.07.
|
Termination Event; Notice
|
78 |
|
Section 5.08.
|
Early Settlement
|
79 |
|
Section 5.09.
|
No Fractional Shares
|
82 |
|
Section 5.10.
|
Charges and Taxes
|
82 |
|
Section 5.11.
|
Contract Adjustment Payments
|
83 |
|
Section 5.12.
|
Deferral of Contract Adjustment Payments
|
88 |
|
Section 5.13.
|
Withholding
|
90 |
|
ARTICLE 6 RIGHTS AND REMEDIES OF HOLDERS
|
91 |
||
Section 6.01.
|
Unconditional Right of Holders to Receive Contract Adjustment Payments and to Purchase Common Shares
|
91 |
|
Section 6.02.
|
Restoration of Rights and Remedies
|
91 |
|
Section 6.03.
|
Rights and Remedies Cumulative
|
91 |
|
Section 6.04.
|
Delay or Omission Not Waiver
|
92 |
|
Section 6.05.
|
Undertaking for Costs
|
92 |
|
Section 6.06.
|
Waiver of Stay or Extension Laws
|
92 |
|
ARTICLE 7 THE PURCHASE CONTRACT AGENT
|
92 |
||
Section 7.01.
|
Certain Duties and Responsibilities
|
92 |
|
Section 7.02.
|
Notice of Default
|
94 |
|
Section 7.03.
|
Certain Rights of Purchase Contract Agent
|
94 |
|
Section 7.04.
|
Not Responsible for Recitals or Issuance of Units
|
96 |
|
Section 7.05.
|
May Hold Units
|
97 |
|
Section 7.06.
|
Money Held in Custody; Collateral Documents
|
97 |
|
Section 7.07.
|
Compensation and Reimbursement
|
97 |
|
Section 7.08.
|
Corporate Purchase Contract Agent Required; Eligibility
|
99 |
|
Section 7.09.
|
Resignation and Removal; Appointment of Successor
|
99 |
|
Section 7.10.
|
Acceptance of Appointment by Successor
|
100 |
|
Section 7.11.
|
Merger, Conversion, Consolidation, Amalgamation, Arrangement or Succession to Business
|
101 |
|
Section 7.12.
|
Preservation of Information
|
101 |
|
Section 7.13.
|
No Obligations of Purchase Contract Agent
|
101 |
|
Section 7.14.
|
Acknowledgement of Appointment
|
102 |
|
ARTICLE 8 SUPPLEMENTAL AGREEMENTS
|
102 |
ii
Section 8.01.
|
Supplemental Agreements without Consent of Holders
|
102 |
|
Section 8.02.
|
Supplemental Agreements with Consent of Holders
|
103 |
|
Section 8.03.
|
Execution of Supplemental Agreements
|
104 |
|
Section 8.04.
|
Effect of Supplemental Agreements
|
104 |
|
Section 8.05.
|
Reference to Supplemental Agreements
|
104 |
|
ARTICLE 9 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
|
104 |
||
Section 9.01.
|
Covenant Not to Consolidate, Merge, Convey, Transfer or Lease Property except under Certain Conditions
|
104 |
|
Section 9.02.
|
Rights and Duties of Successor Person
|
105 |
|
Section 9.03.
|
Officers’ Certificate and Opinion of Counsel Given to Purchase Contract Agent
|
106 |
|
ARTICLE 10 COVENANTS
|
106 |
||
Section 10.01.
|
Performance under Purchase Contracts
|
106 |
|
Section 10.02.
|
Maintenance of Office or Agency
|
106 |
|
Section 10.03.
|
Corporation to Reserve Common Shares
|
106 |
|
Section 10.04.
|
Covenants as to Common Shares; Listing
|
107 |
|
Section 10.05.
|
Statements of Officers of the Corporation as to Default
|
107 |
|
Section 10.06.
|
ERISA
|
107 |
|
Section 10.07.
|
Tax Treatment
|
107 |
|
Section 10.08.
|
Remarketing Agreement
|
108 |
|
ARTICLE 11 PLEDGE
|
108 |
||
Section 11.01.
|
Pledge
|
108 |
|
Section 11.02.
|
Termination
|
108 |
|
ARTICLE 12 ADMINISTRATION OF COLLATERAL
|
109 |
||
Section 12.01.
|
Initial Deposit of Notes
|
109 |
|
Section 12.02.
|
Establishment of Collateral Account
|
109 |
|
Section 12.03.
|
Treatment as Financial Assets
|
110 |
|
Section 12.04.
|
Sole Control by Collateral Agent
|
110 |
|
Section 12.05.
|
Jurisdiction
|
110 |
|
Section 12.06.
|
No Other Claims
|
111 |
|
Section 12.07.
|
Investment and Release
|
111 |
|
Section 12.08.
|
Statements and Confirmations
|
111 |
|
Section 12.09.
|
[Reserved.]
|
111 |
|
Section 12.10.
|
No Other Agreements
|
111 |
|
Section 12.11.
|
Powers Coupled with an Interest
|
111 |
|
Section 12.12.
|
Waiver of Lien; Waiver of Set-off
|
111 |
|
ARTICLE 13 RIGHTS AND REMEDIES OF THE COLLATERAL AGENT
|
111 |
||
Section 13.01.
|
Rights and Remedies of the Collateral Agent
|
112 |
|
ARTICLE 14 REPRESENTATIONS AND WARRANTIES TO COLLATERAL AGENT; HOLDER COVENANTS
|
113 |
||
Section 14.01.
|
Representations and Warranties
|
113 |
|
Section 14.02.
|
Covenants
|
113 |
iii
ARTICLE 15 THE COLLATERAL AGENT, THE CUSTODIAL AGENT AND THE SECURITIES INTERMEDIARY
|
114 |
||
Section 15.01.
|
Appointment, Powers and Immunities
|
114 |
|
Section 15.02.
|
Instructions of the Corporation
|
115 |
|
Section 15.03.
|
Reliance by Collateral Agent, Custodial Agent and Securities Intermediary
|
115 |
|
Section 15.04.
|
Certain Rights
|
116 |
|
Section 15.05.
|
Merger, Conversion, Amalgamation, Arrangement, Consolidation or Succession to Business
|
116 |
|
Section 15.06.
|
Rights in Other Capacities
|
117 |
|
Section 15.07.
|
Non-reliance on the Collateral Agent, Custodial Agent and Securities Intermediary
|
117 |
|
Section 15.08.
|
Compensation and Indemnity
|
117 |
|
Section 15.09.
|
Failure to Act
|
118 |
|
Section 15.10.
|
Resignation of Collateral Agent, the Custodial Agent and the Securities Intermediary
|
119 |
|
Section 15.11.
|
Right to Appoint Agent or Advisor
|
120 |
|
Section 15.12.
|
Survival
|
120 |
|
Section 15.13.
|
Exculpation
|
120 |
|
Section 15.14.
|
Expenses, Etc.
|
120 |
|
Section 15.15.
|
Force Majeure
|
121 |
|
ARTICLE 16 MISCELLANEOUS
|
121 |
||
Section 16.01.
|
Security Interest Absolute
|
121 |
|
Section 16.02.
|
Notice of Termination Event
|
121 |
|
Section 16.03.
|
PATRIOT ACT
|
122 |
|
Section 16.04.
|
Instructions to BNYM
|
122 |
EXHIBITS
Exhibit A
|
—
|
Form of Corporate Units Certificate
|
|
Exhibit B
|
—
|
Form of Treasury Units Certificate
|
|
Exhibit C
|
—
|
Instruction to Purchase Contract Agent From Holder (To Create Treasury Units or Corporate Units)
|
|
Exhibit D
|
—
|
Notice from Purchase Contract Agent to Holders Upon Termination Event (Transfer of Collateral upon Occurrence of a Termination Event)
|
|
Exhibit E
|
—
|
Notice to Settle with Cash
|
|
Exhibit F
|
—
|
Instruction from Purchase Contract Agent to Collateral Agent (Creation of Treasury Units)
|
|
Exhibit G
|
—
|
Instruction from Collateral Agent to Securities Intermediary (Creation of Treasury Units)
|
|
Exhibit H
|
—
|
Instruction from Purchase Contract Agent to Collateral Agent (Recreation of Corporate Units)
|
|
Exhibit I
|
—
|
Instruction from Collateral Agent to Securities Intermediary (Recreation of Corporate Units)
|
iv
Exhibit J
|
—
|
Notice to Settle with Cash from Purchase Contract Agent to Collateral Agent (Cash Settlement Amounts)
|
|
Exhibit K
|
—
|
Instruction to Custodial Agent Regarding Remarketing
|
|
Exhibit L
|
—
|
Instruction to Custodial Agent Regarding Withdrawal from Remarketing
|
|
Exhibit M
|
—
|
Notice to Settle with Cash After Failed Final Remarketing
|
|
Exhibit N
|
—
|
Notice from Purchase Contract Agent to Collateral Agent (Settlement with Separate Cash)
|
|
Exhibit O
|
—
|
Notice of Settlement with Separate Cash from Securities Intermediary to Purchase Contract Agent and Collateral Agent (Settlement with Separate Cash)
|
|
Exhibit P
|
—
|
Form of Remarketing Agreement
|
v
PURCHASE CONTRACT AND PLEDGE AGREEMENT, dated as of June 23, 2021, among ALGONQUIN POWER & UTILITIES CORP., a corporation duly organized and existing under the laws of Canada (the “Corporation”),
and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, acting as purchase contract agent for, and, for purposes of the Pledge created hereby, as attorney-in-fact of, the Holders from time to time of the Units (in such
capacities, together with its successors and assigns in such capacities, the “Purchase Contract Agent”), as collateral agent hereunder for the benefit of the Corporation (in such capacity, together with its successors in such capacity, the “Collateral
Agent”), as custodial agent (in such capacity, together with its successors in such capacity, the “Custodial Agent”), and as securities intermediary (as defined in Section 8-102(a)(14) of the UCC) with respect to the Collateral Account
(in such capacity, together with its successors in such capacity, the “Securities Intermediary”).
RECITALS
WHEREAS, the Corporation has duly authorized the execution and delivery of this Agreement and the Certificates evidencing the Units; and
WHEREAS, all things necessary to make the Purchase Contracts, when the Certificates are executed by the Corporation and authenticated, executed on behalf of the Holders and delivered by the
Purchase Contract Agent, as provided in this Agreement, the valid obligations of the Corporation, and to constitute these presents a valid agreement of the Corporation, in accordance with its terms, have been done; and
WHEREAS, pursuant to the terms of this Agreement and the Purchase Contracts, the Holders have irrevocably authorized the Purchase Contract Agent, as attorney-in-fact of such Holders, among other
things, to execute and deliver this Agreement on behalf of such Holders as the attorney-in-fact of such Holders and to grant the Pledge provided herein of the Collateral to secure the Obligations.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in this Article and include the plural
as well as the singular, and nouns and pronouns of the masculine gender include the feminine and neuter genders;
(b) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with
generally accepted accounting principles in the United States;
(c) the words “herein,”
“hereof” and “hereunder” and other words of similar import refer
to this Agreement as a whole and not to any particular Article, Section, Exhibit or other subdivision;
(d) the following terms, which are defined in the UCC, shall have the meanings set forth therein: “certificated security,” “control,” “financial
asset,” “entitlement order,” “securities account” and “security entitlement”;
(e) unless the context otherwise requires, any reference to an “Article” or “Section” or an “Exhibit”
refers to an Article or Section of, or an Exhibit to, as the case may be, this Agreement; and
(f) the following terms have the meanings given to them in this Section 1.01(f):
“Act” has the meaning, with respect to any Holder, set forth in Section 1.04(a).
“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” has the meaning set forth in Section 1.05; provided that, solely for purposes of Section 15.03, “Agent” shall have the meaning set forth therein.
“Agreement” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more agreements supplemental hereto entered into pursuant to the
applicable provisions hereof.
“Applicable Market Value” has the meaning set forth in Section 5.01(a).
“Applicable Ownership Interest in Notes” means a 1/20 or 5% undivided beneficial ownership interest in $1,000 principal amount of Notes that is a component of a Corporate Unit.
“Applicable Ownership Interest in the Treasury Portfolio” means:
(i) a 1/20 or 5% undivided beneficial ownership interest in $1,000 face amount of U.S.
Treasury securities (or principal or interest strips thereof) included in the Treasury Portfolio that mature on or prior to the Purchase Contract Settlement Date; and
(ii) for the scheduled Interest Payment Date on the Notes occurring on the Purchase Contract
Settlement Date, a 0.01475% undivided beneficial ownership interest in $1,000 face amount of U.S. Treasury
securities (or principal or interest strips thereof) included in the Treasury Portfolio that mature on or prior to the Purchase Contract Settlement Date.
2
If U.S. Treasury securities (or principal or interest strips thereof) that are to be included in the Treasury Portfolio in connection with a Successful Optional Remarketing have a yield that is
less than zero on the Optional Remarketing Date, the Treasury Portfolio will consist of an amount in cash equal to the aggregate principal amount at maturity of the U.S. Treasury securities described in clauses (i) and (ii) above. If the
provisions set forth in this paragraph apply, for all purposes herein, references to “Treasury security” and “U.S. Treasury securities (or principal or interest strips thereof)” in connection with the Treasury Portfolio will be deemed to be
references to such aggregate amount of cash, and any reference to clause (i) or (ii) in the definition of “Applicable Ownership Interest in the Treasury Portfolio” shall be deemed to be a reference to the portion of such aggregate cash amount equal
to the aggregate principal amount at maturity of the undivided beneficial ownership interest in the U.S. Treasury securities described in clause (i) above or clause (ii) above, respectively.
“Applicable Procedures” means, with respect to any payment, tender, redemption, transfer or exchange of or for beneficial interests in any Global Certificate, the rules and procedures of the
Depository that apply to such payment, tender, redemption, transfer or exchange.
“Applicable Remarketing Period” means any of (i) any Optional Remarketing Period for which the Corporation has elected to conduct an Optional Remarketing pursuant to Section 5.02(a) or (ii)
the Final Remarketing Period, as the context requires.
“Authorized Officer” means the Chief Executive Officer, the President, any Officer, the Treasurer or any other Person duly authorized by the Corporation to act in respect of the matters
relating to this Agreement.
“Bankruptcy Code” means Title 11 of the United States Code, or any other law of the United States that from time to time provides a uniform system of bankruptcy laws.
“Base Indenture” means the Indenture, dated as of June 23, 2021, among the Corporation, The Bank of New York Mellon Trust Company, N.A., as U.S. trustee, and BNY Trust Company of Canada, as
Canadian trustee.
“Beneficial Owner” means, with respect to a Book-Entry Interest, a Person who is the beneficial owner of such Book-Entry Interest as reflected on the books of the Depository or on the books
of a Person maintaining an account with such Depository (directly as a Depository Participant or as an indirect participant, in each case in accordance with the rules of such Depository).
“Blackout Period” means the period (i) if the Corporation elects to conduct an Optional Remarketing, from 4:00 p.m., New York City time, on the second Business Day immediately preceding the
first day of an Optional Remarketing Period until the corresponding Remarketing Settlement Date or the date the Corporation announces that such Optional Remarketing was unsuccessful and (ii) after 4:00 p.m., New York City time, on the second
Business Day immediately preceding the first day of the Final Remarketing Period.
“BNYM” has the meaning set forth in Section 7.14.
“Board of Directors” means the board of directors of the Corporation or a duly authorized committee of that board or, to the extent duly authorized by such board of directors to act on its
behalf, two or more Authorized Officers of the Corporation, acting jointly.
“Board Resolution” means one or more resolutions of the Board of Directors, a copy of which has been certified by the Secretary or an Assistant Secretary of the Corporation 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 Purchase Contract Agent.
3
“Book-Entry Interest” means a beneficial interest in a Global Certificate, registered in the name of a Depository or a nominee thereof, ownership and transfers of which shall be maintained
and made through book entries by such Depository as described in Section 3.06.
“Business Day” means any day that is not a Saturday or Sunday or a day on which banking institutions in The City of New York are authorized or required by law or executive order to close or
a day on which the Corporate Trust Office is closed for business.
“Canadian Indenture Trustee” means BNY Trust Company of Canada, as Canadian trustee.
“Canadian Prospectus” means the final prospectus relating to the shares or any securities deliverable in
connection with an Early Settlement pursuant to Section 5.08, if so required as contemplated by Section 5.08, or a Fundamental Change Early Settlement of Purchase Contracts pursuant to Section 5.05(b)(ii), if so required as contemplated by
Section 5.05(b)(ii), filed with the applicable Canadian Securities Regulators, including the documents incorporated by reference therein as of the date of such Canadian Prospectus.
“Canadian Securities Laws” means the applicable securities laws in each of the provinces and territories
of Canada and the respective rules and regulations thereunder, together with applicable published fee schedules, prescribed forms, national, multilateral and local policy statements, instruments, notices and blanket orders of the Canadian
Securities Regulators in each of the provinces and territories of Canada.
“Canadian Securities Regulators” means, collectively, the securities commissions or other securities regulatory authorities in each of the provinces and territories of Canada.
“CAP Obligations” has the meaning set forth in Section 5.11(d).
“Cash” means any coin or currency of the United States as at the time shall be legal tender for payment of public and private debts.
“Cash Settlement” means any settlement by a Holder of its Obligations to pay the Purchase Price on the Purchase Contract Settlement Date with separate cash pursuant to Section 5.02(b)(ix) or
5.03(a)(i).
“Certificate” means a Corporate Units Certificate or a Treasury Units Certificate, as the case may be.
“Clause (i) Distribution” has the meaning set forth in Section 5.05(a)(iv).
“Clause (ii) Distribution” has the meaning set forth in Section 5.05(a)(iv).
“Clause (iv) Distribution” has the meaning set forth in Section 5.05(a)(iv).
“Closing Price” has the meaning set forth in Section 5.01(a).
4
“Code” means the Internal Revenue Code of 1986, as amended.
“Collateral” means the collective reference to:
(i) the Collateral Account and all investment property and other financial assets from time
to time credited to the Collateral Account and all security entitlements with respect thereto (other than the Applicable Ownership Interests in the Treasury Portfolio as specified in clause (ii) of the definition of Applicable Ownership Interests
in the Treasury Portfolio), including, without limitation, (A) the Applicable Ownership Interests in Notes and security entitlements relating thereto (and the Notes and security entitlements relating thereto delivered to the Collateral Agent in
respect of such Applicable Ownership Interests in Notes), (B) the Applicable Ownership Interests in the Treasury Portfolio (as specified in clause (i) of the definition of Applicable Ownership Interest in the Treasury Portfolio) of the Holders
with respect to the Treasury Portfolio that is a component of the Corporate Units from time to time and security entitlements relating thereto, (C) any Treasury Securities and security entitlements relating thereto Transferred to the Collateral
Agent, for credit to the Collateral Account, from time to time in connection with the creation of Treasury Units in accordance with Section 3.13 and (D) payments made by Holders pursuant to Section 5.02(b)(ix) or 5.03;
(ii) all Proceeds of any of the foregoing (whether such Proceeds arise before or after the
commencement of any proceeding under any applicable bankruptcy, insolvency or other similar law, by or against the pledgor or with respect to the pledgor), other than Interest Payments on the Notes and any other income or distributions in respect
of any Notes, Pledged Applicable Ownership Interest in the Treasury Portfolio or Permitted Investments that Holders are entitled to receive pursuant to Section 4.01(a); and
(iii) all powers and rights now owned or hereafter acquired under or with respect to the
Collateral.
“Collateral Account” means the securities account of the Collateral Agent, maintained on the books of the Securities Intermediary and designated “Algonquin Power & Utilities Corp.
Collateral Account”, or any successor securities account of a successor Collateral Agent.
“Collateral Agent” means the Person named as “Collateral Agent” in the first paragraph of this Agreement, acting in its capacity as such hereunder, until a successor Collateral Agent shall
have become such pursuant to this Agreement, and thereafter “Collateral Agent” shall mean the Person who is then the Collateral Agent hereunder.
“collateral event of default” has the meaning set forth in Section 13.01(b).
“Collateral Substitution” means (i) with respect to the Corporate Units, the substitution of the Pledged Applicable Ownership Interests in Notes included in such Corporate Units with
Treasury Securities in an aggregate principal amount at maturity equal to the aggregate principal amount of such Pledged Applicable Ownership Interests in Notes, or (ii) with respect to the Treasury Units, the substitution of the Pledged Treasury
Securities included in such Treasury Units with Notes in an aggregate principal amount equal to the aggregate principal amount at stated maturity of the Pledged Treasury Securities.
5
“Common Shares” means common shares in the capital of the Corporation, subject to Section 5.05(b)(i).
“Compounded Contract Adjustment Payments” has the meaning set forth in Section 5.12(a).
“Constituent Person” has the meaning set forth in Section 5.05(b)(i).
“Contract Adjustment Payment Date” means March 15, June 15, September 15 and December 15 of each year, commencing on September 15, 2021.
“Contract Adjustment Payments” means amounts payable by the Corporation on each Contract Adjustment Payment Date in respect of each Purchase Contract, at a rate per year of 6.57% on the
Stated Amount per Purchase Contract.
“Corporate Trust Office” means the office of the Purchase Contract Agent at 4655 Salisbury Road, Suite 300, Jacksonville, Florida 32256, Attention: Corporate Trust Administration, and such
office shall also include the office or agency of the U.S. Indenture Trustee located at 4655 Salisbury Road, Suite 300, Jacksonville, Florida 32256, Attention: Corporate Trust Administration, or such other address as the Purchase Contract Agent may
designate from time to time by notice to the Holders and the Corporation, or the principal corporate trust office of any successor Purchase Contract Agent as designated by written notice to the Holders and the Corporation (or such other address as
such successor Purchase Contract Agent may designate from time to time by notice to the Holders and the Corporation), which office must be located in the continental United States of America.
“Corporate Unit” means the collective rights and obligations of a Holder of a Corporate Units Certificate in respect of the Applicable Ownership Interest in Notes or the Applicable Ownership
Interest in the Treasury Portfolio, as the case may be, subject in each case to the Pledge thereof (except that the Applicable Ownership Interest in the Treasury Portfolio as specified in clause (ii) of the definition thereof shall not be subject
to the Pledge) and the related Purchase Contract.
“Corporate Units Certificate” means a certificate evidencing the rights and obligations of a Holder in respect of the number of Corporate Units specified on such certificate.
“Corporation” means the Person named as the “Corporation” in the first paragraph of this Agreement until a successor shall have become such pursuant to the applicable provision of this
Agreement, and thereafter “Corporation” shall mean such successor.
“Current Market Price”:
(a) for purposes of Section 5.05(a)(ii) and (iv) (except with respect to Spin-Offs), means, in respect of a
Common Share or any other security on any day of determination, the average VWAP of the Common Shares on the Principal Exchange or average volume weighted average price of such other security on the principal U.S. or Canadian securities exchange
or quotation system on which such other security is listed or quoted at that time, in each case for the 10 consecutive Trading Days preceding the earlier of the Trading Day preceding the day in question and the Trading Day before the Ex Date with
respect to the issuance or distribution requiring such computation;
6
(b) for purposes of Section 5.05(a)(iv), with respect to Spin-Offs, has the meaning set forth in the portion of
such Section relating to Spin-Offs;
(c) for purposes of Section 5.05(a)(v), means, in respect of a Common Share, the Closing Price of the Common
Shares on the Trading Day immediately preceding the Ex Date for the relevant cash dividend or distribution; and
(d) for purposes of Section 5.05(a)(vi), means, in respect of a Common Share, the Closing Price of the Common
Shares on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to the relevant issuer bid, tender offer or exchange offer.
The Current Market Price for any day will be expressed in U.S. dollars and, if expressed in a different currency for such day as determined above, will be translated to U.S. dollars at the
Prevailing Exchange Rate on such Trading Day.
“Custodial Agent” means the Person named as Custodial Agent in the first paragraph of this Agreement, acting in its capacity as such hereunder, until a successor Custodial Agent shall have
become such pursuant to the applicable provisions of this Agreement, and thereafter “Custodial Agent” shall mean the Person who is then the Custodial Agent hereunder.
“Depository” means a clearing agency registered under Section 17A of the Exchange Act that is designated to act as Depository for the Units as contemplated by Sections 3.06 and 3.08.
“Depository Participant” means a broker, dealer, bank, other financial institution or other Person for whom from time to time the Depository effects book entry transfers and pledges of
securities deposited with the Depository.
“DTC” means The Depository Trust Company.
“Early Settlement” has the meaning set forth in Section 5.08(a).
“Early Settlement Amount” has the meaning set forth in Section 5.08(b).
“Early Settlement Date” has the meaning set forth in Section 5.08(b).
“Effective Date” has the meaning set forth in Section 5.05(b)(iii).
“Electronic Means” means the following communications methods: e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or
authentication keys issued by the Agent (as defined in Section 1.05), or another method or system specified by the Agent as available for use in connection with its services hereunder.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder.
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“Event of Default” has the meaning set forth in the Indenture.
“Ex Date,” with respect to any issuance or distribution on the Common Shares or any other security, means the first date on which the Common Shares or such other security, as applicable,
trades, regular way, on the Principal Exchange (in the case of the Common Shares) or the principal U.S. or Canadian securities exchange or quotation system on which such other security, as applicable, is listed or quoted at that time, without the
right to receive such issuance or distribution.
“Exchange Act” means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time, and the rules and regulations promulgated thereunder.
“Exchange Property Unit” has the meaning set forth in Section 5.05(b)(i).
“Expiration Date” has the meaning set forth in Section 1.04(e).
“Expiration Time” has the meaning set forth in Section 5.05(a)(vi).
“Extension Period” has the meaning set forth in Section 5.12(a).
“Failed Final Remarketing” has the meaning set forth in Section 5.02(b)(ix).
“Failed Optional Remarketing” has the meaning set forth in Section 5.02(a)(x).
“Failed Remarketing” means, as applicable, a Failed Optional Remarketing or a Failed Final Remarketing.
“Fair Market Value” has the meaning set forth in Section 5.05(a)(iv).
“Final Remarketing” means any Remarketing of the Notes that occurs during the Final Remarketing Period by the Remarketing Agent(s) pursuant to the Remarketing Agreement.
“Final Remarketing Date” means the date the Corporation prices the Notes offered in the Final Remarketing.
“Final Remarketing Period” means the five (5) Business Day period ending on, and including, the second Business Day immediately preceding the Purchase Contract Settlement Date.
“Fixed Settlement Rates” means the Minimum Settlement Rate and the Maximum Settlement Rate, collectively.
“Fundamental Change” means:
(a) a “person” or “group” within the meaning of Section 13(d) of the Exchange Act has become the direct or
indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of Common Shares representing more than 50% of the voting power of the Common Shares;
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(b) (i) the Corporation is involved in a consolidation, merger, arrangement or amalgamation with or into any
other Person, or any other similar transaction or series of related transactions (other than a consolidation, merger, arrangement or amalgamation or similar transaction or series of related transactions that does not result in the conversion or
exchange of outstanding Common Shares), in each case, in which 90% or more of the outstanding Common Shares are exchanged for or converted into cash, securities or other property, greater than 10% of the value of which (determined pursuant to
Section 5.05(b)(i)) consists of cash, securities or other property that is not (or will not be upon or immediately following the effectiveness of such consolidation, merger or other transaction or series of related transactions) common shares
listed on the New York Stock Exchange, the Nasdaq Global Select Market, the Nasdaq Global Market or the Toronto Stock Exchange (or any of their respective successors) or (ii) the consummation of any sale, lease or other transfer in one
transaction or a series of related transactions of all or substantially all of the Corporation’s consolidated assets to any Person other than one of the Corporation’s subsidiaries;
(c) the Common Shares cease to be listed on at least one of the New York Stock Exchange, the Nasdaq Global
Select Market, the Nasdaq Global Market and the Toronto Stock Exchange (or any of their respective successors); or
(d) the Corporation’s shareholders approve the Corporation’s liquidation, dissolution or termination.
For the avoidance of doubt, if the Corporation is involved in a consolidation, merger, arrangement or amalgamation with or into any other Person, or any other similar transaction or series of
related transactions (other than a consolidation, merger, arrangement or amalgamation or similar transaction that does not result in the conversion or exchange of outstanding Common Shares) that also constitutes a transaction described in clause
(a) of this definition, the determination of whether such consolidation, merger or other similar transaction or series of related transactions constitutes a “Fundamental Change” shall be governed solely by clause (b)(i) of this definition.
“Fundamental Change Early Settlement” has the meaning set forth in Section 5.05(b)(ii).
“Fundamental Change Early Settlement Date” has the meaning set forth in Section 5.05(b)(ii).
“Fundamental Change Early Settlement Right” has the meaning set forth in Section 5.05(b)(ii).
“Fundamental Change Exercise Period” has the meaning set forth in Section 5.05(b)(ii).
“Global Certificate” means a Certificate that evidences all or part of the Units and is registered in the name of the Depository or a nominee thereof.
“Hague Securities Convention” means the Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary, dated July 5, 2006, as signed by the United
States on such date, which came into legal effect on April 1, 2017.
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“Holder” means, with respect to a Unit, the Person in whose name the Unit evidenced by a Certificate is registered in the Security Register; provided, however, that solely
for the purpose of determining whether the Holders of the requisite number of Units have voted on any matter (and not for any other purpose hereunder), if the Unit remains in the form of one or more Global Certificates and if the Depository that is
the registered holder of such Global Certificate has sent an omnibus proxy assigning voting rights to the Depository Participants to whose accounts the Units are credited on the record date, the term “Holder” shall mean such Depository
Participant acting at the direction of the Beneficial Owners.
“Indemnitees” has the meaning set forth in Section 7.07(c).
“Indenture” means the Base Indenture, as amended and supplemented by the Supplemental Indenture, as it may be further amended and/or supplemented from time to time.
“Indenture Trustees” means the U.S. Indenture Trustee and the Canadian Indenture Trustee.
“Initial Public Offering” has the meaning set forth in Section 5.05(a)(iv).
“Insolvency Proceeding” means any proceeding taken under and pursuant to the Companies’ Creditors Arrangement Act (Canada) or the Bankruptcy and Insolvency Act (Canada) or any corporate arrangement, winding up, reorganization, receivership or similar proceedings commenced in a court of competent jurisdiction including, for greater
certainty, under the Bankruptcy Code.
“Interest Payment” has the meaning set forth in the Supplemental Indenture.
“Interest Payment Date” has the meaning set forth in the Supplemental Indenture.
“Issuer Order” or “Issuer Request” means a written order or request signed in the name of the Corporation by an Authorized Officer of the Corporation, and delivered to the Purchase
Contract Agent.
“Losses” has the meaning set forth in Section 15.08(b).
“Make-Whole Shares” has the meaning set forth in Section 5.05(b)(ii).
“Market Disruption Event” has the meaning set forth in Section 5.01(a).
“Market Value Averaging Period” has the meaning set forth in Section 5.01(a).
“Maximum Settlement Rate” has the meaning set forth in Section 5.01(a).
“Merger Common Shares” has the meaning set forth in Section 5.05(b)(i)(A).
“Merger Valuation Percentage” means, with respect to any Reorganization Event:
(i) if the Merger Common Shares are listed, quoted or traded on any securities exchange
or quotation system during the Merger Valuation Period, a percentage equal to (x) the arithmetic average of the Closing Prices of one Merger Common Share over the relevant Merger Valuation Period (determined as if references to “Common Shares” in
the definition of “Closing Price” were references to such Merger Common Shares), divided by (y) the arithmetic average of the Closing Prices of one Common Share over the relevant Merger Valuation Period; and
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(ii) otherwise, a percentage equal to (x) the Closing Price of one Merger Common Share
(determined as if references to “Common Shares” in the definition of “Closing Price” were references to such Merger Common Shares), divided by (y) the value of one Exchange Property Unit (determined pursuant to Section 5.05(b)(i));
in each case, as of the effective date of such Reorganization Event (or, if such effective date is not a Trading Day, the immediately succeeding Trading Day).
“Merger Valuation Period” for any Reorganization Event means the five consecutive Trading-Day period immediately preceding, but excluding, the effective date for such Reorganization Event.
“Minimum Settlement Rate” has the meaning set forth in Section 5.01(a).
“Minimum Share Price” has the meaning set forth in Section 5.05(b)(iii).
“Notes” means the series of notes designated the 1.18% Remarketable Senior Notes due 2026 of the Corporation.
“Obligations” means, with respect to each Holder, the obligation of such Holder under such Holder’s Unit (including the Purchase Contract contained therein) and this Agreement to pay the
Purchase Price with respect to each Purchase Contract being settled, whether pursuant to an Early Settlement, a Fundamental Change Early Settlement or on the Purchase Contract Settlement Date.
“Officers’ Certificate” means a certificate signed by two Authorized Officers of the Corporation and delivered to the Purchase Contract Agent, the Collateral Agent, the Custodial Agent or
the Securities Intermediary, as applicable. Any Officers’ Certificate delivered with respect to compliance with a condition or covenant provided for in this Agreement (other than the Officers’ Certificate provided for in Section 10.05) shall
include the information set forth in Section 1.02 hereof.
“Opinion of Counsel” means a written opinion of counsel, who may be counsel to the Corporation (and who may be an employee of the Corporation) and which opinion shall be reasonably
satisfactory to the Purchase Contract Agent. An opinion of counsel may rely on certificates as to matters of fact.
“Optional Remarketing” means any Remarketing of the Notes that occurs during the Optional Remarketing Period by the Remarketing Agent(s) pursuant to the Remarketing Agreement.
“Optional Remarketing Date” means the date the Corporation prices the Notes offered in an Optional Remarketing.
“Optional Remarketing Period” has the meaning set forth in Section 5.02(a).
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“Outstanding” means, as of any date of determination, all Units evidenced by Certificates theretofore authenticated, executed and delivered under this Agreement, except:
(i) all Units, if a Termination Event has occurred;
(ii) Units evidenced by Certificates theretofore cancelled by the Purchase Contract Agent
or delivered to the Purchase Contract Agent for cancellation or deemed cancelled pursuant to the provisions of this Agreement; and
(iii) Units evidenced by Certificates in exchange for or in lieu of which other Certificates
have been authenticated, executed on behalf of the Holder and delivered pursuant to this Agreement, other than any such Certificate in respect of which there shall have been presented to the Purchase Contract Agent proof satisfactory to it that
such Certificate is held by a protected purchaser in whose hands the Units evidenced by such Certificate are valid obligations of the Corporation;
provided, however, that in determining whether the Holders of the requisite number of the Units have given any
request, demand, authorization, direction, notice, consent or waiver hereunder, Units owned by the Corporation or any Affiliate of the Corporation shall be disregarded and deemed not to be Outstanding Units, except that, in determining whether
the Purchase Contract Agent shall be authorized and protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Units that a Responsible Officer of the Purchase Contract Agent actually knows to be
so owned shall be so disregarded. Units so owned that have been pledged in good faith may be regarded as Outstanding Units if the pledgee establishes to the satisfaction of the Purchase Contract Agent the pledgee’s right so to act with respect
to such Units and that the pledgee is not the Corporation or any Affiliate of the Corporation. For the avoidance of doubt, a Purchase Contract shall be considered “Outstanding” if the Unit containing such Purchase Contract is Outstanding.
“Payment Date” means each March 15, June 15, September 15 and December 15 of each year, commencing on September 15, 2021.
“Permitted Investments” means any one of the following, in each case maturing on the Business Day following the date of acquisition:
(1) any evidence of indebtedness with an original maturity of 365 days or less issued, or directly and fully
guaranteed or insured, by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support of the timely payment thereof or such indebtedness
constitutes a general obligation of it);
(2) deposits, demand deposits, certificates of deposit or acceptances with an original maturity of 365 days or
less of any institution which is a member of the U.S. Federal Reserve System having combined capital and surplus and undivided profits of not less than $500 million at the time of deposit (and which may include the Collateral Agent);
(3) investments with an original maturity of 365 days or less of any Person that are fully and unconditionally
guaranteed by a bank referred to in clause (2) of this definition;
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(4) repurchase agreements and reverse repurchase agreements relating to marketable direct obligations issued or
unconditionally guaranteed by the United States of America or issued by any agency thereof and backed as to timely payment by the full faith and credit of the United States of America;
(5) investments in commercial paper, other than commercial paper issued by the Corporation or its affiliates,
of any corporation incorporated under the laws of the United States or any State thereof, which commercial paper has a rating at the time of purchase at least equal to “A-1” by Standard & Poor’s Ratings Services (“S&P”) or at least equal to “P-1” by Moody’s Investors Service, Inc. (“Moody’s”); and
(6) investments in money market funds (including, but not limited to, money market funds managed by the
Collateral Agent or an affiliate of the Collateral Agent) registered under the Investment Company Act of 1940, as amended, rated in the highest applicable rating category by S&P or Moody’s.
Obligations issued by the Purchase Contract Agent or any of its affiliates shall qualify as Permitted Investments if they otherwise fall under the categories described in
above. Notwithstanding the foregoing, Permitted Investments shall be limited to those instruments readily obtainable and routinely offered by the Purchase Contract Agent’s Global Corporate Trust Services.
“Person” means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint-stock Corporation, limited liability Corporation, trust,
unincorporated organization or government or any agency or political subdivision thereof or any other entity of whatever nature.
“Plan” means (i) an employee benefit plan that is subject to Title I of ERISA, (ii) a plan or individual retirement account that is subject to Section 4975 of the Code, (iii) any entity
whose underlying assets include the assets of any such employee benefit plan, plan or individual retirement account by reason of such employee benefit plan’s, plan’s or individual retirement account’s investment in such entity or (iv) any
governmental plan, nonelecting Church Plan (each defined under ERISA) or foreign plan that is not subject to the provisions of Title I of ERISA or Section 4975 of the Code but is subject to Similar Laws.
“Pledge” means the lien and security interest in the Collateral created by this Agreement.
“Pledge Indemnitees” has the meaning set forth in Section 15.08(b).
“Pledged Applicable Ownership Interests in Notes” means the Applicable Ownership Interests in Notes and security entitlements with respect thereto from time to time credited to the
Collateral Account and not then released from the Pledge.
“Pledged Applicable Ownership Interests in the Treasury Portfolio” means the Applicable Ownership Interests in the Treasury Portfolio (as specified in clause (i) of the definition of such
term) and security entitlements with respect thereto from time to time credited to the Collateral Account and not then released from the Pledge.
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“Pledged Treasury Securities” means Treasury Securities and security entitlements with respect thereto from time to time credited to the Collateral Account and not then released from the
Pledge and any Proceeds thereon.
“Predecessor Certificate” means a Predecessor Corporate Units Certificate or a Predecessor Treasury Units Certificate.
“Predecessor Corporate Units Certificate” of any particular Corporate Units Certificate means every previous Corporate Units Certificate evidencing all or a portion of the rights and
obligations of the Corporation and the Holder under the Corporate Units evidenced thereby; and, for the purposes of this definition, any Corporate Units Certificate authenticated and delivered under Section 3.10 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Corporate Units Certificate shall be deemed to evidence the same rights and obligations of the Corporation and the Holder as the mutilated, destroyed, lost or stolen Corporate Units Certificate.
“Predecessor Treasury Units Certificate” of any particular Treasury Units Certificate means every previous Treasury Units Certificate evidencing all or a portion of the rights and
obligations of the Corporation and the Holder under the Treasury Units evidenced thereby; and, for the purposes of this definition, any Treasury Units Certificate authenticated and delivered under Section 3.10 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Treasury Units Certificate shall be deemed to evidence the same rights and obligations of the Corporation and the Holder as the mutilated, destroyed, lost or stolen Treasury Units Certificate.
“Prevailing Exchange Rate” has the meaning set forth in Section 5.01(a).
“Principal Exchange” has the meaning set forth in Section 5.01(a).
“Priority Indebtedness of the Corporation” means the principal, premium, interest and any other payment in respect of (i) all of the Corporation’s current and future indebtedness for
borrowed or purchase money whether or not evidenced by notes, debentures, bonds or other similar written instruments; (ii) the Corporation’s obligations under synthetic leases, finance leases and capitalized leases; (iii) the Corporation’s
obligations for reimbursement under letters of credit, surety bonds, banker’s acceptances, security purchase facilities or similar facilities issued for its account; (iv) any of the Corporation’s other indebtedness or obligations with respect to
derivative contracts, including commodity contracts, interest rate, commodity and currency swap agreements, forward contracts and other similar agreements or arrangements; and (v) all indebtedness of others of the kinds described in the preceding
categories which the Corporation has assumed, endorsed or guaranteed or with respect to which it has a similar contingent obligation; provided, however, that “Priority Indebtedness” will not include trade accounts payable, accrued
liabilities arising in the ordinary course of business (to the extent not listed above), indebtedness to the Corporation’s subsidiaries, and any other indebtedness that effectively by its terms, or expressly provides that it, ranks on parity with,
or junior to, the Corporation’s obligations with respect to Contract Adjustment Payments.
“Pro Rata” or “pro rata” shall mean, unless otherwise specified, pro rata to each Holder according to the aggregate number of the Units held by such Holder in relation to the
aggregate number of all Units Outstanding.
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“Proceeds” has the meaning ascribed thereto in the UCC and includes, without limitation, all interest, dividends, cash, instruments, securities, financial assets and other property received,
receivable or otherwise distributed upon the sale (including, without limitation, any Remarketing), exchange, collection or disposition of any financial assets from time to time credited to the Collateral Account.
“Purchase Contract” means, with respect to any Unit, the contract forming a part of such Unit and obligating the Corporation to (i) sell, and the Holder of such Unit to purchase (with
settlement on the Purchase Contract Settlement Date, unless a Termination Event, Early Settlement Date or Fundamental Change Early Settlement has previously occurred), a number of Common Shares equal to the applicable Settlement Rate, and (ii) pay
to the Holder thereof Contract Adjustment Payments, subject to the Corporation’s right to defer Contract Adjustment Payments pursuant to Section 5.12, in each case, on the terms and subject to the conditions set forth in Article 5. Unless the
context otherwise requires, any reference herein (x) to a Purchase Contract shall be deemed to refer to a Purchase Contract with a stated amount equal to the Stated Amount, or (y) to a particular number of Purchase Contracts shall be deemed to
refer to Purchase Contract(s) with a stated amount equal to the product of such number and the Stated Amount.
“Purchase Contract Agent” means the Person named as the “Purchase Contract Agent” in the first paragraph of this Agreement, acting in its capacity as such hereunder, until a successor
Purchase Contract Agent shall have become such pursuant to the applicable provisions of this Agreement, and thereafter “Purchase Contract Agent” shall mean such Person or any subsequent successor who is appointed pursuant to this Agreement. For the
avoidance of doubt, the Purchase Contract Agent shall also serve as the paying agent, Securities Registrar, and transfer agent as required hereunder.
“Purchase Contract Settlement Date” means June 15, 2024 (or if such day is not a Business Day, the following Business Day).
“Purchase Contract Settlement Fund” has the meaning set forth in Section 5.04.
“Purchase Price” has the meaning set forth in Section 5.01(a).
“Purchased Shares” has the meaning set forth in Section 5.05(a)(vi).
“Put Price” has the meaning set forth in the Supplemental Indenture.
“Put Right” has the meaning set forth in the Supplemental Indenture.
“Quotation Agent” means any primary United States government securities dealer in New York City selected by the Corporation.
“ranking junior to the CAP Obligations” means, with respect to any obligation of the Corporation, that such obligation (a) ranks junior to, and not equally with or prior to, the CAP
Obligations (or any other obligations of the Corporation ranking on a parity with the CAP Obligations) in right of payment upon the happening of any event of the kind specified in the first sentence of the second paragraph of Section 5.11(d) or (b)
is specifically designated as ranking junior to the CAP Obligations by express provision in the instrument creating or evidencing such obligation. The securing of any obligations of the Corporation, otherwise ranking junior to the CAP Obligations,
shall be deemed to prevent such obligations from constituting obligations ranking junior to the CAP Obligations.
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“ranking on a parity with the CAP Obligations” means, with respect to any obligation of the Corporation, that such obligation (a) ranks equally with and not prior to the CAP Obligations in
right of payment upon the happening of any event of the kind specified in the first sentence of the second paragraph of Section 5.11(d) or (b) is specifically designated as ranking on a parity with the CAP Obligations by express provision in the
instrument creating or evidencing such obligation. The securing of any obligations of the Corporation, otherwise ranking on a parity with the CAP Obligations, shall not be deemed to prevent such obligations from constituting obligations ranking on
a parity with the CAP Obligations.
“Record Date” for any distribution and any Contract Adjustment Payment and any deferred Contract Adjustment Payment (and any Compounded Contract Adjustment Payment thereon) payable on any
Contract Adjustment Payment Date means the first day of the calendar month in which the relevant distribution date or Contract Adjustment Payment Date falls, whether or not a Business Day.
“Reference Dividend” has the meaning set forth in Section 5.05(a)(v).
“Reference Price” has the meaning set forth in Section 5.01(a).
“Relevant Purchase Price” has the meaning set forth in Section 5.01(b).
“Remarketing” means any remarketing of the Notes pursuant to the Remarketing Agreement.
“Remarketing Agent(s)” has the meaning set forth in the Supplemental Indenture.
“Remarketing Agreement” means the Remarketing Agreement, in substantially the form set forth in Exhibit P hereof, to be entered into among the Corporation, the Purchase Contract Agent and
the Remarketing Agent(s), as the same may be amended, amended and restated, supplemented or otherwise modified or replaced from time to time.
“Remarketing Date” means each of the Business Days selected for Remarketing in an Optional Remarketing Period or the Final Remarketing Period.
“Remarketing Fee” means, in the event of a Successful Remarketing, a remarketing fee paid to the Remarketing Agent(s) to be agreed upon in writing by the Corporation and the Remarketing
Agent(s) prior to any such Remarketing pursuant to the relevant Remarketing Agreement.
“Remarketing Price” means (i) in the case of an Optional Remarketing, 100% of the aggregate of the Treasury Portfolio Purchase Price and the Separate Notes Purchase Price; and (ii) in the
case of a Final Remarketing, 100% of the aggregate principal amount of Notes underlying the Pledged Applicable Ownership Interests in Notes (other than any such Notes that are not remarketed in such Final Remarketing, pursuant to Section 5.03) and
Separate Notes to be remarketed.
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“Remarketing Price Per Note” means, with respect to any Optional Remarketing, for each $1,000 principal amount of Notes, an amount in cash equal to the quotient of (i) the Treasury Portfolio
Purchase Price divided by (ii) (a) the aggregate principal amount of Notes underlying the Pledged Applicable Ownership Interests in Notes that are held as components of Corporate Units and remarketed in such Optional Remarketing divided by (b)
$1,000.
“Remarketing Settlement Date” means (i) in the case of a Successful Optional Remarketing, (x) if the remarketed Notes are priced before 4:30 p.m. New York City time on the Optional
Remarketing Date for such Successful Optional Remarketing, the second Business Day immediately following such Optional Remarketing Date and (y) otherwise, the third Business Day following the relevant
Optional Remarketing Date, and (ii) in the case of a Final Remarketing, the Purchase Contract Settlement Date.
“Reorganization Event” means:
(i) any consolidation, merger, arrangement or amalgamation with or into any other Person, or
of any other Person with or into the Corporation, or any other similar transaction or series of related transactions (other than a consolidation, merger, arrangement, amalgamation or similar transaction in which the Corporation is the continuing
corporation and in which the Common Shares outstanding immediately prior to the consolidation, merger, arrangement, amalgamation or similar transaction are not exchanged for cash, securities or other property of the Corporation or another
Person);
(ii) any sale, transfer, lease or conveyance to another Person of the property of the
Corporation as an entirety or substantially as an entirety, as a result of which the Common Shares are exchanged for cash, securities or other property;
(iii) any statutory exchange of the Common Shares with another corporation (other than in
connection with a merger, arrangement or acquisition); or
(iv) any liquidation, dissolution or termination of the Corporation (other than as a result
of or after the occurrence of a Termination Event).
“Reset Rate” means, in connection with a Remarketing, the rate per annum (as determined by the Remarketing Agent(s) in consultation with the Corporation pursuant to the Remarketing
Agreement) rounded to the nearest one thousandth (0.001) of one percent that the Notes shall bear.
“Responsible Officer” means, when used with respect to the Purchase Contract Agent, any officer of the Purchase Contract Agent assigned to the Corporate Trust Administration unit (or any
successor unit, department or division of the Purchase Contract Agent) of the Purchase Contract Agent located at the Corporate Trust Office of the Purchase Contract Agent who has direct responsibility for the administration of this Agreement and
also means, with respect to a particular corporate trust matter, any other officer, trust officer or person performing similar functions to whom such matter is referred because of his or her knowledge of and familiarity of the particular subject
and who shall have direct responsibility for this Agreement. The same definition applies equally to any Responsible Officer of the Collateral Agent, Custodial Agent and Securities Intermediary.
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“Rights” has the meaning set forth in Section 5.05(a)(x).
“Scheduled Trading Day” has the meaning set forth in Section 5.01(a).
“Securities Act” means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time, and the rules and regulations promulgated thereunder.
“Securities Intermediary” means the Person named as Securities Intermediary in the first paragraph of this Agreement, acting in its capacity as such hereunder, until a successor Securities
Intermediary shall have become such pursuant to the applicable provisions of this Agreement, and thereafter “Securities Intermediary” shall mean such successor or any subsequent successor.
“Security Register” and “Securities Registrar” have the respective meanings set forth in Section 3.05.
“SEDAR” means the System for Electronic Document Analysis and Retrieval.
“Separate Notes” means Notes that have been released from the Pledge pursuant to the terms hereof and therefore no longer underlie Corporate Units.
“Separate Notes Account” has the meaning set forth in Section 5.02(a)(vi).
“Separate Notes Purchase Price” means, for any Optional Remarketing, the amount in cash equal to the product of (i) the Remarketing Price Per Note and (ii) (a) the aggregate principal amount
of Separate Notes remarketed in such Optional Remarketing divided by (b) $1,000.
“Settlement Date” means, as applicable, (i) the Purchase Contract Settlement Date, (ii) the second Business Day following the Early Settlement Date or (iii) the Fundamental Change Early
Settlement Date.
“Settlement Rate” has the meaning set forth in Section 5.01(a).
“Share Price” has the meaning set forth in Section 5.05(b)(iii).
“Similar Laws” means the provisions under any federal, state, local, non-U.S. laws or regulations that are similar to Title I of ERISA or Section 4975 of the Code.
“Solicitation Agent” has the meaning set forth in Section 4.03(e).
“Spin-Off” has the meaning set forth in Section 5.05(a)(iv).
“Stated Amount” means $50.00.
“Successful Final Remarketing” has the meaning set forth in Section 5.02(b)(v).
“Successful Optional Remarketing” has the meaning set forth in Section 5.02(a)(vi).
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“Successful Remarketing” means, as applicable, a Successful Optional Remarketing or a Successful Final Remarketing.
“Supplemental Indenture” means the First Supplemental Indenture, dated as of June 23, 2021, pursuant to which the Notes are issued, as it may be further amended and/or supplemented from time
to time.
“Term Sheet” means the pricing term sheet related to the offering of the Units, as filed with the Securities and Exchange Commission as a “free writing prospectus” and with applicable
Canadian Securities Regulators as “marketing materials” on June 17, 2021.
“Termination Date” means the date, if any, on which a Termination Event occurs.
“Termination Event” means the occurrence of any of the following events with respect to the Corporation:
(i) at any time on or prior to the Purchase Contract Settlement Date, a decree or order by
a court having jurisdiction over the Corporation is entered (i) adjudicating the Corporation as bankrupt or insolvent, (ii) approving as properly filed a petition, application, plan or motion seeking reorganization, arrangement, winding-up,
adjustment or composition of or in respect of the Corporation under the Bankruptcy Code, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada) or any other similar Federal, state or provincial law (including the arrangement provisions of any corporate
statute), or (iii) commencing any Insolvency Proceeding in respect of the Corporation, provided that such decree or order shall have been entered more than 60 days prior to the Purchase Contract Settlement Date and shall have continued
undischarged and unstayed and not overturned or set aside for a period of 90 consecutive days;
(ii) at any time on or prior to the Purchase Contract Settlement Date, a decree or order of
a court having jurisdiction over the Corporation is entered for the appointment of a receiver, receiver and manager, monitor, liquidator, trustee, assignee, sale agent, sequestrator or other similar official in bankruptcy or insolvency of the
Corporation or of all or any substantial part of the Corporation’s property, or for the winding up or liquidation of the Corporation’s affairs, provided that such decree or order shall have been entered more than 90 days prior to the Purchase
Contract Settlement Date and shall have continued undischarged and unstayed and not overturned or set aside for a period of 60 consecutive days; or
(iii) at any time on or prior to the Purchase Contract Settlement Date, the Corporation (i)
institutes proceedings to be adjudicated a bankrupt or insolvent, (ii) consents to the institution of a bankruptcy or Insolvency Proceeding in respect of it, (iii) files a petition, motion or application or answer or consent seeking
reorganization, making a voluntary assignment in bankruptcy or otherwise commencing any Insolvency Proceeding or voluntary insolvency or restructuring proceeding under the Bankruptcy Code or any other similar applicable Federal or state law, or
shall consent to the filing of any such petition, (iv) consents to the appointment of a receiver, receiver and manager, monitor, liquidator, trustee, assignee, sale agent, sequestrator or other similar official in respect of the Corporation or
any substantial part of its property, (v) makes an assignment for the benefit of creditors, or (vi) admits in writing its inability to pay its debts generally as they become due.
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“Threshold Appreciation Price” means $18.00, subject to adjustment as set forth in Section 5.05(a)(vii)(1).
“TIA” means the Trust Indenture Act of 1939, as amended from time to time, or any successor legislation.
“TRADES” means the Treasury/Reserve Automated Debt Entry System maintained by the Federal Reserve Bank of New York pursuant to the TRADES Regulations.
“TRADES Regulations” means the regulations of the United States Department of the Treasury, published at 31 C.F.R. Part 357, as amended from time to time. Unless otherwise defined herein,
all terms defined in the TRADES Regulations are used herein as therein defined.
“Trading Day” has the meaning set forth in Section 5.01(a).
“Transaction Documents” means this Agreement, the Remarketing Agreement, the Units, the Notes and the Indenture, in each case as amended or supplemented from time to time.
“Transfer” means (i) in the case of certificated securities in registered form, delivery as provided in Section 8-301(a) of the UCC, indorsed to the transferee or in blank by an effective
indorsement; (ii) in the case of Treasury Securities, registration of the transferee as the owner of such Treasury Securities on TRADES; (iii) in the case of security entitlements, including, without limitation, security entitlements with respect
to Treasury Securities or Notes, a securities intermediary indicating by book entry that such security entitlement has been credited to the transferee’s securities account; and (iv) in the case of Notes in registered form, in the manner
contemplated by Section 2.4 of the Supplemental Indenture and Section 2.5 of the Base Indenture.
“Treasury Portfolio” means:
(i) U.S. Treasury securities (or principal or interest strips thereof) that mature on or
prior to the Purchase Contract Settlement Date in an aggregate amount at maturity equal to the principal amount of the Notes underlying Applicable Ownership Interests in Notes included in the Corporate Units on the Optional Remarketing Date; and
(ii) U.S. Treasury securities (or principal or interest strips thereof) that mature on or
prior to the Purchase Contract Settlement Date in an aggregate amount at maturity equal to the aggregate Interest Payment (assuming no reset of the interest rate on the Notes) that would have been paid to the Holders of the Corporate Units on the
Purchase Contract Settlement Date on the principal amount of the Notes underlying the Applicable Ownership Interests in Notes included in the Corporate Units on the Optional Remarketing Date;
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provided that if on the Optional Remarketing Date U.S. Treasury securities (or principal or interest strips thereof) that
are to be included in the Treasury Portfolio have a yield that is less than zero, “Treasury Portfolio” means Cash in an amount equal to (i) the principal amount of the Notes underlying Applicable Ownership Interests in Notes included in the
Corporate Units on the Optional Remarketing Date and (ii) the aggregate Interest Payment (assuming no reset of the interest rate on the Notes) that would have been paid to the Holders of the Corporate Units on the Purchase Contract Settlement
Date on the principal amount of the Notes underlying the Applicable Ownership Interests in Notes included in the Corporate Units on the Optional Remarketing Date.
“Treasury Portfolio Purchase Price” means the lowest aggregate ask-side price quoted by a primary U.S. government securities dealer in New York City to the Quotation Agent between 9:00 a.m.
and 4:00 p.m., New York City time, on the Optional Remarketing Date for the purchase of the Treasury Portfolio for settlement on the relevant Remarketing Settlement Date; provided that if the Treasury Portfolio consists of cash, “Treasury Portfolio
Purchase Price” means the amount thereof.
“Treasury Securities” means zero-coupon U.S. Treasury securities that mature on or prior to June 15, 2024 (including, without limitation, the U.S. Treasury securities with CUSIP No.
9128207H4).
“Treasury Unit” means, following the substitution of Treasury Securities for Pledged Applicable Ownership Interests in Notes as Collateral to secure a Holder’s Obligations under the Purchase
Contract, the collective rights and obligations of a Holder of a Treasury Units Certificate in respect of such Treasury Securities, subject to the Pledge thereof, and the related Purchase Contract.
“Treasury Units Certificate” means a certificate evidencing the rights and obligations of a Holder in respect of the number of Treasury Units specified on such certificate.
“Trigger Event” has the meaning set forth in Section 5.05(a)(iv).
“UCC” means the Uniform Commercial Code as in effect in the State of New York from time to time.
“Unit” means a Corporate Unit or a Treasury Unit, as the case may be.
“U.S. Indenture Trustee” means The Bank of New York Mellon Trust Company, N.A., as U.S. trustee.
“U.S. Prospectus” means the prospectus relating to the shares or any securities deliverable in connection with an Early Settlement pursuant to Section 5.08, if so required as contemplated by
Section 5.08, or a Fundamental Change Early Settlement of Purchase Contracts pursuant to Section 5.05(b)(ii), if so required as contemplated by Section 5.05(b)(ii), in the form in which first filed, or transmitted for filing, with the Securities
and Exchange Commission after the effective date of the Registration Statement pursuant to Rule 424(b) under the Securities Act, including the documents incorporated by reference therein as of the date of such U.S. Prospectus.
“U.S. Registration Statement” means a registration statement under the Securities Act prepared by the Corporation covering, inter alia, the securities deliverable by the Corporation in
connection with an Early Settlement on the applicable Settlement Date under Section 5.08, if so required as contemplated by Section 5.08, or a Fundamental Change Early Settlement on the Fundamental Change Early Settlement Date under Section
5.05(b)(ii), if so required as contemplated by Section 5.05(b)(ii), including all exhibits thereto and the documents incorporated by reference in the prospectus contained in such registration statement, and any post-effective amendments thereto.
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“Vice President” means any vice president of the Corporation, whether or not designated by a number or a word or words added before or after the title “vice president.”
“VWAP” has the meaning set forth in Section 5.01(a).
Section 1.02. Compliance Certificates and Opinions. Upon any
written application or request by the Corporation to the Purchase Contract Agent to take any action in accordance with any provision of this Agreement, the Corporation shall furnish to the Purchase Contract Agent an Officers’ Certificate stating
that all conditions precedent, if any, provided for in this Agreement 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.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Agreement (other than the Officers’ Certificate provided for in Section 10.05) shall
include:
(i) a statement that each individual signing such certificate or opinion has read such
condition or covenant and the definitions herein relating thereto;
(ii) a statement that, in the opinion of each such individual, he or she has made such
examination or investigation as is necessary to enable such individual to express an informed opinion as to whether or not such condition or covenant has been complied with; and
(iii) a statement as to whether, in the opinion of each such individual, such condition or
covenant has been complied with.
Section 1.03. Form of Documents Delivered to Purchase Contract Agent. 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 Corporation 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 its 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 Corporation 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.
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Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Agreement, they may, but need
not, be consolidated and form one instrument.
Section 1.04. Acts of Holders; Record Dates. (a) Any request,
demand, authorization, direction, notice, consent, waiver or other action provided by this Agreement to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Purchase Contract Agent and, where it is hereby
expressly required, to the Corporation. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Agreement and (subject to
Section 7.01) conclusive in favor of the Purchase Contract Agent and the Corporation, 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
manner that the Purchase Contract Agent deems sufficient.
(c) The ownership of Units shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any
Unit shall bind every future Holder of the same Unit and the Holder of every Certificate evidencing such Unit 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 Purchase Contract Agent or the Corporation in reliance thereon, whether or not notation of such action is made upon such Certificate.
(e) The Corporation may set any date as a record date for the purpose of determining the Holders of Outstanding
Units entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Agreement to be given, made or taken by Holders. If any record date is set pursuant to this
paragraph, the Holders of the Outstanding Corporate Units and the Outstanding Treasury Units, as the case may be, on such record date, and no other Holders, shall be entitled to take the relevant action with respect to the Corporate Units or the
Treasury Units, as the case may be, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective
hereunder unless taken prior to or on the applicable Expiration Date by Holders of the requisite number of Outstanding Units on such record date. Nothing contained in this paragraph shall be construed to prevent the Corporation from setting a
new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and be of no effect), and
nothing contained in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite number of Outstanding Units on the date such action is taken. Promptly after any record date is set pursuant to this
paragraph, the Corporation, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Purchase Contract Agent in writing and to each Holder in the manner set
forth in Section 1.06.
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With respect to any record date set pursuant to this Section 1.04(e), the Corporation may designate any date as the “Expiration Date” and from time to time may change the Expiration Date to
any later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the Purchase Contract Agent in writing, and to each Holder in the manner set forth in Section 1.06, prior to or on
the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section, the Corporation shall be deemed to have initially designated the 180th day after such record date as the Expiration
Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date.
Section 1.05. Notices. All notices, requests, consents and other
communications provided for herein (including, without limitation, any modifications of, or waivers or consents under, this Agreement) shall be given or made in writing (including, without limitation, by facsimile or unsecured email, if, except
as provided in the following paragraph, promptly confirmed by telephone) mailed or delivered to the intended recipient at the “Address for Notices” specified below its name on the signature pages hereof or, as to any party, at such other address
as shall be designated by such party in a notice to the other parties. Except as otherwise provided in this Agreement, all such communications shall be deemed to have been duly given when transmitted by telecopier or other electronic methods or
personally delivered or mailed by first-class mail (registered or certified, return receipt requested), or overnight air courier guaranteeing next day delivery.
The Purchase Contract Agent, the Collateral Agent, the Custodial Agent and the Securities Intermediary (collectively, the “Agent”) shall have the right to accept and act upon instructions,
including funds transfer instructions (for the purposes of this Section, “Instructions”) given pursuant to this Agreement and delivered using Electronic Means; provided, however, that the Corporation shall provide to the Agent an incumbency
certificate listing authorized representatives and containing specimen signatures of such authorized representatives, which incumbency certificate shall be amended by the Corporation whenever a person is to be added or deleted from the listing. If
the Corporation elects to give the Agent Instructions using Electronic Means and the Agent in its discretion elects to act upon such Instructions, the Agent’s understanding of such Instructions shall be deemed controlling. The Corporation
understands and agrees that the Agent cannot determine the identity of the actual sender of such Instructions and that the Agent shall conclusively presume that directions that purport to have been sent by an authorized representative listed on the
incumbency certificate provided to the Agent have been sent by such authorized representative. The Corporation shall be responsible for ensuring that only authorized representatives transmit such Instructions to the Agent and that the Corporation
and all authorized representatives are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Corporation. The Agent shall not be liable for
any losses, costs or expenses arising directly or indirectly from the Agent’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Corporation
agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Agent, including without limitation the risk of the Agent acting on unauthorized Instructions, and the risk of interception and misuse by third
parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Agent and that there may be more secure methods of transmitting Instructions than the method(s) selected by
the Corporation; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and
(iv) to notify the Agent immediately upon learning of any compromise or unauthorized use of the security procedures.
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The Purchase Contract Agent (if other than the U.S. Indenture Trustee) shall send to the U.S. Indenture Trustee at the following addresses a copy of any notices in the form of Exhibits C, D, E, F,
H, J, M, N or O it sends or receives:
The Bank of New York Mellon Trust Company, N.A, as U.S. Indenture Trustee
4655 Salisbury Road, Suite 300
Jacksonville, Florida 32256
Attention: Corporate Trust Administration
Section 1.06. Notice to Holders; Waiver. Where this Agreement
provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at its 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. In any case where notice to Holders 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. Where this Agreement 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 Purchase Contract Agent, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the
approval of the Purchase Contract Agent shall constitute a sufficient notification for every purpose hereunder.
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. This Agreement shall be
binding upon and inure to the benefit of the respective successors and assigns of the Corporation, the Purchase Contract Agent, the Collateral Agent, the Custodial Agent and the Securities Intermediary, and the Holders from time to time of the
Units, by their acceptance of the same, shall be deemed to have agreed to be bound by the provisions hereof and to have ratified the agreements of, and the grant of the Pledge hereunder by, the Purchase Contract Agent.
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Section 1.09. Separability Clause. In case any provision in
this Agreement or in the Units shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof and thereof shall not in any way be affected or impaired thereby.
Section 1.10. Benefits of Agreement. Nothing contained in this
Agreement or in the Units, express or implied, shall give to any Person, other than (w) the parties hereto and their successors hereunder, (x) to the extent set forth in Section 5.11, the holders of Priority Indebtedness of the Corporation, (y)
to the extent provided hereby, the Holders, and (z) to the extent set forth in Section 3.06, the Beneficial Owners, any benefits or any legal or equitable right, remedy or claim under this Agreement. The Holders from time to time shall be
beneficiaries of this Agreement and shall be bound by all of the terms and conditions hereof and of the Units evidenced by their Certificates by their acceptance of delivery of such Certificates.
Section 1.11. Governing Law; Waiver of Jury Trial. THIS
AGREEMENT, THE UNITS AND THE PURCHASE CONTRACTS SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF). The Corporation, the Collateral Agent, the
Custodial Agent, the Securities Intermediary and the Purchase Contract Agent, hereby submit to the nonexclusive jurisdiction of the United States District Court for the Southern District of New York and of any New York state court sitting in New
York City for the purposes of all legal proceedings arising out of or relating to this Agreement or the transactions contemplated hereby. The Corporation, the Collateral Agent, the Custodial Agent, the Securities Intermediary and the Purchase
Contract Agent, irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum. Each of the Corporation, the Purchase Contract Agent, the Collateral Agent, the Custodial Agent and the Securities Intermediary irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. The Corporation irrevocably appoints CT Corporation as its agent
to receive service of process or other legal summons for purposes of any such suit, action or proceeding that may be instituted in any state or federal court in the City and County of New York.
Section 1.12. Legal Holidays. In any case where any Contract
Adjustment Payment Date shall not be a Business Day (notwithstanding any other provision of this Agreement or the Units), Contract Adjustment Payments, deferred Contract Adjustment Payments (including Compounded Contract Adjustment Payments
thereon), and other distributions shall not be paid on such date, but Contract Adjustment Payments, deferred Contract Adjustment Payments (including Compounded Contract Adjustment Payments thereon), and other distributions shall be paid on the
next succeeding Business Day with the same force and effect as if made on such Contract Adjustment Payment Date; provided that no interest shall accrue or
be payable by the Corporation or to any Holder in respect of such delay.
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In any case where the Purchase Contract Settlement Date or the Settlement Date relating to any Early Settlement Date or any Fundamental Change Early Settlement Date shall not be a Business Day
(notwithstanding any other provision of this Agreement or the Units), Purchase Contracts shall not be performed and Early Settlement and Fundamental Change Early Settlement shall not be effected on such date, but Purchase Contracts shall be
performed or Early Settlement or Fundamental Change Early Settlement shall be effected, as applicable, on the next succeeding Business Day with the same force and effect as if made on such Purchase Contract Settlement Date, the Settlement Date
relating to such Early Settlement Date or such Fundamental Change Early Settlement Date, as applicable;
Section 1.13. Counterparts. This Agreement may be executed in
any number of counterparts by the parties hereto, each of which, when so executed and delivered, shall be deemed an original, but all such counterparts shall together constitute one and the same instrument. The words “execution,” 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 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.
Section 1.14. Inspection of Agreement. Upon reasonable prior
written notice, a copy of this Agreement shall be available at all reasonable times during normal business hours at the Corporate Trust Office for inspection by any Holder or Beneficial Owner.
Section 1.15. Appointment of Financial Institution as Agent for the Corporation. The Corporation may appoint a financial institution (which may be the Collateral Agent) to act as its agent in performing its obligations and in accepting and enforcing performance of the obligations of the Purchase Contract
Agent and the Holders, under this Agreement and the Purchase Contracts, by giving notice of such appointment in the manner provided in Section 1.05 hereof. Any such appointment shall not relieve the Corporation in any way from its obligations
hereunder.
Section 1.16. No Waiver. No failure on the part of the
Corporation, the Purchase Contract Agent, the Collateral Agent, the Custodial Agent, the Securities Intermediary or any of their respective agents to exercise, and no course of dealing with respect to, and no delay in exercising, any right, power
or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by the Corporation, the Purchase Contract Agent, the Collateral Agent, the Custodial Agent, the Securities Intermediary or any of their respective
agents of any right, power or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies herein are cumulative and are not exclusive of any remedies provided by law.
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ARTICLE 2
CERTIFICATE FORMS
Section 2.01. Forms of Certificates Generally. The
Certificates shall be in substantially the form set forth in Exhibit A hereto (in the case of Corporate Units Certificates) or Exhibit B hereto (in the case of Treasury Units Certificates), with such letters, numbers or other marks of
identification or designation and such legends or endorsements printed, lithographed or engraved thereon as may be required by the rules of any securities exchange on which the Units are listed (if any) or any Depository therefor, or as may,
consistently herewith, be determined by the officers of the Corporation executing such Certificates, as evidenced by their execution of the Certificates.
The definitive Certificates shall be produced in any manner as determined by the officers of the Corporation executing the Units evidenced by such Certificates, consistent with the provisions of
this Agreement, as evidenced by their execution thereof.
Every Global Certificate authenticated, executed on behalf of the Holders and delivered hereunder shall bear a legend substantially in the form set forth in Exhibit A and Exhibit B for a Global
Certificate.
Section 2.02. Form of Purchase Contract Agent’s Certificate of Authentication. The form of the Purchase Contract Agent’s certificate of authentication of the Units shall be in substantially the form set forth on the form of the applicable Certificates.
ARTICLE 3
THE UNITS
Section 3.01. Amount; Form and Denominations. The aggregate
number of Units evidenced by Certificates authenticated, executed on behalf of the Holders and delivered hereunder will initially consist of 20,000,000 Units (as increased by the number of Units, if any, with respect to which the underwriters in
the Units offering exercise their over-allotment option), except for Certificates authenticated, executed and delivered upon registration of transfer of, in exchange for, or in lieu of, other Certificates
to the extent expressly permitted hereunder.
The Certificates shall be issuable only in registered form (which, for the avoidance of doubt, in the case of Global Certificates, shall be registered in the name of the Depository or its nominee)
and only in denominations of a single Corporate Unit or Treasury Unit and any integral multiple thereof.
Section 3.02. Rights and Obligations Evidenced by the Certificates.
Each Corporate Units Certificate shall evidence the number of Corporate Units specified therein, with each such Corporate Unit representing (1) the ownership by the Holder thereof of an Applicable Ownership Interest in Notes or an Applicable
Ownership Interest in the Treasury Portfolio, as the case may be, subject to the Pledge of such Applicable Ownership Interest in Notes or Applicable Ownership Interest in the Treasury Portfolio (as specified in clause (i) of the definition of
Applicable Ownership Interest in the Treasury Portfolio), as the case may be, by such Holder pursuant to this Agreement, and (2) the rights and obligations of the Holder thereof and the Corporation under one Purchase Contract.
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The Purchase Contract Agent is hereby authorized, as attorney-in-fact for, and on behalf of, the Holder of each Corporate Unit, to pledge, pursuant to Article 11, the Applicable Ownership Interest
in Notes, or the Applicable Ownership Interest in the Treasury Portfolio (as specified in clause (i) of the definition of Applicable Ownership Interest in the Treasury Portfolio) forming a part of such Corporate Unit, to the Collateral Agent for
the benefit of the Corporation, and to grant to the Collateral Agent, for the benefit of the Corporation, a security interest in the right, title and interest of such Holder in such Applicable Ownership Interest in Notes or Applicable Ownership
Interest in the Treasury Portfolio (as specified in clause (i) of the definition of Applicable Ownership Interest in the Treasury Portfolio) to secure the Obligations of the Holder under each Purchase Contract to purchase Common Shares. To effect
such Pledge and grant such security interest, the Purchase Contract Agent on behalf of the Holders of Corporate Units has, on the date hereof, delivered to the Securities Intermediary the Notes underlying the Applicable Ownership Interests in Notes
by delivering such Notes indorsed in blank to the Securities Intermediary to be held by the Securities Intermediary in accordance with the terms hereof.
Upon the formation of a Treasury Unit pursuant to Section 3.13, each Treasury Units Certificate shall evidence the number of Treasury Units specified therein, with each such Treasury Unit
representing (1) the ownership by the Holder thereof of a 1/20 or 5% undivided beneficial ownership interest in a Treasury Security with a principal amount at maturity equal to $1,000, subject to the Pledge of such interest by such Holder pursuant
to this Agreement, and (2) the rights and obligations of the Holder thereof and the Corporation under one Purchase Contract. The Purchase Contract Agent is hereby authorized, as attorney-in-fact for, and on behalf of, the Holder of each Treasury
Unit, to pledge, pursuant to Article 11, such Holder’s interest in the Treasury Security forming a part of such Treasury Unit to the Collateral Agent, for the benefit of the Corporation, and to grant to the Collateral Agent, for the benefit of the
Corporation, a security interest in the right, title and interest of such Holder in such Treasury Security to secure the Obligations of the Holder under each Purchase Contract to purchase Common Shares.
Prior to the purchase and delivery of Common Shares under each Purchase Contract, such Purchase Contract shall not entitle the Holder of a Unit to any of the rights of a holder of Common Shares,
including, without limitation, the right to vote or receive any dividends or other payments or distributions or to consent or to receive notice as a shareholder in respect of the meetings of shareholders or for the election of directors of the
Corporation or for any other matter, or any other rights whatsoever as a shareholder of the Corporation.
Section 3.03. Execution, Authentication, Delivery and Dating.
Subject to the provisions of Section 3.13 and Section 3.14, upon the execution and delivery of this Agreement, and at any time and from time to time thereafter, the Corporation may deliver Certificates executed by the Corporation to the Purchase
Contract Agent for authentication, execution on behalf of the Holders as attorney-in-fact for the Holders and delivery, together with its Issuer Order for authentication of such Certificates, and the Purchase Contract Agent in accordance with
such Issuer Order shall authenticate, execute on behalf of the Holders as their attorney-in-fact and deliver such Certificates.
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The Certificates shall be executed on behalf of the Corporation by an Authorized Officer of the Corporation. The signature of any such Authorized Officer on the Certificates may be manual or
facsimile.
Certificates bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Corporation shall bind the Corporation, notwithstanding that such individuals
or any of them have ceased to hold such offices prior to the authentication and delivery of such Certificates or did not hold such offices at the date of such Certificates.
No Purchase Contract evidenced by a Certificate shall be valid until such Certificate has been executed on behalf of the Holder by the manual, electronic or facsimile signature of an authorized
signatory of the Purchase Contract Agent, as such Holder’s attorney-in-fact. Such signature by an authorized signatory of the Purchase Contract Agent shall be conclusive evidence that the Holder of such Certificate has entered into the Purchase
Contracts evidenced by such Certificate.
Each Certificate shall be dated the date of its authentication.
No Certificate shall be entitled to any benefit under this Agreement or be valid or obligatory for any purpose unless there appears on such Certificate a certificate of authentication substantially
in the form provided for herein executed by an authorized signatory of the Purchase Contract Agent by manual, electronic or facsimile signature, and such certificate of authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered hereunder.
Section 3.04. Temporary Certificates. Pending the preparation
of definitive Certificates, the Corporation may execute and deliver to the Purchase Contract Agent, and upon receipt of an Issuer Order for authentication, the Purchase Contract Agent shall authenticate, execute on behalf of the Holders as their
attorney-in-fact, and deliver, in lieu of such definitive Certificates, temporary Certificates which are in substantially the form set forth in Exhibit A or Exhibit B hereto, as the case may be, with such letters, numbers or other marks of
identification or designation and such legends or endorsements printed, lithographed or engraved thereon as may be required by the rules of any securities exchange on which the Corporate Units or Treasury Units, as the case may be, are listed (if
any), or as may, consistently herewith, be determined by the officers of the Corporation executing such Certificates, as evidenced by their execution of the Certificates.
If temporary Certificates are issued, the Corporation will cause definitive Certificates to be prepared without unreasonable delay. After the preparation of definitive Certificates, the temporary
Certificates shall be exchangeable for definitive Certificates upon surrender of the temporary Certificates at the Corporate Trust Office, at the expense of the Corporation and without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Certificates, the Corporation shall execute and deliver to the Purchase Contract Agent, and upon receipt of an Issuer Order for authentication, the Purchase Contract Agent shall authenticate, execute on behalf of the Holder as
their attorney-in-fact, and deliver in exchange therefor, one or more definitive Certificates of like tenor and denominations and evidencing a like number of Units as the temporary Certificate or Certificates so surrendered. Until so exchanged,
the temporary Certificates shall in all respects evidence the same benefits and the same obligations with respect to the Units evidenced thereby as definitive Certificates.
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Section 3.05. Registration; Registration of Transfer and Exchange.
The Purchase Contract Agent shall keep at the Corporate Trust Office, a register (the “Security Register”) in which, subject to such reasonable regulations
as it may prescribe, the Purchase Contract Agent shall provide for the registration of Certificates and of transfers of Certificates (the Purchase Contract Agent, in such capacity, the “Security
Registrar”). The Security Registrar shall record separately the registration and transfer of the Certificates evidencing Corporate Units and Treasury Units.
Upon surrender for registration of transfer of any Certificate at the Corporate Trust Office, the Corporation shall execute and deliver to the Purchase Contract Agent in its capacity as transfer
agent, and upon receipt of an Issuer Order for authentication, the Purchase Contract Agent shall authenticate, execute on behalf of the designated transferee or transferees, and deliver, in the name of the designated transferee or transferees, one
or more new Certificates of any authorized denominations, of like tenor, and evidencing a like number of Corporate Units or Treasury Units, as the case may be.
At the option of the Holder and upon written notice to the Corporation and the Purchase Contract Agent, Certificates may be exchanged for other Certificates, of any authorized denominations and
evidencing a like number of Corporate Units or Treasury Units, as the case may be, upon surrender of the Certificates to be exchanged at the Corporate Trust Office. Whenever any Certificates are so surrendered for exchange, the Corporation shall
execute and deliver to the Purchase Contract Agent, and upon receipt of an Issuer Order for authentication, the Purchase Contract Agent shall authenticate, execute on behalf of the Holder as its attorney-in-fact, and deliver to the Holder the
Certificates which the Holder making the exchange is entitled to receive.
All Certificates issued upon any registration of transfer or exchange of a Certificate shall evidence the ownership of the same number of Corporate Units or Treasury Units, as the case may be, and
be entitled to the same benefits and subject to the same obligations under this Agreement as the Corporate Units or Treasury Units, as the case may be, evidenced by the Certificate surrendered upon such registration of transfer or exchange.
Every Certificate presented or surrendered for registration of transfer or exchange shall if so required by the Purchase Contract Agent be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Corporation and the Purchase Contract Agent duly executed by the Holder thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of a Certificate, but the Corporation and the Purchase Contract Agent may require payment from the Holder 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 Certificates, other than any exchanges not involving any transfer to a person other than the Holder.
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Notwithstanding the foregoing, the Corporation shall not be obligated to execute and deliver to the Purchase Contract Agent, and the Purchase Contract Agent shall not be obligated to authenticate,
execute on behalf of the Holder as its attorney-in-fact and deliver any Certificate in exchange for any other Certificate presented or surrendered for registration of transfer or for exchange on or after any Early Settlement Date or any date on
which the Fundamental Change Early Settlement Right is exercised with respect to such Certificate, any Termination Date or the Business Day immediately preceding the Purchase Contract Settlement Date. In lieu of delivery of a new Certificate, upon
satisfaction of the applicable conditions specified above in this Section and receipt of appropriate registration or transfer instructions from such Holder, the Purchase Contract Agent shall:
(i) if the Purchase Contract Settlement Date or an Early Settlement Date or a Fundamental
Change Early Settlement Date with respect to such other Certificate (or portion thereof) has occurred, deliver the Common Shares issuable in respect of the Purchase Contracts forming a part of the Units evidenced by such other Certificate (or
portion thereof) on the applicable Settlement Date; and
(ii) if a Termination Event, Early Settlement, or Fundamental Change Early Settlement shall
have occurred prior to the Purchase Contract Settlement Date, or a Cash Settlement shall have occurred, transfer the Notes, the Treasury Securities, or the Applicable Ownership Interests in the Treasury Portfolio, as the case may be, underlying
such Certificate, in each case subject to the applicable conditions and in accordance with the applicable provisions of Section 3.15 and Article 5.
The Purchase Contract Agent shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Agreement or
under applicable law with respect to any transfer of any interest in any Certificate (including any transfers between or among Beneficial Owners of interests in any Global Certificate) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Agreement, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Section 3.06. Book-Entry Interests. The Certificates will be
initially issued in the form of one or more fully registered Global Certificates, to be delivered to the Depository or its custodian by, or on behalf of, the Corporation. The Corporation hereby designates DTC as the initial Depository. The
Corporation has entered into a letter of representations with DTC in the form provided by DTC and the Purchase Contract Agent in each of its capacities is hereby authorized to act in accordance with such letter and Applicable Procedures. Such
Global Certificates shall initially be registered on the Security Register in the name of Cede & Co. (or its successor), the nominee of the Depository, and no Beneficial Owner will receive a definitive Certificate representing such Beneficial
Owner’s interest in such Global Certificate, except as provided in Section 3.09. Following the issuance of such Global Certificates and unless and until definitive, and fully registered Certificates have been issued to Beneficial Owners pursuant
to Section 3.09:
(i) the provisions of this Section 3.06 shall be in full force and effect;
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(ii) the Corporation shall be entitled to deal with the Depository for all purposes of this
Agreement (including, without limitation, making Contract Adjustment Payments, providing notices and receiving approvals, votes or consents hereunder) as the Holder of the Units and the sole holder of the Global Certificates and shall have no
obligation to the Beneficial Owners; provided that a Beneficial Owner may directly enforce against the Corporation, without any consent,
proxy, waiver or involvement of the Depository of any kind, such Beneficial Owner’s right to receive a definitive Certificate representing the Units beneficially owned by such Beneficial Owner, as set forth in Section 3.09;
(iii) to the extent that the provisions of this Section 3.06 conflict with any other
provisions of this Agreement, the provisions of this Section 3.06 shall control; and
(iv) except as set forth in the proviso of clause (ii) of this Section 3.06, the rights of the
Beneficial Owners shall be exercised only through the Depository and shall be limited to those established by law and agreements between such Beneficial Owners and the Depository or the Depository Participants.
The Depository will make book-entry transfers among Depository Participants and receive and transmit Contract Adjustment Payments to such Depository Participants. Transfers of securities evidenced
by Global Certificates shall be made through the facilities of the Depository, and any cancellation of, or increase or decrease in the number of, such securities (including the creation of Treasury Units and the recreation of Corporate Units
pursuant to Section 3.13 and Section 3.14 respectively) shall be accomplished by the Collateral Agent making appropriate annotations on the Schedule of Increases and Decreases set forth in such Global Certificate. Neither the Purchase Contract
Agent nor any other Agent shall have any responsibility for any actions taken or not taken by the Depository.
Section 3.07. Notices to Holders. Whenever a notice or other
communication to the Holders is required to be given under this Agreement, the Corporation or a solicitation agent appointed by the Corporation shall give such notices and communications to the Holders and, with respect to any Units registered in
the name of the Depository or the nominee of the Depository, the Corporation or such solicitation agent shall, except as set forth herein, have no obligations to the Beneficial Owners.
Section 3.08. Appointment of Successor Depository. If the
Depository elects to discontinue its services as securities depository with respect to the Units, the Corporation may, in its sole discretion, appoint a successor Depository with respect to the Units, as long as such successor Depository
constitutes a “clearing agency” registered under Section 17A of the Exchange Act when the Depository is required to be so registered to act as the Depository.
Section 3.09. Definitive Certificates.
If:
(i) the Depository notifies the Corporation that it is unwilling or unable to continue its
services as securities depository with respect to the Units and no successor Depository has been appointed pursuant to Section 3.08 within 90 days after the Corporation’s receipt of such notice;
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(ii) the Depository ceases to be a “clearing agency” registered under Section 17A of the
Exchange Act when the Depository is required to be so registered to act as the Depository and the Corporation receives notice of such cessation, and no successor Depository has been appointed pursuant to Section 3.08 within 90 days after the
Corporation’s receipt of such notice or the Corporation’s becoming aware of such cessation; or
(iii) any Event of Default with respect to the Notes, or any event that after notice or lapse
of time would constitute an Event of Default with respect to the Notes, has occurred and is continuing, or the Corporation has failed to perform any of its obligations under this Agreement, the Units or the Purchase Contracts, and any Beneficial
Owner requests that its beneficial interest be exchanged for a definitive Certificate;
then (x) definitive Certificates shall be prepared by the Corporation with respect to such Units and delivered to the Purchase Contract Agent, together with an Issuer Order for authentication and (y) upon surrender
of the Global Certificates representing the Units by the Depository, accompanied by registration instructions, the Corporation shall cause definitive Certificates to be delivered to Beneficial Owners in accordance with instructions provided by the
Depository; provided that in the case of clause (iii) only the beneficial interests of the Beneficial Owners so requesting shall be exchanged for definitive Certificates, and the aggregate number of Units
represented by the Global Certificate will be reduced accordingly, in accordance with Applicable Procedures and standing arrangements between the Purchase Contract Agent and the Depository. The Corporation and the Purchase Contract Agent shall not
be liable for any delay in delivery of such instructions and may conclusively rely on and shall be authorized and protected in relying on, such instructions. Each definitive Certificate so delivered shall evidence Units of the same kind and tenor
as the Global Certificate (or beneficial interests in a Global Certificate) so surrendered in respect thereof.
Section 3.10. Mutilated, Destroyed, Lost and Stolen Certificates.
If any mutilated Certificate is surrendered to the Purchase Contract Agent or its agent at the Corporate Trust Office, the Corporation shall execute and deliver to the Purchase Contract Agent, and upon receipt of an Issuer Order for
authentication, the Purchase Contract Agent shall authenticate, execute on behalf of the Holder as its attorney-in-fact, and deliver to the Holder in exchange therefor, a new Certificate, evidencing the same number of Corporate Units or Treasury
Units, as the case may be, and bearing a Certificate number not contemporaneously outstanding.
If there shall be delivered to the Corporation and the Purchase Contract Agent (i) evidence to their satisfaction of the destruction, loss or theft of any Certificate, and (ii) such indemnity
and/or security as may be required by either of them to hold each of them and any agent of any of them harmless, then, in the absence of notice to the Corporation or the Purchase Contract Agent that such Certificate has been acquired by a protected
purchaser, the Corporation shall execute and deliver to the Purchase Contract Agent, and upon receipt of an Issuer Order for authentication, the Purchase Contract Agent shall authenticate, execute on behalf of the Holder as its attorney-in-fact,
and deliver to the Holder, in lieu of any such destroyed, lost or stolen Certificate, a new Certificate, evidencing the same number of Corporate Units or Treasury Units, as the case may be, and bearing a Certificate number not contemporaneously
outstanding.
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Notwithstanding the foregoing, the Corporation shall not be obligated to execute and deliver to the Purchase Contract Agent, and the Purchase Contract Agent shall not be obligated to authenticate,
execute on behalf of the Holder as its attorney-in-fact, and deliver to the Holder, with respect to such mutilated, destroyed, lost or stolen Certificate a new Certificate on or after the Business Day immediately preceding the Purchase Contract
Settlement Date or the Termination Date. In lieu of delivery of a new Certificate, upon satisfaction of the applicable conditions specified above in this Section and receipt of appropriate registration or transfer instructions from such Holder,
the Purchase Contract Agent shall:
(i) if the Purchase Contract Settlement Date with respect to such lost, stolen, destroyed
or mutilated Certificate has occurred, deliver the Common Shares issuable in respect of the Purchase Contracts forming a part of the Units evidenced by such Certificate; and
(ii) if a Termination Event with respect to such mutilated, destroyed, lost or stolen
Certificate shall have occurred prior to the Purchase Contract Settlement Date, transfer the Notes, the Treasury Securities or the Applicable Ownership Interests in the Treasury Portfolio, as the case may be, underlying such Certificate, subject
to the applicable conditions and in accordance with the applicable provisions of Section 3.15 and Article 5.
Upon the issuance of any new Certificate under this Section, the Corporation and the Purchase Contract Agent may require the payment by the Holder of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other fees and expenses (including, without limitation, the fees and expenses of the Purchase Contract Agent) connected therewith.
Every new Certificate issued pursuant to this Section in lieu of any destroyed, lost or stolen Certificate shall constitute an original additional contractual obligation of the Corporation and of
the Holder in respect of the Units evidenced thereby, whether or not the destroyed, lost or stolen Certificate (and the Units evidenced thereby) shall be at any time enforceable by anyone, and shall be entitled to all the benefits and be subject to
all the obligations of this Agreement equally and proportionately with any and all other Certificates delivered hereunder.
The provisions of this Section 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 Certificates.
Section 3.11. Persons Deemed Owners. Prior to due presentment
of a Certificate for registration of transfer, the Corporation and the Purchase Contract Agent, and any agent of the Corporation or the Purchase Contract Agent, may treat the Person in whose name such Certificate is registered as the owner of the
Units evidenced thereby for purposes of (subject to any applicable record date) any payment or distribution with respect to the Notes underlying the Applicable Ownership Interests in Notes, on the Applicable Ownership Interests in the Treasury
Portfolio (as specified in clause (ii) of the definition of Applicable Ownership Interests in the Treasury Portfolio) or payment of Contract Adjustment Payments and performance of the Purchase Contracts and for all other purposes whatsoever in
connection with such Units (subject to the proviso contained in clause (ii) of Section 3.06), whether or not such payment, distribution, or
performance shall be overdue and notwithstanding any notice to the contrary, and neither the Corporation nor the Purchase Contract Agent, nor any agent of the Corporation or the Purchase Contract Agent, shall be affected by notice to the
contrary.
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None of the Purchase Contract Agent or the Securities Registrar shall have any responsibility or obligation to any Beneficial Owner in Units represented by a Global Certificate or other Person with
respect to the accuracy of the records of the Depository or its nominee or of any agent member, with respect to any ownership interest in the Units or with respect to the delivery to any agent member, Beneficial Owner or other Person (other than
the Depository) of any notice or the payment of any amount, under or with respect to such Units. All notices and communications to be given to the Holders and all payments to be made to Holders pursuant to the Units and this Agreement shall be
given or made only to or upon the order of the registered holders (which shall be the Depository or its nominee in the case of a Global Certificate). The rights of Beneficial Owners in the Units underlying a Global Certificate shall be exercised
only through the Depository subject to its Applicable Procedures. The Purchase Contract Agent and the Securities Registrar shall be entitled to rely and shall be fully protected in relying upon information furnished by the Depository with respect
to its members, participants and any Beneficial Owners. The Purchase Contract Agent and the Securities Registrar shall be entitled to deal with the Depository, and any nominee thereof, that is the registered holder of any Global Certificate for
all purposes of this Agreement relating to such Global Certificate (including the making of any payment or delivery hereunder and the giving of instructions or directions by or to the Beneficial Owner in any Units underlying such Global
Certificate) as the sole Holder of such Global Certificate and shall have no obligations to the Beneficial Owners thereof (subject to the proviso contained in clause (ii) of Section 3.06). None of the
Purchase Contract Agent or the Securities Registrar shall have any responsibility or liability for any acts or omissions of the Depository with respect to any Units underlying such Global Certificate, for the records of the Depository, including
records in respect of beneficial ownership interests in respect of Units underlying such Global Certificate, for any transactions between the Depository and any agent member or between or among the Depository, any such agent member and/or any
Holder or Beneficial Owner in any Units underlying such Global Certificate, or for any transfers of beneficial interests in any Units underlying such Global Certificate.
Notwithstanding the foregoing, with respect to any Global Certificate, nothing contained herein shall prevent the Corporation, the Purchase Contract Agent or any agent of the Corporation or the
Purchase Contract Agent, from giving effect to any written certification, proxy or other authorization furnished by the Depository (or its nominee), as a Holder, with respect to such Global Certificate, or impair, as between such Depository and the
related Beneficial Owner, the operation of customary practices governing the exercise of rights of the Depository (or its nominee) as Holder of such Global Certificate. None of the Corporation, the Purchase Contract Agent or any agent of the
Corporation or the Purchase Contract Agent 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 Global Certificate or maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
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Section 3.12. Cancellation. All Certificates surrendered for
delivery of Common Shares on or after the Purchase Contract Settlement Date or in connection with an Early Settlement or a Fundamental Change Early Settlement or for delivery of the Notes underlying the Applicable Ownership Interests in Notes,
the Applicable Ownership Interests in the Treasury Portfolio or Treasury Securities, as the case may be, after the occurrence of a Termination Event or pursuant to a Cash Settlement, an Early Settlement or a Fundamental Change Early Settlement, a
Collateral Substitution, or upon the registration of transfer or exchange of a Unit, shall, if surrendered to any Person other than the Purchase Contract Agent, be delivered to the Purchase Contract Agent along with appropriate written
instructions regarding the cancellation thereof and shall be promptly cancelled by it. The Corporation may at any time deliver to the Purchase Contract Agent for cancellation any Certificates previously authenticated, executed and delivered
hereunder that the Corporation may have acquired in any manner whatsoever, and all Certificates so delivered shall, upon an Issuer Order, be promptly cancelled by the Purchase Contract Agent. No Certificates shall be authenticated, executed on
behalf of the Holder and delivered in lieu of or in exchange for any Certificates cancelled as provided in this Section 3.12, except as expressly permitted by this Agreement. All cancelled Certificates held by the Purchase Contract Agent shall
be disposed of in accordance with its customary practices.
If the Corporation or any Affiliate of the Corporation shall acquire any Certificate, such acquisition shall not operate as a cancellation of such Certificate unless and until such Certificate is
delivered to the Purchase Contract Agent for cancellation.
Section 3.13. Creation of Treasury Units by Substitution of Treasury Securities. (a) Subject to the conditions set forth in this Agreement, a Holder of Corporate Units may, at any time from and after the date of this Agreement, other than during a Blackout Period or after a Successful Remarketing, effect a
Collateral Substitution and separate the Notes underlying the Pledged Applicable Ownership Interests in Notes in respect of such Holder’s Corporate Units by substituting for such Pledged Applicable Ownership Interests in Notes for which
Collateral Substitution is being made, Treasury Securities in an aggregate principal amount at maturity equal to the aggregate principal amount of the Notes underlying the Pledged Applicable Ownership Interests in Notes; provided that Holders may make Collateral Substitutions only in integral multiples of 20 Corporate Units. To effect such substitution, the Holder must:
(1) Transfer to the Collateral Agent, for credit to the Collateral Account, Treasury Securities and/or security entitlements with respect thereto having an aggregate
principal amount at maturity equal to the aggregate principal amount of the Notes underlying the Pledged Applicable Ownership Interests in Notes for which such Collateral Substitution is made; and
(2) Transfer the related Corporate Units to the Purchase Contract Agent accompanied by a notice to the Purchase Contract Agent, substantially in the form of Exhibit C
hereto, whereupon the Purchase Contract Agent shall (in accordance with the instructions provided for in the aforementioned notice from the Holder) promptly provide an instruction to such effect to the Collateral Agent, substantially in the form of
Exhibit F hereto.
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Upon confirmation that the Treasury Securities described in clause (1) above or security entitlements with respect thereto have been credited to the Collateral Account and receipt of the
instruction to the Collateral Agent described in clause (2) above, the Collateral Agent shall promptly release such Pledged Applicable Ownership Interests in Notes from the Pledge by directing the Securities Intermediary by a notice, substantially
in the form of Exhibit G hereto, to Transfer the Notes underlying such Pledged Applicable Ownership Interests in Notes to the Purchase Contract Agent for distribution to such Holder as instructed by such Holder to the Purchase Contract Agent in
accordance with the terms provided for herein, free and clear of the Pledge created hereby.
The substituted Treasury Securities will be pledged to the Corporation through the Collateral Agent to secure such Holder’s obligation to purchase Common Shares under the related Purchase Contract.
Upon credit to the Collateral Account of Treasury Securities and/or security entitlements with respect thereto delivered by a Holder of Corporate Units and receipt of the related instruction from
the Collateral Agent, the Securities Intermediary shall promptly Transfer the Notes underlying the appropriate Pledged Applicable Ownership Interests in Notes to the Purchase Contract Agent for distribution to such Holder as instructed by such
Holder to the Purchase Contract Agent in accordance with the terms provided for herein, free and clear of the Pledge created hereby.
Upon receipt of the Notes underlying such Pledged Applicable Ownership Interests in Notes, the Purchase Contract Agent shall promptly:
(i) cancel the related Corporate Units;
(ii) Transfer the Notes to the Holder; and
(iii) cause the Collateral Agent to deliver Treasury Units in book-entry form, or if
applicable, cause the Collateral Agent to deliver the Treasury Units to the Purchase Contract Agent, upon receipt of which the Purchase Contract Agent shall authenticate, execute on behalf of such Holder as the attorney-in-fact of such Holder and
deliver Treasury Units in the form of a Treasury Units Certificate executed by the Corporation in accordance with Section 3.03 evidencing the same number of Purchase Contracts as were evidenced by the cancelled Corporate Units.
Holders who elect to separate the Notes by substituting Treasury Securities for Applicable Ownership Interest in Notes shall be responsible for any taxes, governmental charges or other fees or
expenses (including, without limitation, fees and expenses payable to the Collateral Agent) attributable to such Collateral Substitution, and neither the Corporation nor the Purchase Contract Agent nor the Collateral Agent nor the Securities
Intermediary shall be responsible for any such taxes, governmental charges or other fees or expenses.
(b) In the event a Holder making a Collateral Substitution pursuant to this Section 3.13 fails to effect a
book-entry transfer of the Corporate Units or fails to deliver Corporate Units Certificates to the Purchase Contract Agent after transferring Treasury Securities and/or security entitlements in respect thereof to the Collateral Agent, for credit
to the Collateral Account, any distributions on the Notes underlying the Applicable Ownership Interests in Notes constituting a part of such Corporate Units, shall be held in the name of the Purchase Contract Agent or its nominee in trust for the
benefit of such Holder, until such Corporate Units are so transferred or the Corporate Units Certificate is so delivered, as the case may be, or such Holder provides evidence satisfactory to the Corporation and the Purchase Contract Agent that
such Corporate Units Certificate has been destroyed, lost or stolen, together with any indemnity and/or security that may be required by the Purchase Contract Agent and the Corporation.
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(c) Except as provided for in this Section 3.13, or in connection with a Cash Settlement, an Early Settlement,
a Fundamental Change Early Settlement or a Termination Event, for so long as the Purchase Contract underlying a Corporate Unit remains in effect, such Corporate Unit shall not be separable into its constituent parts, and the rights and
obligations of the Holder in respect of the Applicable Ownership Interests in Notes or Applicable Ownership Interests in the Treasury Portfolio, as the case may be, and the Purchase Contract comprising such Corporate Units may be acquired, and
may be transferred and exchanged, only as a Corporate Unit and in the manner provided for in Exhibit C attached hereto.
Section 3.14. Recreation of Corporate Units. (a) Subject to
the conditions set forth in this Agreement, a Holder of Treasury Units may effect a Collateral Substitution and recreate Corporate Units at any time from and after the date of this Agreement, other than during a Blackout Period or after a
Successful Remarketing; provided that Holders of Treasury Units may only recreate Corporate Units in integral multiples of 20 Treasury Units. To recreate
Corporate Units, the Holder must:
(1) Transfer to the Collateral Agent for credit to the Collateral Account Notes having an aggregate principal amount equal to the aggregate principal amount at maturity
of the Pledged Treasury Securities to be released; and
(2) Transfer the related Treasury Units to the Purchase Contract Agent accompanied by a notice to the Purchase Contract Agent, substantially in the form of Exhibit C
hereto, whereupon the Purchase Contract Agent shall (in accordance with the instructions provided for in the aforementioned notice from the Holder) promptly provide an instruction to such effect to the Collateral Agent, substantially in the form of
Exhibit H hereto.
Upon confirmation that the Notes described in clause (1) above have been credited to the Collateral Account and receipt of the instruction from the Purchase Contract Agent described in clause (2)
above, the Collateral Agent shall promptly release such Pledged Treasury Securities from the Pledge by directing the Securities Intermediary by a notice, substantially in the form of Exhibit I hereto, to Transfer such Pledged Treasury Securities to
the Purchase Contract Agent for distribution to such Holder as instructed by such Holder to the Purchase Contract Agent in accordance with the terms provided for herein, free and clear of the Pledge created hereby.
The substituted Notes will be pledged to the Corporation through the Collateral Agent to secure such Holder’s obligation to purchase Common Shares under the related Purchase Contract.
Upon credit to the Collateral Account of Notes delivered by a Holder of Treasury Units and receipt of the related instruction from the Collateral Agent, the Securities Intermediary shall promptly
Transfer the Pledged Treasury Securities to the Purchase Contract Agent for distribution to such Holder as instructed by such Holder to the Purchase Contract Agent in accordance with the terms provided for herein, free and clear of the Pledge
created hereby.
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Upon receipt of such Treasury Securities, the Purchase Contract Agent shall promptly:
(i) cancel the related Treasury Units;
(ii) transfer the Treasury Securities to the Holder; and
(iii) cause the Collateral Agent to deliver Corporate Units in book-entry form or, if
applicable, cause the Collateral Agent to deliver the Corporate Units to the Purchase Contract Agent, upon receipt of which the Purchase Contract Agent shall authenticate, execute on behalf of such Holder as the attorney-in-fact of such Holder
and deliver Corporate Units in the form of a Corporate Units Certificate executed by the Corporation in accordance with Section 3.03 evidencing the same number of Purchase Contracts as were evidenced by the cancelled Treasury Units.
Holders who elect to recreate Corporate Units shall be responsible for any taxes, governmental charges or other fees or expenses (including, without limitation, fees and expenses payable to the
Collateral Agent), attributable to such Collateral Substitution and neither the Corporation nor the Purchase Contract Agent nor the Collateral Agent shall be responsible for any such taxes, governmental charges or other fees or expenses.
(b) Except as provided in this Section 3.14 or in connection with a Cash Settlement, an Early Settlement, a
Fundamental Change Early Settlement or a Termination Event, for so long as the Purchase Contract underlying a Treasury Unit remains in effect, such Treasury Unit shall not be separable into its constituent parts and the rights and obligations of
the Holder of such Treasury Unit in respect of the interest in the Treasury Security and Purchase Contract composing such Treasury Unit may be acquired, and may be transferred and exchanged, only as a Treasury Unit.
Section 3.15. Transfer of Collateral Upon Occurrence of Termination Event. (a) Upon receipt by the Collateral Agent of written notice pursuant to Section 5.07 from the Corporation that a Termination Event has occurred, the Collateral Agent shall promptly release all Collateral from the Pledge and shall
promptly instruct the Securities Intermediary to Transfer (in accordance with the instructions provided for in the aforementioned notice from the Corporation):
(i) any Notes underlying Pledged Applicable Ownership Interests in Notes and/or security
entitlements with respect thereto or Applicable Ownership Interests in the Treasury Portfolio;
(ii) any Pledged Treasury Securities;
(iii) any payments made by Holders (or the Permitted Investments, if any, of such payments)
pursuant to Section 5.02(b)(ix) or 5.03; and
(iv) any Proceeds and all other payments the Collateral Agent receives in respect of the
foregoing,
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to the Purchase Contract Agent for the benefit of the Holders for distribution to such Holders as instructed by such Holders to the Purchase Contract Agent in accordance with the terms provided for herein, in
accordance with their respective interests, free and clear of the Pledge created hereby; provided, however, if any Holder or Beneficial Owner shall be entitled to receive Notes in an aggregate principal amount of less than $1,000,
or greater than $1,000 but not in an integral multiple of $1,000, the Purchase Contract Agent shall request, on behalf of such Holder or Beneficial Owner, as the attorney-in-fact of such Holder or Beneficial Owner, that the Corporation issue, and
promptly following such request the Corporation shall issue, Notes in denominations of $50, or integral multiples thereof, in exchange for Notes in denominations of $1,000 or integral multiples thereof; and provided further, if any
Holder shall be entitled to receive, with respect to its Applicable Ownership Interests in the Treasury Portfolio or its Pledged Treasury Securities, any securities having a principal amount at maturity of less than $1,000, the Purchase Contract
Agent shall dispose of such Applicable Ownership Interests in the Treasury Portfolio or Pledged Treasury Securities for cash and deliver to such Holder cash in lieu of delivering the Applicable Ownership Interests in the Treasury Portfolio or
Pledged Treasury Securities, as the case may be, upon receipt of and in accordance with instructions to be separately provided by such Holder.
(b) Notwithstanding anything to the contrary in Section 3.15(a), if such Termination Event shall result from
Insolvency Proceedings in respect of the Corporation, and if the Collateral Agent shall for any reason fail promptly to effectuate the release and Transfer of all Notes underlying Pledged Applicable Ownership Interests in Notes, Applicable
Ownership Interests in the Treasury Portfolio, Pledged Treasury Securities and payments by Holders (or the Permitted Investments purchased with such payments) pursuant to Section 5.02(b)(ix) or 5.03 and Proceeds and all other payments received by
the Collateral Agent in respect of the foregoing, as the case may be, as provided by this Section 3.15, then the Purchase Contract Agent shall within 15 days after its receipt of written notice from the Corporation of the occurrence of such
Termination Event pursuant to Section 5.07 hereof commence an action or proceeding in the court having jurisdiction over the Corporation’s Insolvency Proceedings seeking an order requiring the Collateral Agent to effectuate the release and
transfer of all Notes underlying Pledged Applicable Ownership Interests in Notes, Applicable Ownership Interests in the Treasury Portfolio, Pledged Treasury Securities and the payments by Holders (or the Permitted Investments, if any, purchased
with such payments) pursuant to Section 5.02(b)(ix) or 5.03 and Proceeds and all other payments received by the Collateral Agent in respect of the foregoing, or as the case may be, as provided by this Section 3.15.
(c) Upon receipt by the Purchase Contract Agent of written notice pursuant to Section 5.07 from the Corporation
that a Termination Event has occurred and the Transfer to the Purchase Contract Agent of the Notes underlying Pledged Applicable Ownership Interests in Notes, the appropriate Applicable Ownership Interests in the Treasury Portfolio and/or the
Pledged Treasury Securities, as the case may be, pursuant to this Section 3.15, the Purchase Contract Agent shall request transfer instructions with respect to such Notes, Applicable Ownership Interests in the Treasury Portfolio and/or Pledged
Treasury Securities, as the case may be, from each Holder by written request, substantially in the form of Exhibit D hereto, delivered to such Holder at its address as it appears in the Security Register.
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(d) Upon book-entry transfer of the Corporate Units or the Treasury Units or delivery of a Corporate Units
Certificate or Treasury Units Certificate to the Purchase Contract Agent with such transfer instructions in connection with a Termination Event, the Purchase Contract Agent shall transfer the Notes underlying Pledged Applicable Ownership
Interests in Notes, the Applicable Ownership Interests in the Treasury Portfolio or Pledged Treasury Securities, as the case may be, underlying such Corporate Units or Treasury Units, as the case may be, to such Holder by book-entry transfer, or
other appropriate procedures, in accordance with such instructions and, in the case of the Notes underlying Pledged Applicable Ownership Interests in Notes, in accordance with the terms of the Indenture. In the event a Holder of Corporate Units
or Treasury Units fails to deliver transfer instructions or effect such transfer or delivery, the Notes underlying Pledged Applicable Ownership Interests in Notes, the Applicable Ownership Interests in the Treasury Portfolio or Pledged Treasury
Securities, as the case may be, underlying such Corporate Units of Treasury Units, as the case may be, and any distributions thereon, shall be held in the name of the Purchase Contract Agent or its nominee in trust for the benefit of such Holder,
until the earlier to occur of:
(i) the transfer of such Corporate Units or Treasury Units or surrender of the Corporate
Units Certificate or Treasury Units Certificate or the receipt by the Corporation and the Purchase Contract Agent from such Holder of satisfactory evidence that such Corporate Units Certificate or Treasury Units Certificate has been destroyed,
lost or stolen, together with any indemnity and/or security that may be required by the Purchase Contract Agent and the Corporation; and
(ii) the expiration of the time period specified by the applicable law governing abandoned
property in the state in which the Purchase Contract Agent holds such property.
Section 3.16. No Consent to Assumption. Each Holder of a Unit,
by acceptance thereof, and to the extent applicable in any Insolvency Proceeding involving the Corporation, shall be deemed to have expressly withheld any consent to the assumption under Section 365 of the Bankruptcy Code or otherwise, of the
Purchase Contract by the Corporation or its trustee, receiver, liquidator or a person or entity performing similar functions in the event that the Corporation becomes a debtor under the Bankruptcy Code or subject to other similar state or Federal
law providing for reorganization or liquidation.
Section 3.17. Substitutions. Whenever a Holder has the right to
substitute Treasury Securities or Notes underlying Applicable Ownership Interests in Notes, as the case may be, or security entitlements for any of them, for financial assets held in the Collateral Account, such substitution shall not constitute
a novation of the security interest created hereby.
ARTICLE 4
THE NOTES
Section 4.01. Interest Payments; Rights to Interest Payments Preserved. (a) The Collateral Agent shall transfer all income and distributions (other than those described in Section 4.02(a)) received by it on account of the Notes underlying Pledged Applicable Ownership Interests in Notes (if the Notes
underlying Pledged Applicable Ownership Interests in Notes are registered in the name of the Collateral Agent), the Pledged Applicable Ownership Interests in the Treasury Portfolio or Permitted Investments from time to time held in the Collateral
Account to the Purchase Contract Agent, according to transfer instructions to be provided by the Purchase Contract Agent to the Collateral Agent in writing, for distribution to the applicable Holders as provided in this Agreement and the Purchase
Contracts, free and clear of the Pledge created hereby.
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(b) Any payment in respect of a Unit relating to any Note underlying Applicable Ownership Interests in Notes or
any distribution in respect of a Unit on any Applicable Ownership Interests in the Treasury Portfolio (as specified in clause (ii) of the definition of Applicable Ownership Interest in the Treasury Portfolio) (in each case other than those
described in Section 4.02(a)), as the case may be, which is paid in respect of any Payment Date shall, subject to receipt thereof by the Purchase Contract Agent in its capacity as paying agent from the Corporation or from the Collateral Agent as
provided in Section 4.01(a), be paid on such Payment Date to the Person in whose name the Corporate Units Certificate (or one or more Predecessor Corporate Units Certificates) of which such Applicable Ownership Interest in Notes or Applicable
Ownership Interests in the Treasury Portfolio, as the case may be, forms a part is registered at the close of business on the Record Date for such Payment Date. If the book-entry system for the Units has been terminated, any such payment will be
payable by check mailed to the address of the Person entitled thereto at such Person’s address as it appears on the Security Register, or, if such Person so requests and designates an account in writing to the Purchase Contract Agent in its
capacity as paying agent at least five Business Days prior to the relevant Payment Date, by wire transfer to such account.
(c) Each Corporate Units Certificate evidencing Applicable Ownership Interests in Notes or Applicable Ownership
Interests in the Treasury Portfolio delivered under this Agreement upon registration of transfer of or in exchange for or in lieu of any other Corporate Units Certificate shall carry the right to accrued and unpaid interest or distributions, and
to accrued interest or distributions, which were carried by Applicable Ownership Interests in Notes or Applicable Ownership Interests in the Treasury Portfolio underlying such other Corporate Units Certificate.
(d) In the case of any Corporate Unit with respect to which (1) Cash Settlement of the underlying Purchase
Contract is properly effected pursuant to Section 5.02(b)(ix) or 5.03(a), (2) Early Settlement of the underlying Purchase Contract is properly effected pursuant to Section 5.08, (3) Fundamental Change Early Settlement of the underlying Purchase
Contract is properly effected pursuant to Section 5.05(b)(ii) or (4) a Collateral Substitution is properly effected pursuant to Section 3.13, in each case, on a date that is after any Record Date and prior to or on the next succeeding Payment
Date, interest in respect of the Notes underlying Applicable Ownership Interests in Notes or distributions on Applicable Ownership Interests in the Treasury Portfolio, as the case may be, underlying such Corporate Unit otherwise payable on such
Payment Date shall be payable on such Payment Date notwithstanding such Cash Settlement, Early Settlement, Fundamental Change Early Settlement or Collateral Substitution, and such payment or distributions shall, subject to receipt thereof by the
Purchase Contract Agent, be payable to the Person in whose name the Corporate Units Certificate (or one or more Predecessor Corporate Units Certificates) was registered at the close of business on the Record Date.
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(e) Except as otherwise expressly provided in Section 4.01(d), in the case of any Corporate Unit with respect
to which Cash Settlement, Early Settlement or Fundamental Change Early Settlement of the underlying Purchase Contract is properly effected, or with respect to which a Collateral Substitution is properly effected, payments attributable to the
Notes underlying Applicable Ownership Interests in Notes or distributions on Applicable Ownership Interests in the Treasury Portfolio, as the case may be, that would otherwise be payable or made after the applicable Settlement Date or the date of
the Collateral Substitution, as the case may be, shall not be payable hereunder to the Holder of such Corporate Units; provided, however, that to the extent that such Holder continues to hold Separate Notes or Applicable Ownership Interests in the Treasury Portfolio that formerly comprised a part
of such Holder’s Corporate Units, such Holder shall be entitled to receive interest on such Separate Notes or distributions on such Applicable Ownership Interests in the Treasury Portfolio, as applicable.
Section 4.02. Payments Prior to or on Purchase Contract Settlement Date. (a) Subject to the provisions of Section 5.03(a), Section 5.05(b)(ii) and Section 5.08, and except as provided in Section 4.02(b) below, if no Termination Event shall have occurred, all payments received by the Securities Intermediary
in respect of (1) the Put Price for, or the proceeds received in a Successful Final Remarketing attributable to, Notes underlying Pledged Applicable Ownership Interests in Notes, (2) the Pledged Applicable Ownership Interests in the Treasury
Portfolio, and (3) the Pledged Treasury Securities, shall be credited to the Collateral Account to be invested as directed in writing by the Corporation (if applicable) in Permitted Investments until the Purchase Contract Settlement Date, and
such payments (or the proceeds of such Permitted Investments, if applicable) shall be transferred to the Corporation on the Purchase Contract Settlement Date as provided in Sections 5.02 and 5.03 hereof to the extent necessary to satisfy the
Holder’s obligation pursuant to Section 5.01 to pay the Purchase Price to settle the Purchase Contracts. Any balance thereafter remaining in the Collateral Account shall be released from the Pledge and transferred to the Purchase Contract Agent
for distribution on the Purchase Contract Settlement Date to the Holders as of the Record Date immediately preceding the Purchase Contract Settlement Date, in accordance with their respective interests pursuant to Section 11.02, free and clear of
the Pledge created hereby. If the Corporation fails to deliver investment instructions by 10:30 a.m. (New York City time) on the day such payments are received by the Securities Intermediary, the Collateral Agent shall instruct the Securities
Intermediary to invest such payments in the Permitted Investments (if any), which have been designated by the Corporation in writing from time to time in a standing instruction to the Securities Intermediary which shall be effective until revoked
or superseded. If no such standing instruction exists, such funds shall remain uninvested. In no event shall the Collateral Agent or the Securities Intermediary be liable for the selection of Permitted Investments or for investment losses
incurred thereon. The Collateral Agent and the Securities Intermediary shall have no liability in respect of losses incurred as a result of the failure of the Corporation to provide timely written investment direction.
(b) All payments received by the Securities Intermediary in respect of (1) the Notes, (2) the Applicable
Ownership Interests in the Treasury Portfolio and (3) the Treasury Securities and security entitlements with respect thereto, that, in each case, have been released from the Pledge hereunder shall be transferred to the Purchase Contract Agent for
the benefit of the applicable Holders for distribution to such Holders in accordance with their respective interests.
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Section 4.03. Notice and Voting. (a) Subject to Section
4.03(b) hereof, the Purchase Contract Agent shall exercise, or refrain from exercising, any and all voting and other consensual rights pertaining to the Notes underlying Pledged Applicable Ownership Interests in Notes or any part thereof for any
purpose not inconsistent with the terms of this Agreement. Upon receipt of any notices and other communications in respect of any Notes underlying Pledged Applicable Ownership Interests in Notes, including either notice of any meeting at which
holders of the Notes are entitled to vote or the solicitation of consents, waivers or proxies of holders of the Notes, the Collateral Agent shall use commercially reasonable efforts to send promptly to the Purchase Contract Agent such notice or
communication, and as soon as reasonably practicable after receipt of a written request therefor from the Purchase Contract Agent acting as attorney-in-fact for the Holders, to execute and deliver to the Purchase Contract Agent such proxies and
other instruments in respect of such Notes underlying Pledged Applicable Ownership Interests in Notes as are prepared by the Corporation and delivered to the Collateral Agent for delivery to the Purchase Contract Agent with respect to the Notes
underlying Pledged Applicable Ownership Interests in Notes.
(b) Upon receipt of notice of any meeting at which holders of Notes are entitled to vote or upon any
solicitation of consents, waivers or proxies of holders of Notes, the Purchase Contract Agent shall, as soon as practicable thereafter, first class, postage prepaid mail or electronic delivery, in each case, to the Holders of Corporate Units a
notice:
(i) containing such information as is contained in the notice or solicitation;
(ii) stating that each Holder on the record date set by the Purchase Contract Agent
therefor (which, to the extent possible, shall be the same date as the record date set by the Corporation for determining the holders of Notes entitled to vote) shall be entitled to instruct the Purchase Contract Agent as to the exercise of the
voting rights pertaining to such Notes underlying the Applicable Ownership Interests in Notes that are a component of their Corporate Units; and
(iii) stating the manner in which such instructions may be given.
Upon the written request of the Holders of Corporate Units on such record date (which must be received by the Purchase Contract Agent at least six days prior to the applicable meeting), the
Purchase Contract Agent shall endeavor insofar as practicable to vote or cause to be voted, in accordance with the instructions set forth in such requests, the maximum aggregate principal amount of Notes (rounded down to the nearest integral
multiple of $1,000) as to which any particular voting instructions are received. In the absence of specific instructions from the Holder of Corporate Units, the Purchase Contract Agent shall abstain from voting the Notes underlying Applicable
Ownership Interests in Notes that are a component of such Corporate Units. The Corporation hereby agrees, if applicable, to solicit Holders of Corporate Units to timely instruct the Purchase Contract Agent as to the exercise of such voting rights
in order to enable the Purchase Contract Agent to vote such Notes as the attorney-in-fact for the Holders. Notwithstanding anything in this Agreement to the contrary, in the event that such Notes are held by or through DTC or another Depository,
the exercise of a Holder’s right to vote shall occur in conformity with the Applicable Procedures and standing arrangements between DTC or such Depository and the Corporation or the Purchase Contract Agent.
(c) The Holders of Corporate Units and the Holders of Treasury Units, in their capacity as such Holders, shall
have no voting or other rights in respect of the Common Shares.
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(d) Notwithstanding anything herein to the contrary, with respect to any Global Certificate held through DTC (or
a nominee thereof), each Person holding a beneficial interest in such Global Certificate may be considered to be a “Holder” of Notes underlying Pledged Applicable Ownership Interests in Notes for purposes of voting on the matters relating thereto
(for example, such Person holding a beneficial interest in such Global Certificate may consent to any waiver or amendment directly without requiring the participation of DTC or its nominee); it being understood that if such Person holding a
beneficial interest in such Global Certificate is authorized pursuant to an official DTC proxy, or if the Purchase Contract Agent receives evidence satisfactory to the Purchase Contract Agent (in its sole discretion) that (a) such Person holds
the beneficial interests in such Global Certificate that it purports to vote (such evidence of ownership may include a securities position or participant list or other information obtained from DTC) and (b) such beneficial interest in such Global
Certificate shall remain so owned for purposes of such vote, then the Purchase Contract Agent may recognize such Person for purposes of voting.
(e) In connection with any vote of the Holders as required under the terms hereof, the Purchase Contract Agent
may at the expense of the Corporation appoint an independent third party solicitation agent (the “Solicitation Agent”) to conduct any solicitation of
consents as required under the terms hereof. The Solicitation Agent shall report the results of any such solicitation taken under the terms hereof to the Purchase Contract Agent to enable the Purchase Contract Agent to exercise the voting rights
of such Holders as the attorney-in-fact for such Holders. In the absence of gross negligence or willful misconduct by the Purchase Contract Agent, the Purchase Contract Agent may conclusively rely and shall be fully protected in acting or
refraining from acting upon the results provided to it by such Solicitation Agent.
Section 4.04. Payments and Deliveries to Purchase Contract Agent.
The Securities Intermediary shall use commercially reasonable efforts to deliver any payments required to be made by it to the Purchase Contract Agent hereunder to the account designated by the Purchase Contract Agent for such purpose not later
than 10:00 a.m. (New York City time) on the Business Day such payment is received by the Securities Intermediary; provided, however, that if such payment is received on a day that is not a Business Day or after 10:00 a.m. (New York City time) on a Business Day, then the Securities Intermediary shall use
commercially reasonable efforts to deliver such payment to the Purchase Contract Agent no later than 10:00 a.m. (New York City time) on the next succeeding Business Day. In connection with the Transfer of any Treasury Securities to the Purchase
Contract Agent hereunder, the Collateral Agent shall cause such Transfer to be made at the Corporate Trust Office.
Section 4.05. Payments Held in Trust. If the Purchase Contract
Agent or any Holder shall receive any payments on account of the repayment of principal with respect to financial assets credited to the Collateral Account (other than, for the avoidance of doubt, interest on the Notes or distributions on the
Applicable Ownership Interests in the Treasury Portfolio (as specified in clause (ii) of the definition thereof)) and not released therefrom in accordance with this Agreement, the Purchase Contract Agent or such Holder shall hold such payments as
trustee of an express trust for the benefit of the Corporation and, upon receipt of an Officers’ Certificate so directing, promptly deliver such payments to the Securities Intermediary for credit to the Collateral Account or, if the Obligations
have become due and payable, to the Corporation for application to the Obligations of the applicable Holder or Holders, and the Purchase Contract Agent and Holders shall acquire no right, title or interest in any such payments of principal
amounts so received.
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ARTICLE 5
THE PURCHASE CONTRACTS
Section 5.01. Purchase of Common Shares. (a) Each Purchase
Contract shall obligate the Holder of the related Unit to purchase, and the Corporation to issue and deliver, on the Purchase Contract Settlement Date at a price equal to the Stated Amount (the “Purchase
Price”), a number of Common Shares equal to the Settlement Rate, together with cash, if applicable, in lieu of any fractional Common Share in accordance with Section 5.09, unless an Early Settlement
Date, a Fundamental Change Early Settlement or a Termination Event with respect to the Units of which such Purchase Contract is a part shall have occurred, subject to Section 5.05(b)(ii).
The “Settlement Rate” is determined as follows:
(i) If the Applicable Market Value is equal to or greater than the Threshold Appreciation
Price, the Settlement Rate will be 2.7778 Common Shares (such Settlement Rate, subject to adjustment as provided in Section 5.05(a), being referred to as the “Minimum Settlement Rate”);
(ii) if the Applicable Market Value is less than the Threshold Appreciation Price but
greater than $15.00 (subject to adjustment, as set forth in Section 5.05(a)(vii)(1), the “Reference Price”), the Settlement Rate will be a number of Common
Shares equal to the Stated Amount, divided by the Applicable
Market Value, rounded to the nearest 1/10,000th of a share; and
(iii) if the Applicable Market Value is less than or equal to the Reference Price, the
Settlement Rate will be 3.3333 Common Shares (such Settlement Rate, subject to adjustment as provided in Section 5.05(a), being referred to as the “Maximum Settlement Rate”).
The Maximum Settlement Rate, Minimum Settlement Rate and the Applicable Market Value (as defined below) are subject to adjustment as provided in Section 5.05 (and, in the case of each Fixed
Settlement Rate, shall be rounded upward or downward to the nearest 1/10,000th of a share).
The “Applicable Market Value” means, as determined by the Corporation, the average VWAP of Common Shares for the Trading Days during the Market Value Averaging Period, subject to Section
5.05(b)(i); provided that if 20 Trading Days for the Common Shares have not occurred during the Market Value Averaging Period, all remaining Trading Days shall be deemed to occur on the second Scheduled
Trading Day immediately prior to the Purchase Contract Settlement Date and the VWAP for each of the remaining Trading Days will be the VWAP on such second Scheduled Trading Day or, if such day is not a Trading Day, the Closing Price of the Common
Shares as of such day, as expressed in U.S. dollars.
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The “VWAP” means, in respect of the Common Shares, for the relevant Trading Day:
(i) |
if the Common Shares are listed on the New York Stock Exchange, the per share VWAP on the New York Stock Exchange as displayed under the heading Bloomberg VWAP on Bloomberg page “AQN US<EQUITY>AQR” (or
its equivalent successor if that page is not available) in respect of the period from the scheduled open of trading on the relevant Trading Day until the scheduled close of trading on the relevant Trading Day (or if such VWAP is
unavailable, the market price of one Common Share on such Trading Day determined, using a volume-weighted average method, by an investment banking firm that is nationally recognized in the United States retained for this purpose by the
Corporation);
|
(ii) |
if the Common Shares are not listed on the New York Stock Exchange but are listed on the Nasdaq Global Market or the Nasdaq Global Select Market, the per share VWAP on the Nasdaq Global Market or the Nasdaq
Global Select Market, as applicable, as displayed under the heading Bloomberg VWAP on Bloomberg page “AQN US<EQUITY>AQR” (or its equivalent successor if that page is not available) in respect of the period from the scheduled open of
trading on the relevant Trading Day until the scheduled close of trading on the relevant Trading Day (or if such VWAP is unavailable, the market price of one Common Share on such Trading Day determined, using a volume-weighted average
method, by an investment banking firm that is nationally recognized in the United States retained for this purpose by the Corporation);
|
(iii) |
if the Common Shares are not listed on the New York Stock Exchange, the Nasdaq Global Market or the Nasdaq Global Select Market but are listed on the Toronto Stock Exchange, the per share VWAP on the Toronto Stock Exchange as displayed under the heading Bloomberg VWAP on Bloomberg
page “AQN CN<EQUITY>AQR” (or its equivalent successor if that page is not available) in respect of the period from the scheduled open of trading on the relevant Trading Day until the scheduled close of trading on the relevant
Trading Day (or if such VWAP is unavailable, the market price of one Common Share on such Trading Day determined, using a volume-weighted average method, by an investment banking firm that is nationally recognized in the United States
retained for this purpose by the Corporation); or
|
(iv) |
if the Common Shares are not listed on the New York Stock Exchange, the Nasdaq Global Market, the Nasdaq Global Select Market or the Toronto Stock Exchange, the per share VWAP on the principal U.S. or Canadian exchange or quotation system on which the Common Shares are listed or admitted for trading as
displayed under the heading Bloomberg VWAP on Bloomberg page “AQN US<EQUITY>AQR” or “AQN CN<EQUITY>AQR”, as applicable (or its equivalent successor if the relevant page is not available), in respect of the period from the
scheduled open of trading on the relevant Trading Day until the scheduled close of trading on the relevant Trading Day (or if such VWAP is unavailable, the market price of one Common Share on such Trading Day determined, using a
volume-weighted average method, by an investment banking firm that is nationally recognized in the United States retained for this purpose by the Corporation).
|
The VWAP for any Trading Day will be expressed in U.S. dollars and, if expressed in a different currency for such Trading Day as determined above, will be translated by the
Corporation or its agent to U.S. dollars at the Prevailing Exchange Rate on such Trading Day. The VWAP will be determined by the Corporation or its agent, except to the extent otherwise specified in this definition.
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The “Principal Exchange” means the exchange or quotation system used at the relevant time for the purposes of calculating the VWAP of the Common Shares or that would be
used for purposes of such calculation but for the unavailability of such VWAP.
“Prevailing Exchange Rate” means, for purposes of translating, as of any date, any amount in Canadian dollars or any other non-U.S. currency to U.S. dollars, the spot mid-rate of exchange between such
currencies prevailing as of 4:00 p.m., New York City time, on such date, as displayed on, or derived from, Bloomberg page “BFIX” (or, if such page is not available, its equivalent successor page) in respect of such currencies. If such rate cannot
be determined as provided in the immediately preceding sentence on such date (which, for the purpose of this definition, will be deemed to be the “affected day”), then the Prevailing Exchange Rate for such date will be determined mutatis mutandis but with respect to the immediately preceding day on which such rate can be so determined; provided, however, that, if such immediately preceding day is before the fifth day
before such affected day, or, if such rate cannot be so determined, then the Prevailing Exchange Rate will be determined in such other manner as prescribed in good faith by the Corporation or its agent. The Prevailing Exchange Rate will be
determined by the Corporation or its agent, except to the extent otherwise specified in this definition.
The “Market Value Averaging Period” means the 20 consecutive Scheduled Trading-Day period ending on the second Scheduled Trading Day immediately preceding the Purchase Contract Settlement
Date.
The “Closing Price” per Common Share means, on any date of determination, the closing sale price or, if no closing sale price is reported, the last reported sale price per Common Share on
the Principal Exchange, or if the Common Shares are not listed on a securities exchange, the average of the last quoted bid and ask prices for the Common Shares in the over-the-counter market as reported by OTC Markets Group Inc. or similar
organization, or, if those bid and ask prices are not available, the market value of the Common Shares on that date as determined by an independent investment banking firm that is nationally recognized in the United States retained by the
Corporation for this purpose. The Closing Price for any Trading Day will be expressed in U.S. dollars and, if expressed in a different currency for such Trading Day, will be translated by the Corporation or its agent to U.S. dollars at the Prevailing Exchange Rate on such Trading Day. The closing price will be determined by the Corporation or its agent, except to the extent otherwise specified in this definition.
A “Trading Day” means, for purposes of determining a VWAP or Closing Price, a day (i) on which the Principal Exchange is scheduled to be open for business and (ii) on which there has not
occurred or does not exist a Market Disruption Event. If the Common Shares are not so listed or admitted for trading, “Trading Day” means a “Business Day”.
A “Scheduled Trading Day” means a day that is scheduled to be a Trading Day on the Principal Exchange. If the Common Shares are not so listed or admitted for trading, “Scheduled Trading
Day” means a “Business Day”.
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A “Market Disruption Event” means any of the following events:
(1) any suspension of, or limitation imposed on, trading by the Principal Exchange during the one-hour period prior to the close of trading for the regular trading
session on the Principal Exchange (or for purposes of determining VWAP any period or periods prior to 1:00 p.m. New York City time aggregating one half hour or longer) and whether by reason of movements in price exceeding limits permitted by the
Principal Exchange or otherwise relating to the Common Shares or in futures or options contracts relating to the Common Shares on any relevant exchange or quotation system; or
(2) any event (other than a failure to open or, except for purposes of determining VWAP, a closure as described below) that disrupts or impairs the ability of market
participants during the one-hour period prior to the close of trading for the regular trading session on the Principal Exchange (or for purposes of determining VWAP any period or periods prior to 1:00 p.m. New York City time aggregating one half
hour or longer) in general to effect transactions in, or obtain market values for, the Common Shares on the Principal Exchange or futures or options contracts relating to the Common Shares on any relevant exchange or quotation system; or
(3) the failure to open of the principal securities exchange or quotation system on which futures or options contracts relating to the Common Shares are traded or,
except for purposes of determining VWAP, the closure of such exchange or quotation system prior to its respective scheduled closing time for the regular trading session on such day (without regard to after hours or other trading outside the regular
trading session hours) unless such earlier closing time is announced by such exchange or quotation system at least one hour prior to the earlier of the actual closing time for the regular trading session on such day and the submission deadline for
orders to be entered into such exchange or quotation system for execution at the actual closing time on such day.
(b) Each Holder of a Corporate Unit or a Treasury Unit, by its acceptance of such Unit shall be deemed to have:
(i) irrevocably appointed the Purchase Contract Agent as its attorney-in-fact to enter into
and perform the related Purchase Contract and this Agreement on its behalf and in the name of and on behalf of such Holder (including, without limitation, the execution of Certificates on behalf of such Holder);
(ii) agreed to be bound by the terms and provisions of such Unit, including, but not
limited to, the terms and provisions of the Purchase Contract and this Agreement, for so long as such Holder remains a Holder of such Unit;
(iii) consented to, and agreed to be bound by, the Pledge of such Holder’s right, title and
interest in and to its applicable portion of the Collateral, including the Pledged Applicable Ownership Interests in Notes, the Pledged Applicable Ownership Interests in the Treasury Portfolio or the Pledged Treasury Securities, as the case may
be, pursuant to this Agreement, and the delivery of such Collateral by the Purchase Contract Agent to the Collateral Agent; and
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(iv) agreed that to the extent and in the manner provided herein, but subject to the terms
hereof, on the Purchase Contract Settlement Date, Proceeds of the Pledged Applicable Ownership Interests in Notes, the Pledged Applicable Ownership Interests in the Treasury Portfolio or the Pledged Treasury Securities, as applicable, equal to
the Purchase Price shall be paid by the Collateral Agent to the Corporation in satisfaction of such Holder’s obligations under the Purchase Contract included in such Unit.
(c) [Reserved.]
(d) Upon registration of transfer of a Certificate, the transferee shall be bound (without the necessity of any
other action on the part of such transferee) by the terms of this Agreement and the Purchase Contracts underlying such Certificate and the transferor shall be released from the obligations under this Agreement and the Purchase Contracts
underlying the Certificate so transferred. The Corporation covenants and agrees, and each Holder of a Certificate, by its acceptance thereof, likewise shall be deemed to have covenanted and agreed, to be bound by the provisions of this
paragraph.
(e) Promptly after the calculation of the Settlement Rate and the Applicable Market Value, the Corporation
shall give the Purchase Contract Agent notice thereof. All calculations and determinations of the Settlement Rate and the Applicable Market Value and any adjustments to the Reference Price or the Threshold Appreciation Price shall be made by the
Corporation or its agent based on their good faith calculations, and the Purchase Contract Agent shall have no responsibility with respect thereto.
(f) If a Market Disruption Event occurs on any Scheduled Trading Day during the Market Value Averaging
Period, the Corporation shall give the Holders and the Purchase Contract Agent notice thereof on the calendar day on which such event occurs.
Section 5.02. Remarketing.
(a) Optional Remarketing. (i) Unless a Termination Event has
occurred, the Corporation may elect, at its option, to engage the Remarketing Agent(s), pursuant to the terms of the Remarketing Agreement, to remarket the aggregate Notes underlying the aggregate Applicable Ownership Interests in Notes that are
components of Corporate Units, along with any Separate Notes, the holders of which have elected to participate in such remarketing pursuant to the Indenture and Section 5.02(d), over a period of one or more days selected by the Corporation that
begins on or after the second Business Day immediately preceding the Interest Payment Date immediately prior to the Purchase Contract Settlement Date and ends any time on or before the eighth calendar day immediately preceding the first day of
the Final Remarketing Period (such period, the “Optional Remarketing Period”).
(ii) The Corporation shall request that the Depository notify the Depository Participants
holding Corporate Units, Treasury Units and Separate Notes of the Corporation’s election to conduct an Optional Remarketing no later than five Business Days prior to the first day of the Optional Remarketing Period, and the Corporation shall
provide a copy of such request to the Purchase Contract Agent, Indenture Trustees, Collateral Agent and Custodial Agent.
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(iii) If the Corporation elects to conduct an Optional Remarketing on an Optional Remarketing
Date, by 4:00 p.m. (New York City time) on the Business Day immediately preceding the first day of the related Optional Remarketing Period, the Corporation shall notify the Purchase Contract Agent and the Custodial Agent in writing and the
Purchase Contract Agent shall notify the Remarketing Agent(s) in writing of the aggregate principal amount of Notes underlying the Pledged Applicable Ownership Interests in Notes that are a part of the Corporate Units to be remarketed, and the
Custodial Agent shall notify in writing the Remarketing Agent(s) of the aggregate principal amount of Separate Notes (if any) to be remarketed pursuant to Section 5.02(d). Pursuant to the Remarketing Agreement, upon receipt of such notices from
the Purchase Contract Agent and the Custodial Agent, the Remarketing Agent(s) will use its commercially reasonable efforts to remarket such Notes for at least the applicable Remarketing Price. The Corporation shall use commercially reasonable
efforts to give the U.S. Indenture Trustee at least a five (5) Business Days advance notice of the expected Remarketing Date in connection with such Optional Remarketing.
(iv) [Reserved.]
(v) [Reserved.]
(vi) If the Remarketing Agent(s) is able to remarket the Notes being remarketed for at least
the applicable Remarketing Price in any Optional Remarketing in accordance with the Remarketing Agreement (a “Successful Optional Remarketing”), the
Corporation shall notify the Collateral Agent and the Custodial Agent thereof and upon receipt of such notice, the Collateral Agent shall cause the Securities Intermediary to Transfer to the Remarketing Agent(s) the remarketed Notes underlying
the Pledged Applicable Ownership Interests in Notes upon confirmation of deposit to the Collateral Account of proceeds of such Successful Optional Remarketing attributable to such Notes underlying the Pledged Applicable Ownership Interests in
Notes, and the Custodial Agent shall Transfer the remarketed Separate Notes to the Remarketing Agent(s) upon confirmation of deposit to the account established by the Custodial Agent for the purpose of receiving such proceeds (the “Separate Notes Account”) of receipt of proceeds of such Successful Optional Remarketing attributable to such Separate Notes. Settlement shall occur on the Remarketing
Settlement Date. Upon deposit in the Collateral Account of such proceeds attributable to the remarketed Notes underlying the Pledged Applicable Ownership Interest in Notes, the Collateral Agent shall (A) unless the Treasury Portfolio shall
consist of Cash, (x) instruct the Securities Intermediary to apply an amount equal to the Treasury Portfolio Purchase Price to purchase the Treasury Portfolio from the dealer identified by the Quotation Agent pursuant to the definition of
“Treasury Portfolio Purchase Price” (the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) constituting the Treasury Portfolio to be determined by the Remarketing Agent(s), who shall provide such
information to the Collateral Agent and the Quotation Agent, who will then determine, and notify the Collateral Agent of, the Treasury Portfolio Purchase Price) and (y) credit to the Collateral Account the Applicable Ownership Interests in the
Treasury Portfolio, (B) if the Treasury Portfolio shall consist of Cash, credit to the Collateral Account Cash in an amount equal to the Treasury Portfolio Purchase Price and (C) promptly remit any remaining portion of such proceeds to the
Purchase Contract Agent for payment to the Holders of Corporate Units, whereupon the Purchase Contract Agent shall promptly make such payment to such Holders as of the Remarketing Settlement Date or such other date as complies with the Applicable
Procedures and the requirements of any securities exchange on which the Units are listed, pro rata in accordance with such Holders’
interests. With respect to any Separate Notes remarketed, upon receipt of proceeds of such Successful Optional Remarketing attributable to the remarketed Separate Notes, the Custodial Agent shall remit the proceeds of such Separate Notes sold in
the Successful Optional Remarketing received from the Remarketing Agent(s) pro rata to the holders of such Separate Notes on the Remarketing
Settlement Date in accordance with the instructions by such holders provided in the form of Exhibit K.
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(vii) If there is a Successful Optional Remarketing, the Corporation shall cause a notice of
the Successful Optional Remarketing to be published no later than 9:00 a.m., New York City time, on the Business Day immediately following the Optional Remarketing Date. This notice shall include the Reset Rate. This notice shall be validly
published by a timely press release to an appropriate Canadian and U.S. news agency and by furnishing such information with the Securities and Exchange Commission in a Form 6-K and filing such information with Canadian Securities Regulators on
SEDAR.
(viii) Following the occurrence of a Successful Optional Remarketing, the Applicable Ownership
Interests in the Treasury Portfolio (as specified in clause (i) of such term) will be substituted as Collateral for the Pledged Applicable Ownership Interests in Notes and will be held by the Collateral Agent in accordance with the terms hereof
to secure the Obligations of each Holder of Corporate Units, and the Holders of Corporate Units and the Collateral Agent shall have such security interests, rights and obligations with respect to the Applicable Ownership Interests in the Treasury
Portfolio (as defined in clause (i) of such term) as the Holder of Corporate Units and the Collateral Agent had in respect of the Pledged Applicable Ownership Interests in Notes and the underlying Notes, subject to the Pledge thereof. Unless the
context otherwise requires, any reference in this Agreement or the Certificates to the Pledged Applicable Ownership Interests in Notes shall thereupon be deemed to be a reference to such Applicable Ownership Interests in the Treasury Portfolio
(as defined in clause (i) of such term). The Corporation may cause to be made in any Corporate Units Certificates thereafter to be issued such change in phraseology and form (but not in substance) as may be appropriate to reflect the
substitution of the Applicable Ownership Interests in the Treasury Portfolio (as defined in clause (i) of such term) for the Pledged Applicable Ownership Interests in Notes as Collateral.
(ix) Following a Successful Optional Remarketing, the Remarketing Agent(s) shall remit (1)
the proceeds attributable to the remarketed Notes underlying the Pledged Applicable Ownership Interest in Notes to the Collateral Agent and (2) the proceeds attributable to the remarketed Separate Notes to the Custodial Agent for the benefit of
the Holders of Separate Notes that had their Notes remarketed.
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(x) If, in spite of its commercially reasonable efforts, the Remarketing Agent(s) cannot
remarket the Notes as set forth above during the Optional Remarketing Period at a price not less than the applicable Remarketing Price or a condition precedent set forth in the Remarketing Agreement is not fulfilled, the Optional Remarketing will
be deemed to have failed (a “Failed Optional Remarketing”). Promptly after a Failed Optional Remarketing and receipt of notice thereof from the
Corporation, the Custodial Agent will return Separate Notes that were to be subject to such Optional Remarketing to the appropriate holders pursuant to the instructions provided by the appropriate holders in the form of Exhibit K.
(xi) If the Corporation elects to remarket the Notes during the Optional Remarketing Period
and a Successful Optional Remarketing has not occurred on or prior to the eighth calendar day prior to the first day of the Final Remarketing Period, the Corporation shall cause notice of the Failed Optional Remarketing to be provided to the
Custodial Agent, the Collateral Agent and the Purchase Contract Agent and to be published no later than 9:00 a.m., New York City time, on the Business Day immediately following the last date of the Optional Remarketing Period. Any such notice
shall be validly published by a timely press release to an appropriate Canadian and U.S. news agency and by furnishing such information with the Securities and Exchange Commission in a Form 6-K and filing such information with Canadian Securities
Regulators on SEDAR.
(xii) The Corporation will pay the Remarketing Fee in connection with any Successful Optional
Remarketing. Holders whose Notes are part of a Successful Optional Remarketing will not be responsible for payment of the Remarketing Fee.
(xiii) At any time and from time to time during any Optional Remarketing Period, prior to the
announcement of a Successful Optional Remarketing, the Corporation has the right to postpone such Optional Remarketing in the Corporation’s sole and absolute discretion.
(b) Final Remarketing. (i) Unless a Termination Event or a
Successful Optional Remarketing has previously occurred, in order to dispose of the Notes underlying Pledged Applicable Ownership Interests in Notes of any Holders of Corporate Units who have not notified the Purchase Contract Agent of their
intention to effect a Cash Settlement as provided in Section 5.03(a)(i), or who have so notified the Purchase Contract Agent but failed to make such payment as required by Section 5.03(a)(ii), the Corporation shall engage the Remarketing
Agent(s), pursuant to the terms of the Remarketing Agreement, to remarket such Notes, along with any Separate Notes, the holders of which have elected to participate in a Final Remarketing pursuant to Section 5.02(d), over a period of one or more
days selected by the Corporation that fall during the Final Remarketing Period.
(ii) The Corporation shall request that the Depository notify the Depository Participants
holding Corporate Units, Treasury Units and Separate Notes of the Final Remarketing no later than seven calendar days prior to the first day of the Final Remarketing Period, and the Corporation shall provide a copy of such request to the Purchase
Contract Agent, the U.S. Indenture Trustee, Collateral Agent and Custodial Agent. In such notice, the Corporation shall set forth the dates of the Final Remarketing Period, the applicable procedures for holders of Separate Notes to participate
in the Final Remarketing, the applicable procedures for Holders of Corporate Units to create Treasury Units, the applicable procedures for Holders of Treasury Units to recreate Corporate Units, the applicable procedures for Holders of Corporate
Units to effect Early Settlement with respect to their Purchase Contracts and any other applicable procedures, including the procedures that must be followed by a holder of a Separate Note in the case of a Failed Remarketing if such holder of
Separate Notes wishes to exercise its Put Right.
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(iii) The Purchase Contract Agent, based on the notices specified pursuant to Section
5.03(a)(iv), shall notify the Remarketing Agent(s) in writing, promptly after 4:00 p.m. (New York City time) on the Business Day immediately preceding the first day of the Final Remarketing Period, of the aggregate principal amount of Notes
underlying the Pledged Applicable Ownership Interests in Notes that are to be remarketed, and the Custodial Agent shall notify in writing the Remarketing Agent(s) of the aggregate principal amount of Separate Notes (if any) to be remarketed
pursuant to Section 5.02(d). Upon receipt of notice from the Purchase Contract Agent and the Custodial Agent, in each case, as set forth in this Section 5.02(b)(iii), the Remarketing Agent(s) shall, on each Remarketing Date in the Final
Remarketing Period, use commercially reasonable efforts to remarket, as provided in the Remarketing Agreement, such Notes and such Separate Notes at the applicable Remarketing Price. The Corporation shall use commercially reasonable efforts to
give the U.S. Indenture Trustee at least a five (5) Business Days advance notice of the expected Remarketing Date in connection with the Final Remarketing.
(iv) [Reserved.]
(v) If the Remarketing Agent(s) is able to remarket such Notes and the Separate Notes (if
any) for at least the applicable Remarketing Price in any Final Remarketing in accordance with the Remarketing Agreement (a “Successful Final Remarketing”),
the Corporation shall notify the Collateral Agent and the Custodial Agent thereof and upon receipt of such notice, the Collateral Agent shall cause the Securities Intermediary to Transfer to the Remarketing Agent(s) the remarketed Notes
underlying the Pledged Applicable Ownership Interests in Notes upon confirmation of deposit to the Collateral Account of proceeds of such Successful Final Remarketing attributable to such Notes, and the Custodial Agent shall Transfer the
remarketed Separate Notes to the Remarketing Agent(s) upon confirmation of deposit to the Separate Notes Account of proceeds of such Successful Final Remarketing attributable to such Separate Notes. Settlement shall occur on the Remarketing
Settlement Date. Upon deposit in the Collateral Account of such proceeds attributable to the remarketed Notes underlying the Pledged Applicable Ownership in Notes, the Collateral Agent shall, on the Purchase Contract Settlement Date instruct the
Securities Intermediary to (1) remit to the Corporation a portion of such proceeds equal to the aggregate principal amount of remarketed Notes underlying Pledged Applicable Ownership Interests in Notes to satisfy in full the Obligations of
Holders of the related Corporate Units to pay the Purchase Price for the Common Shares under the related Purchase Contracts and (2) promptly remit the balance of such proceeds to the Purchase Contract Agent for payment to the Holders of such
Corporate Units, whereupon the Purchase Contract Agent shall make such payment on the Purchase Contract Settlement Date to such Holders pro rata in accordance with their interests. In addition, on the Purchase Contract Settlement Date, the Securities Intermediary shall deliver to the Collateral Agent for distribution to the Holders of Corporate Units who have elected Cash
Settlement, and paid the Purchase Price as required by Section 5.03(a)(ii), the Notes underlying the Applicable Ownership Interest in Notes underlying such Corporate Units. With respect to any Separate Notes remarketed, upon receipt of proceeds
attributable to remarketed Separate Notes, the Custodial Agent shall remit such proceeds of the Successful Final Remarketing received from the Remarketing Agent(s) pro rata to the holders of such Separate Notes on the Purchase Contract Settlement Date in accordance with the instructions provided by such holders in the form of Exhibit K.
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(vi) Following a Successful Final Remarketing, the Remarketing Agent(s) shall remit (1) the
proceeds attributable to the remarketed Notes underlying the Pledged Applicable Ownership Interest in Notes to the Collateral Agent and (2) the proceeds attributable to the remarketed Separate Notes to the Custodial Agent for the benefit of the
Holders of Separate Notes that had their Notes remarketed.
(vii) If there is a Successful Final Remarketing, the Corporation shall cause a notice of the
Successful Final Remarketing to be provided to the Purchase Contract Agent, Collateral Agent and Custodial Agent and to be published no later than 9:00 a.m., New York City time, on the Business Day immediately following the Final Remarketing
Date. This notice shall include the Reset Rate. This notice shall be validly published by a timely press release to an appropriate Canadian and U.S. news agency and by furnishing such information with the Securities and Exchange Commission in a
Form 6-K and filing such information with Canadian Securities Regulators on SEDAR.
(viii) In connection with any Successful Final Remarketing, the Corporation shall cause all
accrued and unpaid interest to be paid to the Holders of the Notes, as of the relevant Record Date (as defined in the Indenture) (whether or not such Notes were remarketed in such Successful Final
Remarketing), on the Purchase Contract Settlement Date in Cash.
(ix) If, in spite of its commercially reasonable efforts, the Remarketing Agent(s) cannot
remarket the Notes during the Final Remarketing Period at a price equal to or greater than the applicable Remarketing Price, a condition precedent set forth in the Remarketing Agreement is not fulfilled or a Successful Final Remarketing has not
occurred for any other reason, the Remarketing will be deemed to have failed (a “Failed Final Remarketing”).
Following a Failed Final Remarketing, as of the Purchase Contract Settlement Date, each Holder of any Pledged Applicable Ownership Interests in Notes, unless such Holder has (A) provided written
notice in substantially the form of Exhibit M hereto prior to 4:00 p.m. (New York City time) on the second Business Day immediately preceding the Purchase Contract Settlement Date of its intention to settle the related Purchase Contract with
separate cash, (B) surrendered the Certificate evidencing the Corporate Units (if they are in certificated form) or the related Book-Entry Interests, to the Purchase Contract Agent prior to 4:00 p.m., New York City time, on the second Business Day
immediately preceding the Purchase Contract Settlement Date and (C) on or prior to the Business Day immediately preceding the Purchase Contract Settlement Date delivered the Purchase Price in Cash to the Securities Intermediary for deposit in the
Collateral Account by certified or cashier’s check or wire transfer in immediately available funds payable to or upon the order of the Securities Intermediary (which settlement may only be effected in integral multiples of 20 Corporate Units),
shall be deemed to have exercised such Holder’s Put Right with respect to the Notes underlying such Pledged Applicable Ownership Interests in Notes and to have elected to apply the proceeds of the Put Price against such Holder’s obligation to pay
the aggregate Purchase Price for the Common Shares to be issued under the related Purchase Contracts in full satisfaction of such Holders’ Obligations under such Purchase Contracts. Following such application, each such Holder’s Obligations will
be deemed to be satisfied in full, and the Collateral Agent shall cause the Securities Intermediary to release the Notes underlying such Pledged Applicable Ownership Interests in Notes from the Collateral Account and shall promptly transfer such
Notes to the Corporation.
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Upon (x) receipt by the Collateral Agent of a notice from the Purchase Contract Agent in substantially the form of Exhibit N hereto promptly after the receipt by the Purchase Contract Agent of a
notice from a Holder of Corporate Units that such Holder has elected, in accordance with the first sentence of the immediately preceding paragraph, to settle the related Purchase Contract with separate cash and (y) payment by such Holder to the
Securities Intermediary of the Purchase Price in accordance with the first sentence of the immediately preceding paragraph, in lieu of exercise of such Holder’s Put Right, the Securities Intermediary shall give the Purchase Contract Agent and the
Collateral Agent notice of the receipt of such payment in substantially the form of Exhibit O hereto and the Collateral Agent shall, and is hereby authorized to, or to cause the Securities Intermediary to (X) deposit the separate cash received from
such Holder in the Collateral Account and, if the Corporation so requests and the Collateral Agent and Securities Intermediary consent thereto, invest such separate cash received in Permitted Investments consistent with the instructions of the
Corporation with respect to Cash Settlement, (Y) promptly release from the Pledge the Notes underlying the Applicable Ownership Interest in Notes related to the Corporate Units as to which such Holder has paid such separate cash and (Z) promptly
Transfer all such Notes to the Purchase Contract Agent for distribution to such Holder as instructed by such Holder to the Purchase Contract Agent in accordance with the terms provided for herein, in each case, free and clear of the Pledge created
hereby, whereupon the Purchase Contract Agent shall Transfer such Notes in accordance with written instructions provided by the Holder thereof or, if no such instructions are given to the Purchase Contract Agent by the Holder, the Purchase Contract
Agent shall hold such Notes, and any interest payment thereon, in the name of the Purchase Contract Agent or its nominee in trust for the benefit of such Holder until the expiration of the time period specified in the relevant abandoned property
laws of the state where such Notes and interest payments thereon, if any, are held. On the Purchase Contract Settlement Date, the Collateral Agent shall, and is hereby authorized to, (A) instruct the Securities Intermediary to remit to the
Corporation the separate cash amount or such portion of the proceeds of such Permitted Investments as is equal to the aggregate Purchase Price under all Purchase Contracts in respect of which separate cash has been paid as provided in this Section
5.02(b)(ix), as the case may be, to the Corporation, and (B) release any amounts in excess of such amount earned from such Permitted Investments (if any) to the Purchase Contract Agent for distribution to the Holders who have paid such separate
cash pro rata in proportion to the amount paid by such Holders under this Section 5.02(b)(ix), as adjusted to reflect the period of time that each such Holder’s cash was invested in such Permitted
Investments. For the avoidance of doubt, nothing in this Section 5.02(b)(ix) shall prevent holders of Separate Notes from exercising their Put Right after a Failed Final Remarketing.
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(x) The Corporation has the right to postpone the Final Remarketing in the Corporation’s
sole and absolute discretion on any day prior to the last three Business Days of the Final Remarketing Period.
(xi) If a Successful Remarketing has not occurred on or prior to the last day of the Final
Remarketing Period, the Corporation shall cause a notice of the Failed Remarketing to be provided to the Purchase Contract Agent, Collateral Agent and Custodial Agent and to be published no later than 9:00 a.m., New York City time, on the
Business Day immediately following the last day of the Final Remarketing Period. This notice shall be validly published by a timely press release to an appropriate Canadian and U.S. news agency and by furnishing such information with the
Securities and Exchange Commission in a Form 6-K and filing such information with Canadian Securities Regulators on SEDAR.
(xii) The Corporation will pay the Remarketing Fee in connection with any Successful Final
Remarketing. Holders whose Notes are part of a Successful Final Remarketing will not be responsible for payment of the Remarketing Fee.
(xiii) Following the occurrence of a Successful Final Remarketing, proceeds attributable to
the remarketed Notes underlying the Pledged Applicable Ownership in Notes will be substituted as Collateral for the Pledged Applicable Ownership Interests in Notes and will be held by the Collateral Agent in accordance with the terms hereof to
secure the Obligations of each Holder of Corporate Units, and the Collateral Agent shall have such security interests, rights and obligations with respect to such proceeds as the Collateral Agent had in respect of the Pledged Applicable Ownership
Interests in Notes.
(c) [Reserved.]
(d) At any time following notice by the Corporation of a Remarketing, other than during a Blackout Period,
holders of Separate Notes may elect to have their Separate Notes remarketed in such Remarketing in the same manner as the Notes included in Corporate Units by delivering their Separate Notes along with a notice of this election, substantially in
the form of Exhibit K attached hereto, to the Custodial Agent. The Custodial Agent shall hold the Separate Notes in an account separate from the Collateral Account in which any Pledged Applicable Ownership Interests in Notes and/or any Pledged
Treasury Securities shall be held. Holders electing to have their Separate Notes remarketed shall also have the right to withdraw the election, other than during a Blackout Period, by written notice to the Custodial Agent, substantially in the
form of Exhibit L hereto, at any time prior to 4:00 p.m., New York City time, on the second Business Day immediately preceding the first day of the Applicable Remarketing Period. In the event of a Successful Remarketing during the Optional
Remarketing Period, each holder of Separate Notes that elects to have its Notes remarketed shall receive for each $1,000 principal amount of Notes, the Remarketing Price Per Note. In the event of a Successful Remarketing during the Final
Remarketing Period, each holder of Separate Notes that elects to have its Notes remarketed shall receive its pro rata portion of the proceeds
of such Successful Remarketing attributable to remarketed Separate Notes pursuant to 5.02(b)(v), which shall be, for each $1,000 principal amount of Notes, at least equal to $1,000 in cash. Any accrued and unpaid interest on such Notes shall be
paid in cash by the Corporation on the Purchase Contract Settlement Date.
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(e) For the avoidance of doubt, the right of each holder of the Notes underlying the aggregate Applicable
Ownership Interests in Notes that are components of Corporate Units (who, in the case of a Final Remarketing, have not elected Cash Settlement, and paid the Purchase Price in Cash to the Securities Intermediary, pursuant to Section 5.03) and the
Separate Notes, the holders of which have elected to participate in any Remarketing, to have such Notes remarketed during the Applicable Remarketing Period and sold on the Optional Remarketing Date or Final Remarketing Date, as the case may be,
shall be subject to the conditions that (i) (1) the Remarketing Agent(s) conducts an Optional Remarketing, or (2) in the case of a Final Remarketing, that no Successful Optional Remarketing has occurred, each pursuant to the terms of this
Agreement, (ii) a Termination Event has not occurred prior to the Optional Remarketing Date or Final Remarketing Date, as the case may be, (iii) the Remarketing Agent(s) is able to find a purchaser or purchasers for such Notes at the applicable
Remarketing Price based on the Reset Rate and (iv) each condition precedent to settlement of the remarketed Notes set forth in the Remarketing Agreement is satisfied or waived.
(f) The Corporation agrees to use its commercially reasonable efforts to ensure that, (i) if required by
applicable law in the United States, a registration statement (including a prospectus) under the Securities Act with regard to the full amount of the Notes to be remarketed in any Remarketing shall be effective with the Securities and Exchange
Commission in a form that may be used by the Remarketing Agent(s) in connection with such Remarketing (unless such registration statement is not required under the applicable laws and regulations that are in effect at that time or unless the
Corporation conducts any Remarketing in accordance with an exemption under the Securities Act) and (ii) if required by applicable Canadian Securities Laws, a final Canadian prospectus, for the same purpose, shall be effective with applicable
Canadian Securities Regulators (unless such a final Canadian prospectus is not required under applicable Canadian Securities Laws and regulations that are in effect at that time or unless the Corporation conducts any Remarketing in accordance
with an exemption under applicable Canadian Securities Laws).
Section 5.03. Cash Settlement; Payment of Purchase Price. (a)
(i) Unless (1) a Termination Event has occurred, (2) a Holder effects an Early Settlement or a Fundamental Change Early Settlement of the underlying Purchase Contract or (3) a Successful Optional Remarketing has occurred, each Holder of Corporate
Units shall have the right, subject to the conditions set forth below and Section 5.02(b)(ix), to satisfy such Holder’s Obligations on the Purchase Contract Settlement Date with separate cash. Each Holder of Corporate Units who intends to pay
separate cash to satisfy such Holder’s Obligations under the Purchase Contract on the Purchase Contract Settlement Date must so notify the Purchase Contract Agent by presenting and surrendering at the Corporate Trust Office (1) the Certificate
evidencing the Corporate Units (if they are in certificated form) or the related Book-Entry Interests, and (2) a “Notice to Settle with Cash” substantially
in the form of Exhibit E hereto completed and executed as indicated, in each case, at any time on or after the date the Corporation gives notice of a Final Remarketing and prior to 4:00 p.m. (New York City time) on the second Business Day
immediately preceding the first day of the Final Remarketing Period. Corporate Units Holders may only effect such a Cash Settlement pursuant to this Section 5.03(a) in integral multiples of 20 Corporate Units.
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(ii) A Holder of a Corporate Unit who has so notified the Purchase Contract Agent of its
intention to effect a Cash Settlement in accordance with Section 5.03(a)(i) above shall pay the Purchase Price to the Securities Intermediary for deposit in the Collateral Account prior to 4:00 p.m. (New York City time) on the first Business Day
immediately preceding the first day of the Final Remarketing Period, in Cash by certified or cashier’s check or wire transfer in immediately available funds payable to or upon the order of the Securities Intermediary.
(iii) If a Holder of a Corporate Unit fails to notify the Purchase Contract Agent of its
intention to make a Cash Settlement in accordance with Section 5.03(a)(i), or does notify the Purchase Contract Agent as provided in Section 5.03(a)(i) of its intention to pay the Purchase Price with separate cash but fails to make such payment
as required by Section 5.03(a)(ii), such Holder shall be deemed to have consented to the disposition of the Notes underlying the Pledged Applicable Ownership Interests in Notes pursuant to any Remarketing occurring in the Final Remarketing Period
as set forth in Section 5.02(b).
(iv) Promptly after 4:00 p.m. (New York City time) on the first Business Day immediately
preceding the first day of the Final Remarketing Period, the Purchase Contract Agent, based on notices received by the Purchase Contract Agent pursuant to Section 5.03(a)(i) and notice from the Securities Intermediary regarding cash received by
it prior to such time, shall notify the Collateral Agent of the aggregate principal amount of Notes to be remarketed in any Remarketing occurring in the Final Remarketing Period in a notice substantially in the form of Exhibit J hereto.
(v) Upon (1) receipt by the Collateral Agent of a notice in the form of Exhibit J from the
Purchase Contract Agent (delivered pursuant to clause (iv) above) after the receipt by the Purchase Contract Agent of a notice in the form of Exhibit E from a Holder of Corporate Units that such Holder has elected, in accordance with Section
5.03(a)(i), to effect a Cash Settlement and (2) the payment by such Holder of the Purchase Price in accordance with Section 5.03(a)(ii) above, then the Collateral Agent shall:
(A) if the Corporation so requests, instruct the Securities Intermediary promptly to invest
any such Cash in Permitted Investments consistent with the instructions of the Corporation as provided for below in this Section 5.03(a)(v);
(B) release from the Pledge the Notes underlying the Applicable Ownership Interest in Notes
related to the Corporate Units as to which such Holder has effected a Cash Settlement; and
(C) instruct the Securities Intermediary to Transfer all such Notes to the Purchase Contract
Agent for distribution to such Holder as instructed by such Holder to the Purchase Contract Agent in accordance with the terms provided for herein, in each case free and clear of the Pledge created hereby, whereupon the Purchase Contract Agent
shall promptly Transfer such Notes in accordance with written instructions provided by the Holder thereof or, if no such instructions are given to the Purchase Contract Agent by the Holder, the Purchase Contract Agent shall hold such Notes, and
any interest payment thereon, in the name of the Purchase Contract Agent or its nominee in trust for the benefit of such Holder until the expiration of the time period specified in the relevant abandoned property laws of the state where such
Notes and interest payments thereon, if any, are held.
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The Corporation shall instruct the Collateral Agent in writing as to the type of Permitted Investments (if any) in which any such Cash shall be invested; provided, however, that if
the Corporation fails to deliver such written instructions by 9:00 a.m. (New York City time) on the day such Cash is received by the Collateral Agent or to be reinvested by the Securities Intermediary, the Collateral Agent shall instruct the
Securities Intermediary to invest such Cash in the Permitted Investments (if any) which have been designated by the Corporation in writing from time to time in a standing instruction to the Collateral Agent which shall be effective until revoked or
superseded. If no such standing instruction exists, such Cash shall remain uninvested and the Purchase Contract Agent shall have no liability for interest on such uninvested funds. In no event shall the Collateral Agent or Securities Intermediary
be liable for the selection of Permitted Investments or for investment losses incurred thereon. The Collateral Agent and Securities Intermediary shall have no liability in respect of losses incurred as a result of the failure of the Corporation to
provide timely written investment direction.
On the Purchase Contract Settlement Date, the Collateral Agent shall, and is hereby authorized to, (A) instruct the Securities Intermediary to remit to the Corporation the separate cash amount or
such portion of the proceeds of such Permitted Investments as is equal to the aggregate Purchase Price under all Purchase Contracts in respect of which Cash Settlement has been effected as provided in this Section 5.03, as the case may be, and (B)
release any amounts in excess of such amount earned from such Permitted Investments to the Purchase Contract Agent for distribution to the Holders who have effected Cash Settlement, pro rata in proportion
to the amount paid by such Holders under Section 5.03(a)(ii), as adjusted to reflect the period of time that each such Holder’s cash was invested in such Permitted Investments.
(b) In the case of a Treasury Unit or a Corporate Unit (if Applicable Ownership Interests in the Treasury
Portfolio have replaced the Applicable Ownership Interests in Notes as a component of such Corporate Unit), if the Pledged Treasury Securities or the appropriate Pledged Applicable Ownership Interests in the Treasury Portfolio held by the
Securities Intermediary mature during the period from, and including, the fifth Business Day immediately preceding the Purchase Contract Settlement Date to, and including, the Business Day immediately preceding the Purchase Contract Settlement
Date, the principal amount of the Treasury Securities or the appropriate Pledged Applicable Ownership Interests in the Treasury Portfolio received by the Securities Intermediary may be invested in Permitted Investments (if any), which have been
designated by the Corporation in writing from time to time in a standing instruction to the Securities Intermediary which shall be effective until revoked or superseded. If no such standing instruction exists or the instruction is unclear, such
Cash shall remain uninvested. On the Purchase Contract Settlement Date, an amount equal to the Purchase Price for all related Purchase Contracts shall be remitted to the Corporation as payment of such Holder’s Obligations under such Purchase
Contracts without receiving any instructions from the Holder. In the event the sum of the Proceeds from either the related Pledged Treasury Securities or the related Pledged Applicable Ownership Interests in the Treasury Portfolio and the
Proceeds from such Permitted Investments is in excess of the aggregate Purchase Price, the Collateral Agent shall cause the Securities Intermediary to distribute such excess, when received by the Securities Intermediary, to the Purchase Contract
Agent for the benefit of the Holders of the related Treasury Units or Corporate Units, as applicable.
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(c) The Obligations of the Holders to pay the Purchase Price are non-recourse obligations and, except to the
extent satisfied by Early Settlement, Fundamental Change Early Settlement or Cash Settlement or terminated upon a Termination Event, are payable solely out of the proceeds of any Collateral pledged to secure the Obligations of the Holders, and in
no event will Holders be liable for any deficiency between the proceeds of the disposition of Collateral and the Purchase Price.
(d) The Corporation shall not be obligated to issue any Common Shares in respect of a Purchase Contract or
deliver any certificates in respect thereof to the Holder of the related Units unless the Corporation shall have received payment of the aggregate Purchase Price for Common Shares to be purchased thereunder in the manner set forth herein.
Section 5.04. Issuance of Common Shares. Unless a Termination
Event, an Early Settlement or a Fundamental Change Early Settlement shall have occurred, subject to Section 5.05(b), on the Purchase Contract Settlement Date, upon the Corporation’s receipt of the aggregate Purchase Price payable on all
Outstanding Units in accordance with Section 5.02 or 5.03, the Corporation shall issue and deposit with the Purchase Contract Agent, for the benefit of the Holders of the Outstanding Units, one or more certificates representing newly issued
Common Shares registered in the name of the Purchase Contract Agent (or its nominee) as custodian for the Holders or their designees (such certificates for Common Shares, together with any dividends or distributions for which a record date and
payment date for such dividend or distribution has occurred on or after the Purchase Contract Settlement Date, being hereinafter referred to as the “Purchase Contract Settlement Fund”) to which the Holders are entitled hereunder.
Subject to the foregoing, following book-entry transfer of a Unit or surrender of a Certificate, as the case may be, to the Purchase Contract Agent on or after the Purchase Contract Settlement
Date, Early Settlement Date or the date on which the Fundamental Change Early Settlement Right is exercised, as the case may be, together with settlement instructions thereon duly completed and executed, the Holder of the relevant Unit shall on the
applicable Settlement Date (or, if later, the date of such book-entry transfer of the Unit or such surrender of the Certificate) be entitled to receive forthwith in exchange therefor book-entry transfer of beneficial interests in, or a certificate
representing, that number of newly issued whole Common Shares which such Holder is entitled to receive pursuant to the provisions of this Article 5 (after taking into account all Units then held by such Holder), together with cash in lieu of
fractional shares as provided in Section 5.09 and, in the case of a settlement on the Purchase Contract Settlement Date, any dividends or distributions with respect to such shares constituting part of the Purchase Contract Settlement Fund, but
without any interest thereon, and the number of Units represented by the Global Certificate shall be appropriately reduced in accordance with Applicable Procedures and standing arrangements between the Depository and the Purchase Contract Agent, or
the Certificate so surrendered shall forthwith be cancelled, as the case may be. Such shares shall be registered in the name of, or book-entry interests therein shall be transferred to, the Holder or the Holder’s designee as specified in the
settlement instructions provided by the Holder to the Purchase Contract Agent. If any Common Shares issued in respect of a Purchase Contract are to be registered in the name of, or beneficial interests therein are transferred to, a Person other
than the Person in whose name the Certificate evidencing such Purchase Contract is registered or the beneficial owner thereof, no such registration or transfer shall be made unless and until the Person requesting such registration or transfer shall
have paid to the Corporation the amount of any transfer and other taxes (including any applicable stamp taxes) required by reason of such registration in a name other than that of, or transfer to a Person other than, the registered Holder of the
Certificate evidencing such Purchase Contract or beneficial owner thereof or has established to the satisfaction of the Corporation that such tax either has been paid or is not payable.
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Section 5.05. Adjustment of each Fixed Settlement Rate. (a)
Each Fixed Settlement Rate shall be subject to the following adjustments:
(i) If the Corporation pays or makes a dividend or other distribution on the Common Shares
to all or substantially all holders of Common Shares in Common Shares, each Fixed Settlement Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or
other distribution shall be increased by dividing each Fixed Settlement Rate by a fraction,
(A) the numerator of which shall be the number of Common Shares outstanding at the close of
business on the date fixed for such determination; and
(B) the denominator of which shall be the sum of such number of Common Shares and the total
number of Common Shares constituting such dividend or other distribution.
Any adjustment made under this clause (i) shall become effective immediately after the opening of business on the day following the date fixed for the determination of shareholders entitled to
receive such dividend or other distribution. If any dividend or distribution of the type described in this clause (i) is declared but not so paid or made, each Fixed Settlement Rate shall be immediately readjusted, effective as of the date the
Board of Directors determines not to pay or make such dividend or distribution, to the Fixed Settlement Rate that would then be in effect if such dividend or distribution had not been declared.
(ii) If the Corporation issues to all or substantially all holders of the Common Shares
rights, options, warrants or other securities (other than pursuant to a dividend reinvestment, share purchase or similar plan), entitling them to subscribe for or purchase Common Shares for a period expiring within 45 days from the date of
issuance of such rights, options, warrants or other securities at a price per Common Share less than the Current Market Price calculated as of the date fixed for the determination of shareholders entitled to receive such rights, options, warrants
or other securities, each Fixed Settlement Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by dividing each Fixed Settlement Rate by a fraction,
(A) the numerator of which shall be the number of Common Shares outstanding at the close of
business on the date fixed for such determination plus the number of Common Shares which the aggregate consideration expected to be received by the
Corporation upon the exercise of such rights, options, warrants or other securities would purchase at such Current Market Price; and
(B) the denominator of which shall be the number of Common Shares outstanding at the close of
business on the date fixed for such determination plus the number of Common Shares so offered for subscription or purchase pursuant to such rights,
options, warrants or other securities.
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Any increase in the Fixed Settlement Rates made pursuant to this clause (ii) shall become effective immediately after the opening of business on the day following the date fixed for the
determination of shareholders entitled to receive such rights, options, warrants or other securities. To the extent such rights, options, warrants or other securities are not exercised or converted prior to the expiration of the exercisability or
convertibility thereof (and as a result no additional Common Shares are delivered or issued pursuant to such rights, options, warrants or other securities), each new Fixed Settlement Rate shall be readjusted, effective as of the date of such
expiration, to the Fixed Settlement Rate that would then be in effect had the increase with respect to the issuance of such rights, options, warrants or other securities been made on the basis of delivery or issuance of only the number of Common
Shares actually delivered.
For purposes of this clause (ii), in determining whether any rights, options, warrants or other securities entitle the holders thereof to subscribe for or purchase Common Shares at less than the
Current Market Price per Common Share on the date fixed for the determination of shareholders entitled to receive such rights, options, warrants or other securities, and in determining the aggregate price payable to exercise such rights, options,
warrants or other securities, there shall be taken into account any consideration the Corporation receives for such rights, options, warrants or other securities and any amount payable on exercise or conversion thereof, with the value of such
consideration, if other than cash, to be determined in good faith by the Board of Directors.
(iii) If outstanding Common Shares shall be subdivided, split or reclassified into a greater
number of Common Shares, each Fixed Settlement Rate in effect at the opening of business on the day following the day upon which such subdivision, split or reclassification becomes effective shall be proportionately increased, and, conversely, in
case outstanding Common Shares shall each be combined or reclassified into a smaller number of Common Shares, each Fixed Settlement Rate in effect at the opening of business on the day following the day upon which such combination or
reclassification becomes effective shall be proportionately reduced.
(iv) If the Corporation, by dividend or otherwise, distributes to all or substantially all
holders of the Common Shares evidences of the Corporation’s indebtedness, assets, or securities (but excluding any rights, options, warrants or other securities referred to in clause (ii) of this Section 5.05(a), any dividend or distribution paid
exclusively in cash referred to in clause (v) below of this Section 5.05(a) (in each case, whether or not an adjustment to the Fixed Settlement Rates is required by such clause), and any dividend paid in shares of any class or series, or similar
equity interests, of or relating to a subsidiary or other business unit of the Corporation in the case of a Spin-Off referred to below, or dividends or distributions referred to in clause (i) of this Section 5.05(a)), each Fixed Settlement Rate
in effect immediately prior to the close of business on the date fixed for the determination of shareholders entitled to receive such dividend or distribution shall be increased by dividing each Fixed Settlement Rate by a fraction,
(A) the numerator of which shall be the Current Market Price of the Common Shares calculated as
of the date fixed for such determination less the then fair market value (as determined in good faith by the Board of Directors) of the portion of the
assets, securities or evidences of indebtedness so distributed applicable to one Common Share; and
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(B) the denominator of which shall be such Current Market Price.
Any increase made under the preceding portion of this clause (iv) shall become effective immediately after the close of business on the date fixed for the determination of shareholders entitled to
receive such dividend or distribution. Notwithstanding the foregoing, if the then fair market value (as determined in good faith by the Board of Directors) of the portion of the assets, securities or evidences of indebtedness so distributed
applicable to one Common Share exceeds the Current Market Price of the Common Shares on the date fixed for the determination of shareholders entitled to receive such distribution, in lieu of the foregoing increase, each Holder shall receive, for
each Purchase Contract included in such Holder’s Units, at the same time and upon the same terms as holders of the Common Shares, the amount of such distributed assets, securities or evidences of indebtedness that such Holder would have received if
such Holder owned a number of Common Shares equal to the Maximum Settlement Rate on the record date for such dividend or distribution.
In the case of the payment of a dividend or other distribution on the Corporation’s Common Shares in the form of any class or series in the capital, or similar equity interests of, or relating to,
a subsidiary or other business unit of the Corporation, which are or will, upon issuance, be listed on a U.S. or Canadian securities exchange or quotation system (a “Spin-Off”), each Fixed Settlement Rate in effect immediately before the
close of business on the date fixed for determination of shareholders entitled to receive such dividend or distribution will be increased by dividing each Fixed Settlement Rate by a fraction,
(A) the numerator of which is the Current Market Price of the Common Shares; and
(B) the denominator of which is such Current Market Price plus the Fair Market Value (determined as set forth below) of the capital or similar equity interests so distributed applicable to one Common Share.
The adjustment to each Fixed Settlement Rate under the immediately preceding paragraph will occur on (A) the 10th Trading Day from and including the effective date of the Spin-Off; or (B) if the
Spin-Off is effected simultaneously with an Initial Public Offering of the securities being distributed in the Spin-Off and the Ex Date for the Spin-Off occurs on or before the date that the Initial Public Offering price of the securities being
distributed in the Spin-Off is determined, the issue date of the securities being offered in such Initial Public Offering. For purposes of this section, “Initial Public Offering” means the first time securities of the same class or type as
the securities being distributed in the Spin-Off are offered to the public for cash.
Subject to the immediately following paragraph, the “Fair Market Value” of the securities to be distributed to holders of the Common Shares means the average of the closing sale prices (in
U.S. dollars or as converted to U.S. dollars based on the Prevailing Exchange Rate on the applicable Trading Day) of those securities on the principal U.S. or Canadian securities exchange or quotation system on which such securities are listed or
quoted at that time over the first 10 Trading Days following the effective date of the Spin-Off. For purposes of such a Spin-Off, the “Current Market Price” of the Common Shares means the average of the closing prices (in U.S. dollars or as
converted to U.S. dollars based on the Prevailing Exchange Rate on the applicable Trading Day) of the Common Shares on the Principal Exchange at that time over the first 10 Trading Days following the effective date of the Spin-Off.
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If, however, an Initial Public Offering of the securities being distributed in the Spin-Off is to be effected simultaneously with the Spin-Off and the Ex Date for the Spin-Off occurs on or before
the date that the Initial Public Offering price of the securities being distributed in the Spin-Off is determined, the “Fair Market Value” of the securities being distributed in the Spin-Off means the Initial Public Offering price (in U.S.
dollars or as converted to U.S. dollars based on the Prevailing Exchange Rate on the applicable Trading Day), while the “Current Market Price” of the Common Shares means the closing price of the Common Shares on the Principal Exchange at
that time on the Trading Day on which the Initial Public Offering price of the securities being distributed in the Spin-Off is determined.
If any dividend or distribution described in this clause (iv) is declared but not so paid or made, the new Fixed Settlement Rates shall be readjusted, as of the date the Board of Directors
determines not to pay or make such dividend or distribution, to the Fixed Settlement Rates that would then be in effect if such dividend or distribution had not been declared.
For purposes of this clause (iv) (and subject in all respect to clause (x) below), rights, options or warrants distributed by the Corporation to all holders of the Common Shares entitling them to
subscribe for or purchase shares in the capital of the Corporation, including Common Shares (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (“Trigger Event”):
(a) are deemed to be transferred with such Common Shares; (b) are not exercisable; and (c) are also issued in respect of future issuances of Common Shares, shall be deemed not to have been distributed for purposes of this clause (iv) (and no
adjustment to the Fixed Settlement Rates under this clause (iv) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment
(if any is required) to the Fixed Settlement Rates shall be made under this clause (iv). If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the date of this Agreement, are subject to
events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be
the date of distribution and record date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the
holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentence) with respect thereto that
was counted for purposes of calculating a distribution amount for which an adjustment to the Fixed Settlement Rates under this clause (iv) was made, (1) in the case of any such rights, options or warrants that shall all have been redeemed or
purchased without exercise by any holders thereof, upon such final redemption or purchase (x) the Fixed Settlement Rates shall be readjusted as if such rights, options or warrants had not been issued and (y) the Fixed Settlement Rates shall then
again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder or holders of Common
Shares with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Shares as of the date of such redemption or purchase, and (2) in the case of such rights,
options or warrants that shall have expired or been terminated without exercise by any holders thereof, the Fixed Settlement Rates shall be readjusted as if such rights, options and warrants had not been issued.
For purposes of clause (i), clause (ii) and this clause (iv), if any dividend or distribution to which this clause (iv) is applicable also includes one or both of:
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(A) a dividend or distribution of Common Shares to which clause (i) is applicable (the “Clause (i) Distribution”); or
(B) a dividend or distribution of rights, options or warrants to which clause (ii) is
applicable (the “Clause (ii) Distribution”),
then, in either case, (1) such dividend or distribution, other than the Clause (i) Distribution and the Clause (ii) Distribution, shall be deemed to be a dividend or distribution to which this clause (iv) is
applicable (the “Clause (iv) Distribution”) and any Fixed Settlement Rate adjustment required by this clause (iv) with respect to such Clause (iv) Distribution shall then be made, and (2) the Clause (i) Distribution and Clause (ii)
Distribution shall be deemed to immediately follow the Clause (iv) Distribution and any Fixed Settlement Rate adjustment required by clause (i) and clause (ii) with respect thereto shall then be made, except that, if determined by the Corporation
(I) the record date of the Clause (i) Distribution and the Clause (ii) Distribution shall be deemed to be the record date of the Clause (iv) Distribution and (II) any Common Shares included in the Clause (i) Distribution or Clause (ii) Distribution
shall be deemed not to be “outstanding at the close of business on the date fixed for such determination” within the meaning of clause (i) or clause (ii).
(v) If the Corporation, by dividend or otherwise, makes distributions to all or substantially
all holders of the Common Shares exclusively in cash during any quarterly period in an amount (in U.S. dollars or as converted to U.S. dollars based on the Prevailing Exchange Rate on the applicable payment date) that exceeds $0.1706 per Common
Share per quarter in the case of a regular quarterly dividend (such per Common Share amount being referred to as the “Reference Dividend”), then
immediately after the close of business on the date fixed for determination of the shareholders entitled to receive such distribution, each Fixed Settlement Rate in effect immediately prior to the close of business on such date shall be increased
by dividing each Fixed Settlement Rate by a fraction,
(A) the numerator of which shall be equal to the Current Market Price on the date fixed for
such determination less the amount, if any, by which the per share amount of the distribution exceeds the Reference Dividend; and
(B) the denominator of which shall be equal to such Current Market Price.
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Such increase shall become effective immediately after the close of business on the date fixed for determination of the shareholders entitled to receive such distribution. Notwithstanding the
foregoing, if (x) the amount by which the per Common Share amount of the cash distribution exceeds the Reference Dividend exceeds (y) the Current Market Price of the Common Shares on the date fixed for the determination of shareholders entitled to
receive such distribution, in lieu of the foregoing increase, each Holder shall receive, for each Purchase Contract included in such Holder’s Units, at the same time and upon the same terms as holders of the Common Shares, the amount of distributed
cash that such Holder would have received if such Holder owned a number of Common Shares equal to the Maximum Settlement Rate on the record date for such cash distribution. If such distribution is declared but not so paid or made, each Fixed
Settlement Rate shall be decreased, effective as of the date the Board of Directors determines not to pay or make such distribution, to the Fixed Settlement Rate that would then be in effect if such distribution had not been declared.
The Reference Dividend will be subject to an inversely proportional adjustment (determined in the same manner as the adjustment to the Reference Price and Threshold Appreciation Price set forth
below in clause (vii) of this Section 5.05(a)) whenever each Fixed Settlement Rate is adjusted, other than pursuant to this clause (v). For the avoidance of doubt, the Reference Dividend shall be zero in the case of a cash dividend that is not a
regular quarterly dividend.
(vi) In the case that an issuer bid, a tender offer or exchange offer made by the
Corporation or any subsidiary thereof for all or any portion of the Common Shares shall expire and such bid, tender or exchange offer (as amended through the expiration thereof) shall require the payment to shareholders (based on the acceptance
(up to any maximum specified in the terms of the issuer bid, tender offer or exchange offer) of Purchased Shares) of an aggregate consideration having a fair market value per Common Share that exceeds the Closing Price of the Common Shares on the
Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such issuer bid, tender offer or exchange offer, then, immediately prior to the opening of business on the day after the date of the last time (the “Expiration Time”) tenders or exchanges could have been made pursuant to such issuer bid, tender offer or exchange offer (as amended through the expiration thereof),
each Fixed Settlement Rate in effect immediately prior to the close of business on the date of the Expiration Time shall be increased by dividing each
Fixed Settlement Rate, by a fraction,
(A) the numerator of which shall be equal to (x) the product of (i) the Current Market Price
on the date of the Expiration Time and (ii) the number of Common Shares outstanding (including any Purchased Shares) on the date of the Expiration Time less (y) the amount of cash plus the fair market value of the aggregate consideration (in U.S. dollars or as converted to U.S. dollars based on the Prevailing Exchange Rate on the date of the Expiration Time) payable to shareholders pursuant to the
issuer bid, tender offer or exchange offer (assuming the acceptance of Purchased Shares); and
(B) the denominator of which shall be equal to the product of (x) the Current Market Price on
the date of the Expiration Time and (y) the result of (i) the number of Common Shares outstanding (including any Purchased Shares) on the date of the Expiration Time less (ii) the number of all shares validly tendered, not withdrawn and accepted for payment on the date of the Expiration Time (such actually validly tendered or exchanged shares, up to any maximum acceptance amount specified in the
terms of the tender offer or exchange offer, the “Purchased Shares”).
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In the event the Corporation is, or one of the Corporation’s subsidiaries is, obligated to purchase Common Shares pursuant to any such issuer bid, tender offer or exchange offer, but the
Corporation is, or such subsidiary is permanently prevented by applicable law from effecting any such purchases, or all such purchases are rescinded, then each Fixed Settlement Rate shall be readjusted to the Fixed Settlement Rate that would then
be in effect if such issuer bid, tender offer or exchange offer had not been made.
(vii) (1) If any adjustments are made to each Fixed Settlement Rate pursuant to this Section
5.05(a), an adjustment shall also be made to the Reference Price and the Threshold Appreciation Price solely to determine which of the clauses of the definition of Settlement Rate in Section 5.01(a) will be applicable to determine the Settlement
Rate with respect to the Purchase Contract Settlement Date or any Fundamental Change Early Settlement Date. Such adjustment shall be made by multiplying the Reference Price by a fraction, the numerator of which is the Maximum Settlement Rate
immediately before such adjustment and the denominator of which shall be the Maximum Settlement Rate immediately after such adjustment and by multiplying the Threshold Appreciation Price by a fraction, the numerator of which is the Minimum
Settlement Rate immediately before such adjustment and the denominator of which shall be the Minimum Settlement Rate immediately after such adjustment (rounded, in each case, to the nearest $0.0001). In addition, if any adjustment to the Fixed
Settlement Rates becomes effective, or any effective date, Expiration Time, Ex Date or record date for any stock split or reverse stock split, issuer bid, tender or exchange offer, issuance, dividend or distribution (relating to a required Fixed
Settlement Rate adjustment) occurs, during the period beginning on, and including, (i) the open of business on a first Trading Day of the Market Value Averaging Period or (ii) in the case of Early Settlement or Fundamental Change Early
Settlement, the relevant Early Settlement Date or the date on which the Fundamental Change Early Settlement Right is exercised and, in each case, ending on, and including, the date on which the Corporation delivers Common Shares under the related
Purchase Contract, the Corporation shall make appropriate adjustments to the Fixed Settlement Rates and/or the number of Common Shares deliverable upon settlement of the Purchase Contract, in each case, consistent with the methodology used to
determine the anti-dilution adjustments set forth above in paragraphs (a)(i) to (a)(vi) of this Section 5.05. If any adjustment to the Fixed Settlement Rates becomes effective, or any effective date, Expiration Time, Ex Date or record date for
any stock split or reverse stock split, issuer bid, tender or exchange offer, issuance, dividend or distribution (relating to a required Fixed Settlement Rate adjustment) occurs, during the period used to determine the Share Price or any other
averaging period hereunder, the Corporation shall make appropriate adjustments to the applicable prices, consistent with the methodology used to determine the anti-dilution adjustments set forth above in paragraphs (a)(i) to (a)(vi) of this
Section 5.05.
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(2) No adjustment to the Fixed Settlement Rates will be made pursuant to this Section 5.05(a) if Holders participate, as a result of holding the Units and without having to
settle the Purchase Contracts that form part of the Units, in the transaction that would otherwise give rise to an adjustment as if they held a number of Common Shares per Unit equal to the Maximum Settlement Rate, at the same time and upon the
same terms as the holders of the Common Shares participate in the transaction.
(viii) All adjustments to the Fixed Settlement Rates shall be calculated by the Corporation to
the nearest 1/10,000th of a Common Share. No adjustment to the Fixed Settlement Rates shall be required unless such adjustment would require an increase or decrease of at least one percent in one or both Fixed Settlement Rates; provided, that if any adjustment is not required to be made because it would not change one or both of the Fixed Settlement Rates by at least one percent, the
adjustment shall be carried forward and taken into account in any subsequent adjustment; provided further that notwithstanding whether or not such one percent threshold shall have been met, all such adjustments under this Section 5.05(a) shall be made no later than the time at which the Corporation is required to
determine the relevant Settlement Rate or amount of Make-Whole Shares (if applicable) in connection with any settlement of the Purchase Contracts pursuant to Section 5.01, Section 5.05(b)(ii) or Section 5.08.
(ix) The Corporation may increase the Fixed Settlement Rates, in addition to those required
by this Section 5.05(a), if the Board of Directors deems it advisable in order to avoid or diminish any U.S. income tax (where applicable) to any holders of the Common Shares resulting from any dividend or distribution of shares (or rights to
acquire shares) or from any event treated as a dividend or distribution for U.S. income tax purposes or for any other reasons. The Corporation may only make such a discretionary adjustment if the Corporation makes the same proportionate
adjustment to each Fixed Settlement Rate. Any such discretionary adjustment must be in effect for at least 20 Business Days, and the Corporation shall deliver written notice of the amount of such increase and the number of days for which it will
be in effect to the Holders and Purchase Contract Agent at least 15 days prior to such adjustment taking effect.
(x) To the extent the Corporation has a shareholder rights plan involving the issuance of
share purchase rights or other similar rights (the “Rights”) to all or substantially all holders of the Common Shares in effect upon settlement of a
Purchase Contract, a Holder shall be entitled to receive upon settlement of any Purchase Contract, in addition to the Common Shares issuable upon settlement of such Purchase Contract, the related Rights for the Common Shares under the shareholder
rights plan, unless prior to such settlement, such Rights under the shareholder rights plan have separated from the Common Shares, in which case each Fixed Settlement Rate shall be adjusted at the time of separation as if the Corporation made a
distribution to all holders of the Common Shares as provided in Section 5.05(a)(iv), subject to readjustment in the event of the expiration, termination or redemption of the Rights.
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(b) (i) Following the effective date of a Reorganization Event, the Settlement Rate shall be determined by
reference to the value of an Exchange Property Unit, and the Corporation shall deliver, upon settlement of any Purchase Contract, a number of Exchange Property Units equal to the number of Common Shares that the Corporation would otherwise be
required to deliver hereunder. An “Exchange Property Unit” is the kind and amount of Common Shares, other securities, other property or assets (including
cash or any combination thereof) receivable in such Reorganization Event (without any interest thereon, and without any right to dividends or distributions thereon that have a record date that is prior to the applicable Settlement Date) per
Common Share by a holder of Common Shares that is not a Person with which the Corporation consolidated, merged, arranged or amalgamated, or any other similar transaction or series of related transactions or to which such sale or transfer was
made, as the case may be (any such Person, a “Constituent Person”), or an Affiliate of a Constituent Person to the extent such Reorganization Event
provides for different treatment of Common Shares held by a Constituent Person and/or the Affiliates of a Constituent Person, on the one hand, and non-Affiliates of a Constituent Person, on the other hand. In the event holders of the Common
Shares (other than any Constituent Person or Affiliate thereof) have the opportunity to elect the form of consideration to be received in such transaction, the Exchange Property Unit that Holders of the Corporate Units or Treasury Units are
entitled to receive shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Shares that affirmatively make an election or (y) if no holders of Common Shares affirmatively make
such an election, the types and amounts of consideration actually received by the holders of Common Shares.
In the event of such a Reorganization Event, the Person formed by such consolidation, merger, arrangement or amalgamation or the Person which acquires the assets of the Corporation shall execute
and deliver to the Purchase Contract Agent an agreement supplemental hereto providing that the Holder of each Unit that remains Outstanding after the Reorganization Event (if any) shall have the rights provided by this Section 5.05(b). Such
supplemental agreement shall provide for adjustments to the amount of any securities constituting all or a portion of an Exchange Property Unit and/or adjustments to the Fixed Settlement Rates, which, for events subsequent to the effective date of
such Reorganization Event, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 5.05. The provisions of this Section 5.05(b)(i) shall similarly apply to successive Reorganization Events.
When the Corporation executes a supplemental agreement pursuant to this Section 5.05(b)(i), the Corporation shall promptly file with the Purchase Contract Agent an Officers’ Certificate and an
Opinion of Counsel briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise an Exchange Property Unit after any such Reorganization Event, any adjustments to be made with respect thereto
and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Corporation shall cause notice of the execution of such supplemental agreement to be delivered to each Holder within 20 days
after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental agreement. The Corporation shall not become a party to any Reorganization Event unless its terms are consistent with this
Section 5.05(b)(i).
In connection with any Reorganization Event, the Reference Dividend shall be subject to adjustment as described in clause (A), clause (B) or clause (C) below, as the case may be.
(A) In the case of a Reorganization Event in which the Exchange Property Unit (determined, as appropriate, as set forth above and excluding any dissenters’ appraisal rights) is composed
entirely of common shares (the “Merger Common Shares”), the Reference Dividend at and after the effective time of such Reorganization Event will be equal to (x) the Reference Dividend immediately prior to the effective time of such
Reorganization Event, divided by (y) the number of shares of Merger Common Shares that a holder of one Common Share would receive in such Reorganization Event (such quotient rounded to the nearest $0.0001).
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(B) In the case of a Reorganization Event in which the Exchange Property Unit (determined, as appropriate, as set forth above and excluding any dissenters’ appraisal rights) is composed in
part of shares of Merger Common Shares, the Reference Dividend at and after the effective time of such Reorganization Event will be equal to (x) the Reference Dividend immediately prior to the effective time of such Reorganization Event, multiplied by (y) the Merger Valuation Percentage for such Reorganization Event (such product rounded to the nearest $0.0001).
(C) For the avoidance of doubt, in the case of a Reorganization Event in which the Exchange Property Unit (determined, as appropriate, as set forth above and excluding any dissenters’
appraisal rights) is composed entirely of consideration other than common shares, the Reference Dividend at and after the effective time of such Reorganization Event will be equal to zero.
For purposes of calculating the “value” of an Exchange Property Unit, or any cash, securities or other property included therein, for purposes of (I) this Section 5.05(b)(i) and (II) the
definitions of “Merger Valuation Percentage” and “Fundamental Change,” (x) the value of any cash shall be the face amount thereof, (y) the value of any common shares shall be (A) in the case of clause (I) above, the average of the volume-weighted
average prices of such common shares on each Trading Day during the Market Value Averaging Period (in U.S. dollars or as converted to U.S. dollars based on the Prevailing Exchange Rate on the applicable Trading Day) (subject to Section
5.05(a)(vii)(1)) and (B) in the case of clause (II) above, the Closing Price of such common shares (determined as if references in the definition of “Closing Price” to “Common Shares” referred instead to such common shares) on the relevant
effective date (or, if such day is not a Trading Day, the immediately following Trading Day) and (z) the value of any other property, including securities other than any such common shares, included in the Exchange Property Unit, shall be the fair
market value of such property over the Market Value Averaging Period, in the case of clause (I) above, or on the applicable effective date (or, if such day is not a Trading Day, the immediately following Trading Day), in the case of clause (II)
above (in each case, as determined in good faith by the Board of Directors, whose determination shall be described in a Board Resolution).
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(ii) If a Fundamental Change occurs prior to the 20th Business Day preceding the Purchase
Contract Settlement Date, then following such Fundamental Change, each Holder of a Purchase Contract shall have the right (“Fundamental Change Early Settlement Right”) to accelerate and settle (“Fundamental Change Early Settlement”) such Purchase Contract, upon the conditions set forth below, on the
Fundamental Change Early Settlement Date at the Settlement Rate determined as if the Applicable Market Value equaled the Share Price (as defined below), plus an additional make-whole amount of Common Shares (the “Make-Whole Shares”), subject to adjustment under Section 5.05(a)(vii), and receive payment of cash in lieu of any fraction of a Common Share, as provided in Section 5.09; provided that no Fundamental Change Early Settlement will be permitted pursuant to this Section 5.05(b)(ii) unless, at the time such Fundamental Change Early Settlement
is effected, (i) there is an effective U.S. Registration Statement with respect to any securities to be issued and delivered in connection with such Fundamental Change Early Settlement, if such a U.S. Registration Statement is required (in the
view of counsel, which need not be in the form of a written opinion, for the Corporation) under the Securities Act and (ii) an appropriate Canadian Prospectus has been filed for the same purpose, if required (in the view of counsel, which need
not be in the form of a written opinion, for the Corporation) under applicable Canadian Securities Laws. If such a U.S. Registration Statement and/or Canadian Prospectus is so required, (A) the Corporation shall, promptly after the date on which
the Holder attempts to effect a Fundamental Change Early Settlement, so notify such Holder, and (B) the Corporation agrees to use its commercially reasonable efforts (1) to (x) have in effect throughout the Fundamental Change Exercise Period a
U.S. Registration Statement covering the Common Shares and other securities, if any, to be delivered in respect of the Purchase Contracts being settled and (y) provide a U.S. Prospectus in connection therewith, and/or (2) to prepare, file,
receive a receipt for a deliver a Canadian Prospectus, in each case, in a form that may be used in connection with such Fundamental Change Early Settlement (it being understood that for so long as there is a material business transaction or
development that has not yet been publicly disclosed (but in no event for a period longer than 90 days), the Corporation will not be required to file such U.S. Registration Statement or provide such a U.S. Prospectus or prepare, file or deliver
such a Canadian Prospectus, and a Fundamental Change Early Settlement Right will not be available, until the Corporation has publicly disclosed such transaction or development; provided that the Corporation shall use commercially reasonable efforts to make such disclosure as soon as it is commercially reasonable to do so). In the event that a Holder seeks to exercise its Fundamental Change Early
Settlement Right and a U.S. Registration Statement is required to be effective or Canadian Prospectus is required to be delivered in connection with the exercise of such right but no such U.S. Registration Statement is then effective, no such
Canadian Prospectus has been delivered or a Blackout Period is continuing, the Holder’s exercise of such right shall be void unless and until such a U.S. Registration Statement or U.S. Prospectus is effective or such Canadian Prospectus has been
delivered and, in either case, no Blackout Period is continuing. For the avoidance of doubt, if exercise is so voided, the Holder shall continue to be entitled to Contract Adjustment Payments in respect of the relevant Purchase Contracts. The
Fundamental Change Exercise Period shall be extended by the number of days during such period on which no such U.S. Registration Statement is effective, no such Canadian Prospectus is delivered or a Blackout Period is continuing (provided that the Fundamental Change Exercise Period shall not be extended beyond the fourth Business Day preceding the Purchase Contract Settlement Date)
and the Fundamental Change Early Settlement Date shall be postponed to the second Business Day following the end of the Fundamental Change Exercise Period. If, but for the proviso contained in the immediately preceding sentence, the Fundamental Change Early Settlement Date would occur on or after the Purchase Contract Settlement Date, the Corporation shall deliver to all Holders of Units on
the Purchase Contract Settlement Date the applicable number of Make-Whole Shares in addition to a number of Common Shares equal to the Settlement Rate, determined as if the Applicable Market Value were equal to the relevant Share Price.
73
The Corporation shall provide written notice to Holders of Units and the Purchase Contract Agent of the completion of a Fundamental Change within 10 Business Days after the Effective Date (as
hereinafter defined) of a Fundamental Change, which shall specify (i) an early settlement date (subject to postponement, as set forth above, the “Fundamental Change Early Settlement Date”), which shall be at least 10 days after the date of
the notice but no later than the earlier of (A) 20 days after the date of such notice and (B) one Business Day prior to the Purchase Contract Settlement Date, on which date the Corporation will deliver Common Shares to Holders who exercise the
Fundamental Change Early Settlement Right, (ii) the date by which Holders must exercise the Fundamental Change Early Settlement Right, (iii) the applicable Settlement Rate and number of Make-Whole Shares, (iv) the amount and kind (per Common Share)
of cash, securities and other consideration receivable by the Holder upon settlement and (v) the amount of accrued and unpaid Contract Adjustment Payments (including any deferred Contract Adjustment Payments and Compounded Contract Adjustment
Payments thereon), if any, that will be paid upon settlement to Holders exercising the Fundamental Change Early Settlement Right.
Corporate Units Holders and Treasury Units Holders may only effect Fundamental Change Early Settlement pursuant to this Section 5.05(b)(ii) in integral multiples of 20 Corporate Units or Treasury
Units, as the case may be; provided that if Applicable Ownership Interests in the Treasury Portfolio have replaced Applicable Ownership Interests in Notes as a component of the Corporate Units, Corporate
Units Holders may only effect Fundamental Change Early Settlement pursuant to this Section 5.05(b)(ii) in multiples of 400,000 Corporate Units.
In order to exercise the Fundamental Change Early Settlement Right with respect to any Purchase Contracts, the Holder of the Certificate evidencing Units shall deliver to the Purchase Contract
Agent at the Corporate Trust Office, during the period beginning on the date the Corporation delivers notice that a Fundamental Change has occurred and ending at 4:00 p.m., New York City time, on the second Business Day immediately preceding the
Fundamental Change Early Settlement Date (such period, subject to extension as set forth above, the “Fundamental Change Exercise Period”) a notice of such election in the form attached thereto and such Certificate evidencing its Corporate
Units or Treasury Units if they are held in certificated form, duly endorsed for transfer to the Corporation or in blank with the form of Election to Fundamental Change Early Settlement on the reverse thereof duly completed, and payment of the
Purchase Price for each Purchase Contract being settled in immediately available funds (the “Relevant Purchase Price”).
In the event that Units are held by or through DTC or another Depository, the exercise of the right to effect Fundamental Change Early Settlement shall occur in conformity with the Applicable
Procedures and standing arrangements between DTC or such Depository and the Purchase Contract Agent or the Corporation.
Upon receipt of any such Certificate and payment of the Relevant Purchase Price, the Purchase Contract Agent shall pay the Corporation the Relevant Purchase Price and the Corporation shall promptly
(and in any event, on the same day) notify the Purchase Contract Agent in writing of its receipt of such Relevant Purchase Price, and upon receipt of such written confirmation, the Purchase Contract Agent shall notify the Collateral Agent that all
the conditions necessary for a Fundamental Change Early Settlement by a Holder of Units have been satisfied and that the Purchase Contract Agent has received from such Holder, and paid to the Corporation, as confirmed in writing by the Corporation,
the Relevant Purchase Price.
74
Upon receipt by the Collateral Agent of the notice from the Purchase Contract Agent set forth in the preceding paragraph, the Collateral Agent shall release from the Pledge, (1) the Notes
underlying the Pledged Applicable Ownership Interests in Notes or the Pledged Applicable Ownership Interests in the Treasury Portfolio, as the case may be, in the case of a Holder of Corporate Units, or (2) the Pledged Treasury Securities, in the
case of a Holder of Treasury Units, in each case relating to the Units containing the Purchase Contracts as to which such Holder has elected to effect Fundamental Change Early Settlement, and shall instruct the Securities Intermediary to Transfer
all such Pledged Applicable Ownership Interests in the Treasury Portfolio (and the related Applicable Ownership Interests in the Treasury Portfolio as specified in clause (ii) of the definition thereof) or Notes underlying Pledged Applicable
Ownership Interests in Notes or Pledged Treasury Securities, as the case may be, to the Purchase Contract Agent for distribution to such Holder in accordance with the terms provided for herein, in each case free and clear of the Pledge created
hereby.
If a Holder exercises the Fundamental Change Early Settlement Right in accordance with the provisions of this Section 5.05(b)(ii), the Corporation will deliver (or will cause the Purchase Contract
Agent to deliver) to the Holder on the Fundamental Change Early Settlement Date for each Purchase Contract with respect to which such Holder has elected Fundamental Change Early Settlement:
(A) a number of Common Shares (or Exchange Property Units, if applicable) equal to the
Settlement Rate determined pursuant to the first paragraph of this Section 5.05(b)(ii) plus the applicable Make-Whole Shares determined as set forth in Section 5.05(b)(iii) (net of applicable withholding, if any);
(B) the amount of any accrued and unpaid Contract Adjustment Payments (including any deferred
Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon) to, but excluding, the Fundamental Change Early Settlement Date, unless the date on which the Fundamental Change Early Settlement Right is exercised occurs
following any Record Date and prior to the related scheduled Contract Adjustment Payment Date, and the Corporation is not deferring the related Contract Adjustment Payment, in which case the Corporation shall instead pay all accrued and unpaid
Contract Adjustment Payments to the Holder as of such Record Date;
(C) the Notes, the Applicable Ownership Interests in the Treasury Portfolio or Treasury
Securities, as the case may be, related to each Unit with respect to which the Holder is effecting a Fundamental Change Early Settlement, free and clear of the Pledge created hereby; and
(D) if so required under the Securities Act or applicable Canadian Securities Laws, a U.S.
Prospectus or a Canadian Prospectus, as the case may be, as contemplated by this Section 5.05(b)(ii).
75
The Corporate Units or the Treasury Units of the Holders who do not elect Fundamental Change Early Settlement in accordance with the foregoing will continue to remain Outstanding and be subject to
settlement on the Purchase Contract Settlement Date in accordance with the terms hereof. In the event that Fundamental Change Early Settlement is effected with respect to Purchase Contracts underlying less than all the Units evidenced by a
Certificate, upon such Fundamental Change Early Settlement, the Corporation shall execute and upon receipt of an Issuer Order, the Purchase Contract Agent shall execute on behalf of the Holder as its attorney-in-fact, authenticate and deliver to
the Holder thereof, at the expense of the Corporation, a Certificate evidencing the Units as to which Fundamental Change Early Settlement was not effected.
(iii) The number of Make-Whole Shares per Purchase Contract deliverable upon a Fundamental
Change Early Settlement will be calculated by the Corporation and will be determined by reference to the table below, based on the date on which the Fundamental Change occurs or becomes effective (the “Effective
Date”) and the Share Price in such Fundamental Change. The “Share Price” in such Fundamental Change will
be:
(A) if holders of the Common Shares receive only cash in a Fundamental Change described in
clause (b) of the definition of Fundamental Change, the cash amount paid per Common Share; and
(B) otherwise, the average of the Closing Prices of the Common Shares over the 20 Trading-Day
period ending on the Trading Day immediately preceding the Effective Date of such Fundamental Change.
The Share price will be expressed in U.S. dollars and, if expressed in a different currency, will be translated by the Corporation or its agent to U.S. dollars at the Prevailing Exchange Rate on
such Trading Day. The Share price will be determined by the Corporation or its agent.
The Share Prices set forth in the second row of the table (i.e., the column headers) shall be adjusted upon the occurrence of those events set forth in Section 5.05(a) requiring
anti-dilution adjustments to the Fixed Settlement Rates. The adjusted Share Prices will equal the Share Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the applicable Fixed Settlement
Rate immediately prior to the adjustment giving rise to the Share Price adjustment and the denominator of which is the same Fixed Settlement Rate as so adjusted. Each of the Make-Whole Shares amounts in the table will be subject to adjustment in
the same manner and at the same time as the Fixed Settlement Rates as set forth under Section 5.05(a).
Share Price on Effective Date
|
||||||||||||||||||||||||||||||||||||||||||||||||||||
Effective Date
|
$
|
5.00
|
$
|
7.50
|
$
|
10.00
|
$
|
12.50
|
$
|
15.00
|
$
|
16.00
|
$
|
18.00
|
$
|
25.00
|
$
|
30.00
|
$
|
40.00
|
$
|
55.00
|
$
|
75.00
|
$
|
100.00
|
||||||||||||||||||||||||||
June 23, 2021
|
0.8785
|
0.5654
|
0.3778
|
0.2044
|
0.0000
|
0.1852
|
0.4273
|
0.2182
|
0.1576
|
0.1026
|
0.0635
|
0.0356
|
0.0165
|
|||||||||||||||||||||||||||||||||||||||
June 15, 2022
|
0.7915
|
0.5147
|
0.3523
|
0.1906
|
0.0000
|
0.1608
|
0.3950
|
0.1886
|
0.1385
|
0.0941
|
0.0609
|
0.0373
|
0.0210
|
|||||||||||||||||||||||||||||||||||||||
June 15, 2023
|
0.4935
|
0.3233
|
0.2297
|
0.1178
|
0.0000
|
0.0801
|
0.2971
|
0.1111
|
0.0842
|
0.0593
|
0.0393
|
0.0251
|
0.0154
|
|||||||||||||||||||||||||||||||||||||||
June 15, 2024
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
The exact Share Price and Effective Date applicable to a Fundamental Change may not be set forth on the table, in which case:
76
(1) if the Share Price is between two Share Prices on the table or the Effective Date is between two Effective Dates on the table, the number of Make-Whole Shares will be
determined by straight line interpolation between the Make-Whole Share amounts set forth for the higher and lower Share Prices and the two Effective Dates based on a 365-day year, as applicable;
(2) if the Share Price is in excess of $100.00 per share (subject to adjustment in the same manner as the Share Prices set forth in the second row of the table as set
forth above), then the Make-Whole Share amount will be zero; and
(3) if the Share Price is less than $5.00 per share (subject to adjustment in the same manner as the Share Prices set forth in the second row of the table as set forth
above) (the “Minimum Share Price”), then the Make-Whole Share amount will be determined as if the Share Price equaled the Minimum Share Price, using straight line interpolation, as set forth in clause (1) above, if the Effective Date is
between two Effective Dates on the table.
(c) The Fixed Settlement Rates shall not be adjusted (subject to Section 5.05(a)(ix)):
(1) upon the issuance of any Common Shares pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the Corporation’s
securities and the investment of additional optional amounts in Common Shares under any plan;
(2) upon the issuance of options, restricted shares or other awards in connection with any present or future employment contract, executive compensation plan, benefit
plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors, consultants or independent contractors or the exercise of such options or other awards;
(3) upon the issuance of any Common Shares pursuant to any option, warrant, right or exercisable, exchangeable or convertible security outstanding as of the date the
Units were first issued;
(4) upon the purchase of any Common Shares pursuant to an open market share repurchase program or other buyback transaction that is not an issuer bid, a tender offer or
exchange offer of the nature described in Section 5.05(a)(vi);
(5) [Reserved]; or
(6) for accumulated and unpaid Contract Adjustment Payments.
(d) All calculations and determinations pursuant to this Section 5.05 shall be made by the Corporation or its
agent in good faith and the Purchase Contract Agent shall have no responsibility with respect to such calculations and determinations.
77
Section 5.06. Notice of Adjustments and Certain Other Events.
(a) Whenever the Fixed Settlement Rates are adjusted as herein provided, the Corporation shall, as soon as practicable following the occurrence of an event that requires an adjustment pursuant to Section 5.05 (or if the Corporation is not aware
of such occurrence, as soon as practicable after becoming so aware):
(i) compute each adjusted Fixed Settlement Rate in accordance with Section 5.05 and prepare
and transmit to the Purchase Contract Agent an Officers’ Certificate setting forth each adjusted Fixed Settlement Rate, the method of calculation thereof in reasonable detail, and the facts requiring such adjustment and upon which such adjustment
is based; and
(ii) provide a written notice to the Holders of the Units and the Purchase Contract Agent of
the occurrence of such event and a statement in reasonable detail setting forth the method by which the adjustment to each Fixed Settlement Rate was determined and setting forth each adjusted Fixed Settlement Rate.
(b) The Purchase Contract Agent shall not at any time be under any duty or responsibility to any Holder to
determine whether any facts exist which may require any adjustment of each Fixed Settlement Rate, or with respect to the nature or extent or calculation of any such adjustment when made, or with respect to the method employed in making the same.
The Purchase Contract Agent shall be fully authorized and protected in relying on any Officers’ Certificate delivered pursuant to Section 5.06(a)(i) and any adjustment contained therein and the Purchase Contract Agent shall not be deemed to have
knowledge of any adjustment unless and until it has received such Officers’ Certificate. The Purchase Contract Agent shall not be accountable with respect to the validity or value (or the kind or amount) of any Common Shares, or of any
securities or property, which may at the time be issued or delivered with respect to any Purchase Contract; and the Purchase Contract Agent makes no representation with respect thereto. The Purchase Contract Agent shall not be responsible for
any failure of the Corporation to issue, transfer or deliver any Common Shares pursuant to a Purchase Contract or to comply with any of the duties, responsibilities or covenants of the Corporation contained in this Article 5.
Section 5.07. Termination Event; Notice.
(a) The Purchase Contracts and all obligations and rights of the Corporation and the Holders thereunder,
including the Holders’ obligation and right to purchase and receive Common Shares and to receive accrued and unpaid Contract Adjustment Payments (including any deferred Contract Adjustment Payments (including Compounded Contract Adjustment
Payments thereon)), shall immediately and automatically terminate, without the necessity of any notice or action by any Holder, the Purchase Contract Agent or the Corporation, if, prior to or on the Purchase Contract Settlement Date, a
Termination Event shall have occurred. In the event of such a termination of the Purchase Contracts as a result of a Termination Event, Holders of such Purchase Contracts will not have a claim in bankruptcy under the Purchase Contract with
respect to the Corporation’s issuance of Common Shares or the right to receive Contract Adjustment Payments.
78
(b) Upon and after the occurrence of a Termination Event, the Units shall thereafter represent the right to
receive the underlying Applicable Ownership Interests in the Notes, the Treasury Securities or the Applicable Ownership Interests in the Treasury Portfolio, as the case may be, forming part of such Units, and any other Collateral, in each case,
in accordance with the provisions of Section 3.15. Upon the occurrence of a Termination Event, (i) the Corporation shall promptly thereafter give written notice to the Purchase Contract Agent, the Collateral Agent and the Holders, at their
addresses as they appear in the Security Register and (ii) the Collateral Agent shall, in accordance with Section 3.15 and the instructions provided for in the aforementioned notice from the Corporation, release the Notes (or security
entitlements with respect thereto) underlying the Pledged Applicable Ownership Interests in Notes or the Applicable Ownership Interests in the Treasury Portfolio forming a part of each Corporate Unit or the Treasury Securities forming a part of
each Treasury Unit, as the case may be, and any other Collateral from the Pledge.
Section 5.08. Early Settlement. (a) Subject to and upon
compliance with the provisions of this Section 5.08, at the option of the Holder thereof, Purchase Contracts underlying Units may be settled early (“Early Settlement”) at any time prior to 4:00 p.m., New York City time, on the second Business Day immediately preceding the Purchase Contract Settlement Date, other than during a Blackout Period in the case of Corporate Units; provided that no Early Settlement will be permitted unless, at the time such Early Settlement is effected, (i) there is an effective U.S. Registration Statement and an
available U.S. Prospectus covering the Common Shares and other securities, if any, with respect to any Common Shares to be issued and delivered in connection with such Early Settlement, if such a U.S. Registration Statement and U.S. Prospectus is
required (in the view of counsel, which need not be in the form of a written opinion, for the Corporation) under the Securities Act and (ii) an appropriate Canadian Prospectus has been filed for the same purpose, if required (in the view of
counsel, which need not be in the form of a written opinion, for the Corporation) under applicable Canadian Securities Laws. If such a U.S. Registration Statement and U.S. Prospectus or Canadian Prospectus is so required, (A) the Corporation
shall, promptly after the date on which the Holder attempts to effect an Early Settlement, so notify such Holder, and (B) the Corporation agrees to use its commercially reasonable efforts to, as applicable, (i) have in effect a U.S. Registration
Statement covering those Common Shares to be delivered in respect of the Purchase Contracts being settled and provide a U.S. Prospectus in connection therewith and/or (2) prepare, file, receive a receipt for and deliver a Canadian Prospectus, in
each case, in a form that may be used in connection with such Early Settlement (it being understood that if there is a material business transaction or development that has not yet been publicly disclosed, the Corporation will not be required to
file such U.S. Registration Statement or provide such a U.S. Prospectus or prepare, file or deliver such a Canadian Prospectus, and the right to effect Early Settlement will not be available, until the Corporation has publicly disclosed such
transaction or development; provided that the Corporation shall use commercially reasonable efforts to make such disclosure as soon as it is commercially
reasonable to do so). In the event that a Holder seeks to exercise its right to effect Early Settlement and a U.S. Registration Statement is required to be effective, or a Canadian Prospectus is required to be delivered, in connection with the
exercise of such right but no such U.S. Registration Statement is then effective or no such Canadian Prospectus has been delivered, the Holder’s exercise of such right shall be void unless and until such a U.S. Registration Statement shall be
effective or such a Canadian Prospectus is delivered. For the avoidance of doubt, if exercise is so voided, the Holder shall continue to be entitled to contract adjustment payments in respect of the relevant Purchase Contracts.
(b) In order to exercise the right to effect Early Settlement with respect to any Purchase Contracts, the
Holder of the Certificate evidencing Units (in the case of Certificates in definitive certificated form) shall deliver, at any time prior to 4:00 p.m., New York City time, on the second Business Day immediately preceding the Purchase Contract
Settlement Date, other than during a Blackout Period in the case of Corporate Units, such Certificate to the Purchase Contract Agent at the Corporate Trust Office, duly endorsed for transfer to the Corporation or in blank with the form of
Election to Settle Early in the form attached thereto duly completed and accompanied by payment (payable to the Corporation in immediately available funds) in an amount (the “Early Settlement Amount”) equal to:
79
(i) (A) the Stated Amount, multiplied by (B) the number of Purchase Contracts with respect
to which the Holder has elected to effect Early Settlement in accordance with this Section 5.08, plus
(ii) if the Early Settlement Date occurs during the period from the close of business on any
Record Date next preceding any Contract Adjustment Payment Date to the opening of business on such Contract Adjustment Payment Date, an amount equal to the Contract Adjustment Payments payable on such Contract Adjustment Payment Date, unless the
Corporation elected to defer Contract Adjustment Payments which would otherwise be payable on such Contract Adjustment Payment Date.
In the case of Book-Entry Interests, each Beneficial Owner electing Early Settlement must deliver the Early Settlement Amount to the Purchase Contract Agent along with a facsimile of the Election
to Settle Early form duly completed, make book-entry transfer of such Book-Entry Interests and comply with the Applicable Procedures of the Depository.
If the foregoing requirements are first satisfied with respect to Purchase Contracts underlying any Units prior to 4:00 p.m., New York City time, on a Business Day, such day shall be the “Early
Settlement Date” with respect to such Units and if such requirements are first satisfied at or after 4:00 p.m., New York City time, on a Business Day or on a day that is not a Business Day, the “Early Settlement Date” with respect to
such Units shall be the next succeeding Business Day.
Upon the receipt of such Certificate and Early Settlement Amount from the Holder, the Purchase Contract Agent shall pay to the Corporation such Early Settlement Amount, the receipt of which payment
the Corporation shall promptly (and in any event, on the same day) confirm in writing. Upon written confirmation of such payment by the Corporation to the Purchase Contract Agent, the Purchase Contract Agent shall then notify the Collateral Agent
that (A) such Holder has elected to effect an Early Settlement, which notice shall set forth the number of such Purchase Contracts as to which such Holder has elected to effect Early Settlement, and (B) the Purchase Contract Agent has received from
such Holder, and paid to the Corporation as confirmed in writing by the Corporation, the related Early Settlement Amount.
Upon receipt by the Collateral Agent of the notice from the Purchase Contract Agent set forth in the preceding paragraph, the Collateral Agent shall release from the Pledge, (1) in the case of a
Holder of Corporate Units, the Notes underlying the Pledged Applicable Ownership Interests in Notes, or the Pledged Applicable Ownership Interests in the Treasury Portfolio, as the case may be, relating to the Purchase Contracts to which Early
Settlement is effected, or (2) in the case of a Holder of Treasury Units, Pledged Treasury Securities, in each case relating to the Units containing the Purchase Contracts as to which such Holder has elected to effect Early Settlement, and shall
instruct the Securities Intermediary to Transfer all such Pledged Applicable Ownership Interests in the Treasury Portfolio (and the related Applicable Ownership Interests in the Treasury Portfolio as specified in clause (ii) of the definition
thereof) or Notes underlying such Pledged Applicable Ownership Interests in Notes or Pledged Treasury Securities, as the case may be, to the Purchase Contract Agent for distribution to such Holder in accordance with the terms provided for herein,
in each case free and clear of the Pledge created hereby.
80
Holders of Corporate Units and Treasury Units may only effect Early Settlement pursuant to this Section 5.08 in integral multiples of 20 Corporate Units or 20 Treasury Units, as the case may be; provided that if Applicable Ownership Interests in the Treasury Portfolio have replaced Applicable Ownership Interests in Notes as a component of the Corporate Units, Corporate Units Holders may only effect
Early Settlement pursuant to this Section 5.08 in integral multiples of 400,000 Corporate Units.
(c) Upon Early Settlement of Purchase Contracts by a Holder of the related Units, on the applicable Settlement
Date:
(i) such Holder shall be entitled to receive, and the Corporation will deliver to the
Purchase Contract Agent for delivery to such Holder, a number of Common Shares (or in the case of an Early Settlement following a Reorganization Event, a number of Exchange Property Units) equal to the applicable Minimum Settlement Rate as in
effect on the Early Settlement Date for each Purchase Contract as to which Early Settlement is effected, subject to adjustment under Section 5.05(a)(vii), together with payment in lieu of any fraction of a share, as provided in Section 5.09;
(ii) such Holder shall be entitled to receive, and the Securities Intermediary will deliver
to the Purchase Contract Agent for delivery to such Holder, the Notes, the Applicable Ownership Interest in the Treasury Portfolio or the Treasury Securities, as the case may be, related to the Corporate Units or Treasury Units free and clear of
the Corporation’s security interest pursuant to the terms set forth herein; and
(iii) the Holder will be entitled to receive, and the Corporation shall be obligated to pay,
any accrued and unpaid Contract Adjustment Payments (including any accrued and unpaid deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon) to, but excluding, the Contract Adjustment Payment Date immediately
preceding the Early Settlement Date.
Upon any Early Settlement, the Holder’s right to receive future Contract Adjustment Payments and any accrued and unpaid Contract Adjustment Payments for the period since the most recent Contract
Adjustment Payment Date (including any accrued and unpaid deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon) will terminate.
(d) [Reserved.]
(e) Upon Early Settlement of any Purchase Contracts, and subject to its receipt of Common Shares or Exchange
Property Units from the Corporation and the Notes, the Applicable Ownership Interests in the Treasury Portfolio or Treasury Securities, as the case may be, from the Securities Intermediary, as applicable, the Purchase Contract Agent shall on the
applicable Settlement Date, in accordance with the instructions provided by the Holder thereof on the applicable form of Election to Settle Early on the reverse of the Certificate evidencing the related Units:
81
(i) transfer to the Holder (or its designee) the Notes, the Applicable Ownership Interests
in the Treasury Portfolio or Treasury Securities, as the case may be, related to such Units,
(ii) deliver to the Holder (or its designee) a certificate or certificates for the full
number of Common Shares or Exchange Property Units deliverable upon such Early Settlement, together with payment in lieu of any fraction of a Common Share, as provided in Section 5.09, and
(iii) if so required under the Securities Act or applicable Canadian Securities Laws, and to
the extent provided to the Purchase Contract Agent, deliver a U.S. Prospectus or Canadian Prospectus as contemplated by Section 5.08(a).
(f) In the event that Early Settlement is effected with respect to Purchase Contracts underlying less than all
the Units evidenced by a Certificate, upon such Early Settlement the Corporation shall execute and the Purchase Contract Agent shall execute on behalf of the Holder as its attorney-in-fact and, upon receipt of an Issuer Order, authenticate and
deliver to the Holder thereof, at the expense of the Corporation, a Certificate evidencing the Units as to which Early Settlement was not effected.
Section 5.09. No Fractional Shares. No fractional shares or
scrip representing fractional Common Shares shall be issued or delivered upon settlement on the Purchase Contract Settlement Date, or upon Early Settlement or Fundamental Change Early Settlement of any Purchase Contracts. If Certificates
evidencing more than one Purchase Contract shall be surrendered for settlement at one time by the same Holder, the number of full Common Shares which shall be delivered upon settlement shall be computed on the basis of the aggregate number of
Purchase Contracts evidenced by the Certificates so surrendered. Instead of any fractional Common Share that would otherwise be deliverable upon settlement of any Purchase Contracts on the Purchase Contract Settlement Date, or upon Early
Settlement or Fundamental Change Early Settlement, the Corporation, through the Purchase Contract Agent, shall make a cash payment to the Holder in respect of such fractional interest in an amount equal to the percentage of a whole share
represented by such fractional share multiplied by the Closing
Price of the Common Shares on the Trading Day immediately preceding the Purchase Contract Settlement Date (or, in the case of any Early Settlement or Fundamental Change Early Settlement, the Closing Price of the Common Shares on the Trading Day
immediately preceding the relevant Settlement Date). The Corporation shall provide the Purchase Contract Agent from time to time with sufficient funds and instructions to permit the Purchase Contract Agent to make all cash payments required by
this Section 5.09 in a timely manner.
Section 5.10. Charges and Taxes. The Corporation will pay all
share transfer and similar taxes attributable to the initial issuance and delivery of the Common Shares pursuant to the Purchase Contracts; provided that
the Corporation shall not be required to pay any such tax or taxes which may be payable in respect of any exchange of or substitution for a Certificate evidencing a Unit or any issuance of a Common Share in a name other than that of the
registered Holder or Beneficial Owner of a Certificate surrendered in respect of the Units evidenced thereby, other than in the name of the Purchase Contract Agent, as custodian for such Holder or Beneficial Owner, and the Corporation shall not
be required to issue or deliver such share certificates or Certificates unless or until the Person or Persons requesting the transfer or issuance thereof shall have paid to the Corporation the amount of such tax or shall have established to the
satisfaction of the Corporation that such tax either has been paid or is not payable.
82
Section 5.11. Contract Adjustment Payments. (a) Subject to the
provisions of this Section 5.11 and Section 5.12, the Corporation shall pay, on each Contract Adjustment Payment Date, the Contract Adjustment Payments payable in respect of each Purchase Contract to the Person in whose name the relevant
Certificate is registered at the close of business on the Record Date relating to such Contract Adjustment Payment Date. The Contract Adjustment Payments will be payable at the office of the Purchase Contract Agent or its agent, which agent
shall maintain an office in the continental United States of America for that purpose; provided that, subject to any applicable laws and
regulations, as long as the Units are in global form, the Contract Adjustment Payments shall be payable in accordance with Applicable Procedures of the Depository. If the book-entry system for the Units has been terminated, the Contract
Adjustment Payments will be payable by check mailed to the address of the Person entitled thereto at such Person’s address as it appears on the Security Register, or, if such Person so requests and designates an account in writing to the Purchase
Contract Agent at least five Business Days prior to the Contract Adjustment Payment Date, by wire transfer to such account. If any date on which Contract Adjustment Payments are to be made is not a Business Day, then payment of the Contract
Adjustment Payments payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or payment in respect of any such delay regardless of whether such Holder elects to settle the relevant Purchase
Contract early (whether pursuant to Section 5.05(b)(ii) or Section 5.08) following such Record Date). Contract Adjustment Payments payable for any period will be computed on the basis of a 360-day year of twelve 30-day months. The Contract
Adjustment Payments will accrue from the date of this Agreement. For the avoidance of doubt, subject to the Corporation’s right to defer Contract Adjustment Payments pursuant to Section 5.12, each Holder on any Record Date shall be entitled to
receive the full Contract Adjustment Payment due on the related Contract Adjustment Payment Date regardless of whether such Holder elects to settle the relevant Purchase Contract early (whether pursuant to Section 5.05(b)(ii) or Section 5.08)
following such Record Date.
(b) Upon the occurrence of a Termination Event, the Corporation’s obligation to pay future Contract Adjustment
Payments (including any accrued and unpaid Contract Adjustment Payments) and any deferred Contract Adjustment Payments (including Compounded Contract Adjustment Payments thereon) shall cease.
(c) Each Certificate delivered under this Agreement upon registration of transfer of or in exchange for or in
lieu of (including as a result of a Collateral Substitution or the recreation of Corporate Units) any other Certificate shall carry the right to accrued and unpaid Contract Adjustment Payments and deferred Contract Adjustment Payments (including
Compounded Contract Adjustment Payments thereon), that was carried by the Purchase Contracts underlying such other Certificates.
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(d) The Corporation’s obligations (collectively, the “CAP
Obligations”) with respect to Contract Adjustment Payments and deferred Contract Adjustment Payments (including Compounded Contract Adjustment Payments thereon), if any, shall be subordinated and
junior in right of payment to any existing and future Priority Indebtedness of the Corporation.
In the case of any insolvency, receivership, conservatorship, reorganization, readjustment of debt, marshaling of assets and liabilities or similar proceedings or any liquidation or winding-up of
or relating to the Corporation as a whole, whether voluntary or involuntary, all obligations of the Corporation to holders of Priority Indebtedness of the Corporation shall be entitled to be paid in full before any payment shall be made on account
of the CAP Obligations. In the event of any such proceeding, after payment in full of all sums owing with respect to Priority Indebtedness of the Corporation, the Holders of the Units, together with the holders of any obligations of the Corporation
ranking on a parity with the CAP Obligations, shall be entitled to be paid from the remaining assets of the Corporation the amounts at the time due and owing on account of the CAP Obligations and such obligations ranking on a parity with the CAP
Obligations before any payment or other distribution, whether in cash, property or otherwise, shall be made on account of any shares in the capital of or any obligations of the Corporation ranking junior to the CAP Obligations. In addition, in the
event of any such proceeding, if any payment or distribution of assets of the Corporation 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 Corporation being subordinated to the payment of the CAP Obligations shall be received by the Purchase Contract Agent or the Holders of the Units in respect of the CAP Obligations before all Priority
Indebtedness of the Corporation is paid in full, such payment or distribution shall be held in trust for the benefit of and shall be paid over to the holders of such Priority Indebtedness of the Corporation or their representative or
representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Priority Indebtedness of the Corporation may have been issued, ratably, for application to the payment of all Priority Indebtedness
of the Corporation remaining unpaid until all such Priority Indebtedness of the Corporation shall have been paid in full, after giving effect to any concurrent payment or distribution to the holders of such Priority Indebtedness of the
Corporation. Nothing in the provisions of Section 5.11(d) through (n) shall apply to claims of, or payments to, the Purchase Contract Agent under or pursuant to Section 7.07.
The subordination provisions of this sub-section (d) and sub-section (l) below shall not be applicable to amounts at the time due and owing with respect to the CAP Obligations for the payment of
which funds have been deposited in trust for the benefit of the Holders; nor shall such provisions impair any rights, interests, or powers of any secured creditor of the Corporation in respect of any security the creation of which is not prohibited
by the provisions of this Agreement, the Units or the Purchase Contracts.
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The Corporation shall give written notice to the Purchase Contract Agent within 10 Business Days after the occurrence of (i) insolvency, receivership, conservatorship, reorganization, readjustment
of debt, marshaling of assets and liabilities or similar proceedings or any liquidation or winding-up of or relating to the Corporation as a whole, whether voluntary or involuntary, (ii) any “Event of Default” described in Section 6.1(d) or (e) of
the Base Indenture, or (iii) any event specified in the first sentence of the second paragraph of Section 5.11(d). The Purchase Contract Agent, subject to the provisions of Section 7.01, shall be entitled to assume that, and may act as if, no such
event referred to in the preceding sentence has occurred unless a Responsible Officer of the Purchase Contract Agent has received at the Corporate Trust Office from the Corporation or any one or more holders of Priority Indebtedness of the
Corporation or any trustee or representative therefor (who shall have been certified or otherwise established to the satisfaction of the Purchase Contract Agent to be such a holder or trustee or representative) written notice thereof. Upon any
distribution of assets of the Corporation referred to in the provisions of Section 5.11(d) through (n), the Purchase Contract Agent and Holders of the Units shall be entitled to rely upon any order or decree of a court of competent jurisdiction in
which proceedings relating to any event specified in the first sentence of this paragraph are pending for the purpose of ascertaining the persons entitled to participate in such distribution, the holders of the Priority Indebtedness of the
Corporation, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon, and all other facts pertinent thereto or to the provisions of Section 5.11(d) through (n), and the Purchase Contract Agent, subject to the
provisions of Article 7, and the Holders of the Units shall be entitled to rely upon a certificate of the trustee in bankruptcy, proposal trustee, monitor, receiver, liquidator, distribution agent or other person making any distribution to the
Purchase Contract Agent or to the Holders of the Units for the purpose of ascertaining the persons entitled to participate in such distribution, the holders of the Priority Indebtedness of the Corporation, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent thereto or to the provisions of Section 5.11(d) through (n). In the absence of any such trustee in bankruptcy, proposal trustee, monitor, receiver, liquidator,
distribution agent or other person, the Purchase Contract Agent shall be entitled to rely upon a written notice by a Person representing himself to be a holder of Priority Indebtedness of the Corporation (or a trustee or representative on behalf of
such holder) as evidence that such Person is a holder of such Priority Indebtedness (or is such a trustee or representative). In the event that the Purchase Contract Agent determines, in good faith, that further evidence is required with respect
to the right of any Person, as a holder of Priority Indebtedness of the Corporation, to participate in any payment or distribution pursuant to the provisions of Section 5.11(d) through (n), the Purchase Contract Agent may request such Person to
furnish evidence to the reasonable satisfaction of the Purchase Contract Agent as to the amount of such Priority Indebtedness of the Corporation held by such Person, as to the extent to which such Person is entitled to participation in such payment
or distribution, and as to other facts pertinent to the rights of such Person under the provisions of Section 5.11(d) through (n), and if such evidence is not furnished, the Purchase Contract Agent may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
(e) Nothing contained in the provisions of Section 5.11(d) through (n) or elsewhere in this Agreement, the
Units or the Purchase Contracts is intended to or shall impair, as between the Corporation and the Holders of the Units, the obligation of the Corporation, which is absolute and unconditional, to satisfy the CAP Obligations when, where and as the
same shall become due and payable, all in accordance with the terms of this Agreement, the Units and the Purchase Contracts, or is intended to or shall affect the relative rights of such Holders and creditors of the Corporation other than the
holders of the Priority Indebtedness of the Corporation, nor shall anything herein or therein prevent the Purchase Contract Agent or the Holder of any Unit from exercising all remedies otherwise permitted by applicable law upon a failure of the
Corporation to satisfy the CAP Obligations, subject to the rights, if any, under the provisions of Section 5.11(d) through (n) of the holders of Priority Indebtedness of the Corporation in respect of cash, property, or securities of the
Corporation received in respect of the CAP Obligations upon the exercise of any such remedy.
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(f) With respect to the holders of Priority Indebtedness of the Corporation, the Purchase Contract Agent
undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in the provisions of Section 5.11(d) through (n), and no implied covenants or obligations with respect to the holders of Priority
Indebtedness of the Corporation shall be read into this Agreement, the Units or the Purchase Contracts against the Purchase Contract Agent. The Purchase Contract Agent shall not be deemed to owe any fiduciary duty to the holders of Priority
Indebtedness of the Corporation.
(g) Notwithstanding any of the provisions of Section 5.11(d) through (n) or any other provisions of this
Agreement, the Units or the Purchase Contracts, the Purchase Contract Agent shall not at any time be charged with knowledge of the existence of any facts which would prohibit the making of any payment of moneys to or by the Purchase Contract
Agent unless and until a Responsible Officer of the Purchase Contract Agent shall have received at the Corporate Trust Office written notice thereof from the Corporation or from one or more holders of Priority Indebtedness of the Corporation or
from any trustee therefor or representative thereof who shall have been certified by the Corporation or otherwise established to the reasonable satisfaction of the Purchase Contract Agent to be such a holder or trustee or representative; and,
prior to the receipt of any such written notice, the Purchase Contract Agent, subject to the provisions of Section 7.01, shall be entitled in all respects to assume that no such facts exist; provided, however, that, if prior to the fifth Business Day preceding the date upon which by the terms hereof any such moneys may
become payable for any purpose, the Purchase Contract Agent shall not have received with respect to such moneys the notice provided for in this sub-section (g), then, anything herein contained to the contrary notwithstanding, the Purchase
Contract Agent 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 which may be received by it on or after such
date; provided, further, no such application shall affect the
obligations under the provisions of Section 5.11(d) through (n) of the Persons receiving such moneys from the Purchase Contract Agent.
(h) Anything in this Agreement, the Units or the Purchase Contracts to the contrary notwithstanding, any deposit
of moneys by the Corporation with the Purchase Contract Agent or any other agent (whether or not in trust) for any payment of the CAP Obligations shall, except as provided in sub-section (g) above, be subject to the provisions of Section 5.11(d).
(i) Subject to the payment in full of all Priority Indebtedness of the Corporation, the Holders of the Units
shall be subrogated to the rights of the holders of such Priority Indebtedness of the Corporation to receive payments or distributions of assets of the Corporation applicable to such Priority Indebtedness of the Corporation until the CAP
Obligations shall be paid in full, and none of the payments or distributions to the holders of such Priority Indebtedness to which the holders of the Units or the Purchase Contract Agent would be entitled except for the provisions of Section
5.11(d) through (n) or of payments over pursuant to the provisions of Section 5.11(d) through (n) to the holders of such Priority Indebtedness of the Corporation by the Holders of the Units or the Purchase Contract Agent shall, as among the
Corporation, its creditors other than the holders of such Priority Indebtedness of the Corporation, and the Holders of such Units, be deemed to be a payment by the Corporation to or on account of such Priority Indebtedness of the Corporation; it
being understood that the provisions of Section 5.11(d) through (n) are and are intended solely for the purpose of defining the relative rights of the Holders of the Units, on the one hand, and the holders of the Priority Indebtedness of the
Corporation, on the other hand.
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(j) No right of any present or future holders of any Priority Indebtedness of the Corporation to enforce
subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Corporation or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the
Corporation with the terms, provisions and covenants of this Agreement, the Units or the Purchase Contracts, regardless of any knowledge thereof with which any such holder may have or be otherwise charged. The holders of Priority Indebtedness of
the Corporation may, at any time or from time to time and in their absolute discretion, change the manner, place or terms of payment, change or extend the time of payment of, or renew or alter, any such Priority Indebtedness of the Corporation,
or amend or supplement any instrument pursuant to which any such Priority Indebtedness of the Corporation is issued or by which it may be secured, or release any security therefor, or exercise or refrain from exercising any other of their rights
under the Priority Indebtedness of the Corporation including, without limitation, the waiver of default thereunder, all without notice to or assent from the Holders of the Units or the Purchase Contract Agent and without affecting the obligations
of the Corporation, the Purchase Contract Agent or the Holders of the Units under Section 5.11(d) through (n).
(k) Each Holder of a Unit, by its acceptance thereof, authorizes and expressly directs the Purchase Contract
Agent on its behalf to take such action as may be necessary or appropriate to effectuate, as between the Holders of such Units and the holders of Priority Indebtedness of the Corporation, the subordination provided in Section 5.11(d) through
(n). If, in the event of any proceeding or other action relating to the Corporation referred to in the first sentence of the second paragraph of Section 5.11(d), a proper claim or proof of debt in the form required in such proceeding or action
is not filed by or on behalf of the Holders of the Units with respect to the CAP Obligations prior to fifteen days before the expiration of the time to file such claim or claims, then the holder or holders of Priority Indebtedness of the
Corporation shall have the right to file and are hereby authorized to file an appropriate claim with respect to the CAP Obligations for and on behalf of the Holders of such Units.
(l) In the event and during the continuation of any default in the payment of principal of or interest on any
Priority Indebtedness of the Corporation, or in the event that any event of default with respect to any Priority Indebtedness of the Corporation shall have occurred and be continuing and shall have resulted in such Priority Indebtedness of the
Corporation becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, unless and until such event of default shall have been cured, waived or remedied or shall have ceased to exist and
such acceleration shall have been rescinded or annulled or all amounts due on such Priority Indebtedness of the Corporation are paid in full in cash or other permitted consideration, or in the event any judicial proceeding shall be pending with
respect to any such default in payment or such event or default (unless and until all amounts due on such Priority Indebtedness of the Corporation are paid in full in cash or other permitted consideration), then no payment or distribution of any
kind or character, whether in cash, properties or securities shall be made by the Corporation on account of the CAP Obligations.
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In the event that, notwithstanding the foregoing, the Corporation shall make any payment to the Purchase Contract Agent or the Holder of any Unit in respect of the CAP Obligations prohibited by the
foregoing provisions of this sub-section (l), and if such fact shall, at or prior to the time of such payment, have been made known to the Purchase Contract Agent or, as the case may be, such Holder, then and in such event payment shall be paid
over and delivered forthwith to the Corporation.
(m) The Purchase Contract Agent shall be entitled to all of the rights set forth in Section 5.11(d) through (n)
in respect of any Priority Indebtedness of the Corporation at any time held by it in its individual capacity and with respect to any amounts owed to the Purchase Contract Agent pursuant to Section 7.07 to the same extent as any other holder of
such Priority Indebtedness of the Corporation, and nothing in this Agreement, the Units or the Purchase Contracts shall be construed to deprive the Purchase Contract Agent of any of its rights as such holder.
(n) The failure of the Corporation to make a payment with respect to the CAP Obligations by reason of any
provision in Section 5.11(d) through (n) shall not be construed as preventing the occurrence of a default under this Agreement, the Units or the Purchase Contracts.
Section 5.12. Deferral of Contract Adjustment Payments. (a) The
Corporation has the right at any time, and from time to time, to defer payment of all or part of the Contract Adjustment Payments in respect of each Purchase Contract by extending the period for payment of Contract Adjustment Payments to any
subsequent Contract Adjustment Payment Date (an “Extension Period”), but not beyond the Purchase Contract Settlement Date (or, with respect to Purchase
Contracts for (i) which an effective Fundamental Change Early Settlement has occurred, the Fundamental Change Early Settlement Date or (ii) which an effective Early Settlement has occurred, the Contract Adjustment Payment Date immediately
preceding the Early Settlement Date). Prior to the expiration of any Extension Period, the Corporation may further extend such Extension Period to any subsequent Contract Adjustment Payment Date, but not beyond the Purchase Contract Settlement
Date (or any applicable Fundamental Change Early Settlement Date or Contract Adjustment Payment Date immediately preceding the Early Settlement Date, as the case may be).
If the Corporation so elects to defer Contract Adjustment Payments, the Corporation shall pay additional Contract Adjustment Payments on such deferred installments of Contract
Adjustment Payments at a rate equal to 7.75% per annum, compounded on each Contract Adjustment Payment Date to, but excluding, the Contract Adjustment Payment Date on which such deferred Contract Adjustment Payments are paid (the accrued additional
Contract Adjustment Payments thereon, being referred to herein as the “Compounded Contract Adjustment Payments”). The Corporation may pay any such deferred Contract Adjustment Payments (including Compounded Contract Adjustment Payments
thereon) on any scheduled Contract Adjustment Payment Date to the Holder on the related Record Date, subject to sub-section (c) below.
(b) The Corporation shall give written notice to the Purchase Contract Agent (and the Purchase Contract Agent
shall promptly thereafter give notice thereof to Holders of Purchase Contracts) of its election to extend any period for the payment of Contract Adjustment Payments, the expected length of any such Extension Period and any extension of any
Extension Period, at least one Business Day before the earlier of (i) the Record Date for the Payment Date on which Contract Adjustment Payments would have been payable except for the election to begin or extend the Extension Period or (ii) the
date the Purchase Contract Agent is required to give notice to any securities exchange or to Holders of Purchase Contracts of such Record Date or such Payment Date.
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(c) The Corporation shall give written notice to the Purchase Contract Agent (and the Purchase Contract Agent
shall promptly thereafter give notice thereof to Holders of Purchase Contracts) of the end of an Extension Period (other than on the Purchase Contract Settlement Date) or its election to pay any portion of the deferred Contract Adjustment
Payments (including Compounded Contract Adjustment Payments thereon) on a Payment Date prior to the end of an Extension Period, at least one Business Day before the earlier of (i) the Record Date for the Payment Date on which such Extension
Period shall end or such payment of deferred Contract Adjustment Payments (including Compounded Contract Adjustment Payments thereon) shall be made or (ii) the date the Purchase Contract Agent is required to give notice to any securities exchange
or to Holders of Purchase Contracts of such Record Date or such Payment Date.
(d) In the event the Corporation exercises its option to defer the payment of Contract Adjustment Payments,
then, until all deferred Contract Adjustment Payments (including Compounded Contract Adjustment Payments thereon) have been paid, the Corporation shall not (1) declare or pay any dividends on, or make any distributions on, or redeem, purchase or
acquire, or make a liquidation payment with respect to any shares in the capital of the Corporation, (2) make any payment of principal of, or interest or premium, if any, on, or repay, repurchase or redeem any of the Corporation’s debt securities
ranking on a parity with the CAP Obligations or ranking junior to the CAP Obligations, or (3) make any guarantee payments under any guarantee by the Corporation of securities of any of its subsidiaries in the case of a guarantee ranking on a
parity with the CAP Obligations or ranking junior to the CAP Obligations; provided that the foregoing does not apply to:
(i) purchases, redemptions or other acquisitions of shares in the capital of the Corporation
in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of employees, officers, directors, agents, consultants or independent contractors or a stock purchase or dividend reinvestment plan, or
the satisfaction of the Corporation’s obligations pursuant to any contract or security outstanding on the date that the Contract Adjustment Payment is deferred requiring the Corporation to purchase, redeem or acquire shares in the capital of the
Corporation;
(ii) any payment, repayment, redemption, purchase, acquisition or declaration of dividends
described in clause (1) above as a result of a reclassification of the shares in the capital of the Corporation, or the exchange or conversion of all or a portion of one class or series of shares in the capital of the Corporation, for another
class or series of shares in the capital of the Corporation;
(iii) the purchase of fractional interests in shares in the capital of the Corporation
pursuant to the conversion or exchange provisions of the shares in the capital of the Corporation or the security being converted or exchanged, or in connection with the settlement of stock purchase contracts outstanding on the date that the
Contract Adjustment Payment is deferred;
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(iv) dividends or distributions paid or made in shares in the capital of the Corporation (or
rights to acquire shares in the capital of the Corporation), or repurchases, redemptions or acquisitions of shares in the capital of the Corporation in connection with the issuance or exchange of shares in the capital of the Corporation (or of
securities convertible into or exchangeable for shares in the capital of the Corporation) and distributions in connection with the settlement of stock purchase contracts outstanding on the date that the Contract Adjustment Payment is deferred;
(v) redemptions, exchanges or repurchases of, or with respect to, any rights outstanding
under a shareholder rights plan outstanding on the date that the Contract Adjustment Payment is deferred or the declaration or payment thereunder of a dividend or distribution of or with respect to such rights in the future;
(vi) payments on any preferred securities, subordinated debentures, junior subordinated
debentures or junior subordinated notes (including, for the avoidance of doubt, the Corporation’s Series 2018-A subordinated notes and Series 2019-A subordinated notes), or any guarantees of any of the foregoing, in each case, ranking on a parity
with the CAP Obligations, so long as the amount of payments made on account of such securities or guarantees and the Purchase Contracts is paid on all such securities and guarantees and the Purchase Contracts then outstanding on a pro rata basis in proportion to the full payment to which each series of such securities, guarantees or Purchase Contracts is then entitled if paid in
full; provided that, for the avoidance of doubt, the Corporation shall not make Contract Adjustment Payments in part;
(vii) [Reserved]; or
(viii) any payment of deferred interest or principal on, or repayment, redemption or
repurchase of, parity or junior securities that, if not made, would cause the Corporation to breach the terms of the instrument governing such parity or junior securities.
Section 5.13. Withholding.
(a) The Corporation and its agents, as applicable, shall be entitled to deduct or withhold from any payment to
any Person pursuant to this Agreement such amounts as it is required to deduct or withhold or is required to deduct and withhold with respect to such payment under the Income Tax Act (Canada) or any provision of any law and remit such deduction and withholding amount to the appropriate governmental entity. To the extent that amounts are so properly deducted or withheld, such deducted or withheld
amounts shall be treated for all purposes of this Agreement as having been paid to the person to whom such amounts would otherwise have been paid, provided that such withheld amounts are actually remitted to the appropriate governmental entity.
Without limiting the generality of the foregoing, the Corporation and its agents shall have the right to effect any deduction or withholding from a payment to a Person by way of holdback from Common Shares to be received by such Person hereunder
and selling or otherwise dealing with such Common Shares on behalf of such Person as necessary to fund the amount of such deduction or withholding.
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(b) The Parties agree to cooperate in good faith to allow the Corporation to put in place arrangements
(including communications with intermediaries, agents, trustees, financial institutions, depositories, dealers and brokers) to facilitate the proper withholding of Canadian non-resident withholding tax (including the provision of information
which may permit the determination of any entitlement to a reduced withholding rate or an exemption as a result of a tax treaty between Canada and another jurisdiction) by or on behalf of the Corporation as required, the timely remittance of
such tax to the Canada Revenue Agency and the issuance of any required tax reporting slips, in connection with the payment of Contract Adjustment Payments and any other amounts pursuant to this Agreement.
ARTICLE 6
RIGHTS AND REMEDIES OF HOLDERS
Section 6.01. Unconditional Right of Holders to Receive Contract Adjustment Payments and to Purchase Common
Shares. Each Holder of a Unit shall have the right, which is absolute and unconditional, (i) except upon and following a Termination Event and subject to Article 5, to receive each Contract
Adjustment Payment and deferred Contract Adjustment Payment (including Compounded Contract Adjustment Payments thereon); with respect to the Purchase Contract comprising part of such Unit on the respective Contract Adjustment Payment Date for
such Unit and (ii) except upon and following a Termination Event, to purchase Common Shares pursuant to the Purchase Contract comprising part of such Unit and, in each such case, to institute suit for the enforcement of any such right to receive
Contract Adjustment Payments and the right to purchase Common Shares (including, without limitation, by effecting an Early Settlement or Fundamental Change Early Settlement in accordance with the terms hereof), and such right shall not be
impaired without the consent of such Holder.
Section 6.02. Restoration of Rights and Remedies. If any Holder
has instituted any proceeding to enforce any right or remedy under this Agreement and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to such Holder, then and in every such case, subject to any
determination in such proceeding, the Corporation, the Purchase Contract Agent, the Collateral Agent, the Securities Intermediary, the Custodial Agent, and such Holder shall be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of such Holder shall continue as though no such proceeding had been instituted.
Section 6.03. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Certificates in the last paragraph of Section 3.10, no right or remedy herein conferred upon or reserved to the Holders 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 prevent the concurrent assertion or employment of any other appropriate right or remedy.
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Section 6.04. Delay or Omission Not Waiver. No delay or
omission of any Holder to exercise any right upon a default or remedy upon a default shall impair any such right or remedy or constitute a waiver of any such right. Every right and remedy given by this Article 6 or by law to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by such Holders.
Section 6.05. Undertaking for Costs. All parties to this
Agreement agree, and each Holder of a Unit, by its acceptance of such Unit shall be deemed to have agreed, that any court of competent jurisdiction may in its discretion require, in any suit for the enforcement of any right or remedy under this
Agreement, or in any suit against the Purchase Contract Agent for any action taken, suffered or omitted by it as Purchase Contract Agent, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and costs, 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; provided that the provisions of this Section shall not apply to any suit instituted by the Purchase Contract Agent, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% of the Outstanding Units, or to any suit instituted by any Holder for the enforcement of any interest on any Notes owed pursuant to such Holder’s Applicable Ownership Interests in Notes or Contract
Adjustment Payments on or after the respective Payment Date therefor in respect of any Unit held by such Holder, or for enforcement of the right to purchase Common Shares under the Purchase Contracts constituting part of any Unit held by such
Holder (including, without limitation, by effecting an Early Settlement or Fundamental Change Early Settlement in accordance with the terms hereof).
Section 6.06. Waiver of Stay or Extension Laws. The
Corporation covenants (to the extent that it may lawfully do so) that it 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, that may affect the covenants or the performance of this Agreement; and the Corporation (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, but will suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE 7
THE PURCHASE CONTRACT AGENT
Section 7.01. Certain Duties and Responsibilities.
(a) The Purchase Contract Agent:
(i) undertakes to perform, with respect to the Units, such duties and only such duties as
are specifically set forth in this Agreement and the Remarketing Agreement to be performed by the Purchase Contract Agent and no implied covenants or obligations shall be read into this Agreement or the Remarketing Agreement against the Purchase
Contract Agent; and
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(ii) may conclusively rely, in the absence of bad faith, as to the truth of the statements
and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Purchase Contract Agent and conforming to the requirements of this Agreement or the Remarketing Agreement, as applicable, but in the case of any
certificates or opinions which by any provision hereof are specifically required to be furnished to the Purchase Contract Agent, the Purchase Contract Agent shall be under a duty to examine the same to determine whether or not they conform to the
requirements of this Agreement or the Remarketing Agreement, as applicable (but need not confirm or investigate the accuracy of the mathematical calculations or other facts, statements, opinions or conclusions stated therein).
(b) No provision of this Agreement or the Remarketing Agreement shall be construed to relieve the Purchase
Contract Agent from liability for its own grossly negligent action, its own grossly negligent failure to act, or its own willful misconduct, except that:
(i) this Section 7.01(b) shall not be construed to limit the effect of Section 7.01(a) and
Section 7.01(c); and
(ii) the Purchase Contract Agent shall not be liable for any error of judgment made in good
faith by a Responsible Officer, unless it shall be conclusively determined by a court of competent jurisdiction that the Purchase Contract Agent was grossly negligent in ascertaining the pertinent facts.
(c) No provision of this Agreement, the Remarketing Agreement or any other document or instrument referred to
or provided for herein or in connection herewith shall require the Purchase Contract Agent to expend or risk its own funds or otherwise incur any 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 and/or security against such risk or liability is not assured to it.
(d) Whether or not therein expressly so provided, every provision of this Agreement, the Remarketing Agreement
or any other document or instrument referred to or provided for herein or in connection herewith relating to the conduct or affecting the liability of or affording protection to the Purchase Contract Agent shall be subject to the provisions of
this Section.
(e) The Purchase Contract Agent is fully authorized to execute and deliver the Remarketing Agreement in its
capacity as Purchase Contract Agent. The rights, privileges, protections, immunities and benefits afforded to the Purchase Contract Agent and each Indemnitee under this Agreement, including, without limitation, its and their rights to be
compensated, reimbursed and indemnified, shall also extend to and cover the Purchase Contract Agent and each Indemnitee with respect to the role of the Purchase Contract Agent as Purchase Contract Agent under, including action taken, omitted to
be taken or suffered by the Purchase Contract Agent pursuant to, the Remarketing Agreement or any other document or instrument referred to or provided for herein or in connection herewith.
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(f) On or prior to the date that is 20 days prior to the first day of the Final Remarketing Period or, if the
Corporation shall have elected to conduct an Optional Remarketing, the date that is 20 days prior to the first day of the Optional Remarketing Period, at the Corporation’s request given in an Officers’ Certificate at least three Business Days
prior to such 20th day, the Purchase Contract Agent shall deliver to the Corporation and the Remarketing Agent(s) an executed counterpart of the Remarketing Agreement, signed by an authorized signatory of the Purchase Contract Agent.
Section 7.02. Notice of Default. Within 90 days after the
occurrence of any default by the Corporation hereunder of which a Responsible Officer of the Purchase Contract Agent has received written notice at its Corporate Trust Office specifying this Agreement and the Units, the Purchase Contract Agent
shall transmit by mail to the Corporation and the Holders, as their names and addresses appear in the Security Register, notice of such default hereunder, unless such default shall have been cured or waived. The term “default” for the purposes of
this Section being hereby defined as the failure to make any Contract Adjustment Payment when the same shall become due and payable, or any default by the Corporation of any of its covenants in Article 10 of this Agreement.
Section 7.03. Certain Rights of Purchase Contract Agent.
Subject to the provisions of Section 7.01:
(a) the Purchase Contract Agent may conclusively rely and shall be fully 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 (whether in its original or facsimile
form) reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Corporation mentioned herein shall be sufficiently evidenced by an
Officers’ Certificate, Issuer Order or Issuer Request, and any resolution of the Board of Directors of the Corporation may be sufficiently evidenced by a Board Resolution;
(c) any request, instruction or direction of a Beneficial Owner to the Purchase Contract Agent shall be
sufficiently evidenced by a written request, instruction or order signed in the name of such Beneficial Owner by an authorized representative of such Beneficial Owner and certifying to the Purchase Contract Agent that such Person is a Beneficial
Owner under the terms of this Agreement; the Purchase Contract Agent shall have the right to require that any directions, instructions or notices provided to it be signed by an authorized representative of such Beneficial Owner, be provided on
corporate letterhead or contain a medallion signature guarantee, or contain such other evidence as may be reasonably requested by it, to establish the identity and/or signatures thereon; in acting hereunder, in the absence of gross negligence or
willful misconduct by the Purchase Contract Agent, the Purchase Contract Agent shall be fully authorized and protected in relying upon any such request, instruction, direction and certification received by a Beneficial Owner hereunder;
(d) whenever in the administration of this Agreement, the Remarketing Agreement or any other document or
instrument referred to or provided for herein or in connection herewith, the Purchase Contract Agent shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting to take any action hereunder or thereunder,
the Purchase Contract Agent (unless other evidence be herein or therein specifically prescribed) may conclusively rely upon an Officers’ Certificate or an Opinion of Counsel, which Officers’ Certificate or Opinion of Counsel the Corporation shall
promptly provide;
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(e) the Purchase Contract Agent may consult with counsel of its selection 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;
(f) the Purchase Contract Agent 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, or inquire as to the performance by the
Corporation of any of its covenants in this Agreement, but the Purchase Contract Agent, in its discretion, may make reasonable further inquiry or investigation into such facts or matters related to the execution, delivery and performance of the
Purchase Contracts as it may see fit, and, if the Purchase Contract Agent shall determine to make such further inquiry or investigation, it shall be given a reasonable opportunity to examine the relevant books, records and premises of the
Corporation, personally or by agent or attorney, at the sole cost of the Corporation;
(g) the Purchase Contract Agent may execute any of the powers hereunder or perform any duties hereunder either
directly or by or through agents, attorneys, or an Affiliate of the Purchase Contract Agent and the Purchase Contract Agent shall not be responsible for any misconduct or negligence on the part of any agent, attorney, or Affiliate appointed with
due care by it hereunder;
(h) the Purchase Contract Agent shall be under no obligation to exercise any of the rights or powers vested in
it by this Agreement at the request or direction of any of the Holders pursuant to this Agreement, unless such Holders shall have offered to the Purchase Contract Agent security and/or indemnity satisfactory to the Purchase Contract Agent against
the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(i) the Purchase Contract Agent shall not be liable for any action taken, suffered, or omitted to be taken by
it in the absence of gross negligence or willful misconduct by it and believed by it to be authorized and within the discretion or rights or powers conferred upon it by this Agreement;
(j) the Purchase Contract Agent shall not be deemed to have notice of any adjustment to the Fixed Settlement
Rates, the occurrence of a Termination Event or any default hereunder unless a Responsible Officer of the Purchase Contract Agent has received specific written notice by the Corporation or any Holder of any such adjustment, Termination Event, or
occurrence or event which is in fact a default is received by a Responsible Officer of the Purchase Contract Agent at the Corporate Trust Office of the Purchase Contract Agent, and such notice references the Units, the Corporation and this
Agreement;
(k) the Purchase Contract Agent may request that the Corporation deliver an Officers’ Certificate setting forth
the names of individuals and/or titles of representatives authorized at such time to take specified actions pursuant to this Agreement along with specimen signatures, which Officers’ Certificate may be signed by any person authorized to sign an
Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded;
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(l) the rights, privileges, protections, immunities and benefits given to the Purchase Contract Agent,
including, without limitation, its right to be compensated, reimbursed, and indemnified, are extended to and shall be enforceable by, the Purchase Contract Agent in each of its capacities hereunder, by each agent of, custodian of, and other
Person employed by (in each case, as permitted under this Agreement), the Purchase Contract Agent to act hereunder and shall survive the resignation or removal of the Purchase Contract Agent and the termination of this Agreement;
(m) the Purchase Contract Agent shall not be required to give any bond or surety in respect of the performance
of its powers or duties hereunder;
(n) the duties of the Purchase Contract Agent hereunder and under the Remarketing Agreement and under any other
document or instrument referred to or provided for herein or in connection herewith are solely ministerial and administrative in nature;
(o) the Purchase Contract Agent shall not be required to initiate or conduct any litigation or collection
proceedings hereunder and shall have no responsibilities with respect to any default hereunder, in each case, except as expressly set forth herein;
(p) the permissive right of the Purchase Contract Agent to take or refrain from taking action hereunder shall
not be construed as a duty; and
(q) as to any discretionary action or matters not expressly provided for by this Agreement, the Purchase
Contract Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions given by the Corporation or the Holders, as the case may be; provided, however, it is understood that in all cases the Purchase Contract Agent shall be fully justified in failing or refusing to
take any such action under this Agreement if it shall not have received such direction from the Corporation or the Holders (acting in accordance with this Agreement); this provision is intended solely for the benefit of the Purchase Contract
Agent and its successors and permitted assigns and is not intended to and will not entitle the other parties hereto to any defense, claim or counterclaim, or confer any rights or benefits on any party hereto.
Section 7.04. Not Responsible for Recitals or Issuance of Units.
The recitals contained herein, in the Remarketing Agreement, in any other document or instrument referred to or provided for herein or in connection herewith, and in the Certificates shall be taken as the statements of the Corporation, and the
Purchase Contract Agent assumes no responsibility for their accuracy or validity. The Purchase Contract Agent makes no representations as to the validity or sufficiency of either this Agreement or of the Units or the Pledge or the Collateral or
the Remarketing Agreement or any other document or instrument referred to or provided for herein or in connection herewith and shall have no responsibility for perfecting or maintaining the perfection of any security interest in the Collateral
nor for making any calculations hereunder. The Purchase Contract Agent shall not be accountable for the use or application by the Corporation of the proceeds in respect of the Purchase Contracts or for funds received and disbursed in accordance
with this Agreement. The Purchase Contract Agent shall have no responsibility or liability with respect to any information, statement or recital in any offering memorandum, prospectus, prospectus supplement or other disclosure material prepared
or distributed with respect to the issuance of the Units.
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Section 7.05. May Hold Units. Any Security Registrar or any
other agent of the Corporation, or the Purchase Contract Agent and its Affiliates, in their individual or any other capacity, may become the owner or pledgee of Units and may otherwise deal with the Corporation, the Collateral Agent or any other
Person with the same rights it would have if it were not Security Registrar or such other agent, or the Purchase Contract Agent. The Corporation may become the owner or pledgee of Units.
Section 7.06. Money Held in Custody; Collateral Documents.
Money or other property held by the Purchase Contract Agent in custody hereunder need not be segregated from the Purchase Contract Agent’s other funds except to the extent required by law or provided herein; provided, however, that when the
Purchase Contract Agent holds cash as a component of the Treasury Portfolio or a Treasury Unit, such cash shall be held in a segregated account hereunder. The Collateral Agent shall not be responsible
for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s liens thereon, or any certificate
prepared by the Corporation in connection therewith, nor shall the Collateral Agent be responsible or liable to the Corporation for any failure to monitor or maintain any portion of the Collateral. Beyond the exercise of reasonable care in the
custody thereof and except as otherwise specifically set forth herein, the Collateral Agent shall not have any duty as to any of the Collateral in its possession or control or in the possession or control of any agent or bailee or any income
thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Collateral Agent (A) shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of
the act or omission of any carrier, forwarding agency or other agent or bailee selected by a Collateral Agent in good faith and with reasonable care, and (B) shall be deemed to have exercised reasonable care in the custody and preservation of any
Collateral in its possession if such Collateral is accorded treatment substantially equal to that which such Collateral Agent accords its own property.
The Purchase Contract Agent shall be under no obligation to invest or pay interest on any money received by it hereunder except as agreed in writing with the Corporation. If no standing
instruction exists at the time any funds are received by the Purchase Contract Agent, the Securities Intermediary or the Collateral Agent, such funds shall remain uninvested without liability for interest or other compensation thereon.
Section 7.07. Compensation and Reimbursement .
The Corporation agrees:
(a) to pay to the Purchase Contract Agent compensation for all services rendered by it hereunder and under the
Remarketing Agreement as the Corporation and the Purchase Contract Agent shall from time to time agree in writing;
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(b) to reimburse the Purchase Contract Agent upon its request for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by the Purchase Contract Agent in accordance with any provision of this Agreement and the Remarketing Agreement (including the reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be caused by its gross negligence or willful misconduct (as determined by a final, non-appealable judgment of a court of competent jurisdiction); and
(c) to indemnify the Purchase Contract Agent and any predecessor Purchase Contract Agent and each of their
respective officers, partners, members, directors, trustees, advisors, employees, agents, sub-agents and affiliates (collectively, with the Purchase Contract Agent, the “Indemnitees”) for, and to hold each Indemnitee harmless against, any liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses and disbursements of any kind or nature whatsoever
(including reasonable fees and expenses of outside counsel) incurred solely without gross negligence or willful misconduct (as determined by a final, non-appealable judgment of a court of competent jurisdiction) on its part, arising out of or in
connection with the acceptance, administration or performance of its duties hereunder and under the Remarketing Agreement, including the Indemnitees’ reasonable and out-of-pocket costs and expenses of enforcing this Agreement or the Remarketing
Agreement and of defending themselves against any claim or liability in connection with the exercise or performance of any of the Purchase Contract Agent’s powers or duties hereunder or thereunder (whether asserted by a Holder, the Corporation or
otherwise) or of enforcing the provisions of this Section. The Purchase Contract Agent shall promptly notify the Corporation of any third-party claim of which a Responsible Officer has received written notice and which may give rise to the
indemnity hereunder and give the Corporation the opportunity to control the defense of such claim with counsel reasonably satisfactory to the applicable Indemnitee, and the Purchase Contract Agent shall provide reasonable cooperation at the
Corporation’s expense in the defense. Each Indemnitee may have separate counsel and the Corporation shall pay the fees and expenses of such counsel. Failure by the Purchase Contract Agent to so notify the Corporation shall not relieve the
Corporation of its obligations hereunder. Any settlement which affects the Purchase Contract Agent may not be entered into without the written consent of the Purchase Contract Agent, unless the Purchase Contract Agent is given a full and
unconditional release from liability with respect to the claims covered thereby and such settlement does not include a statement or admission of fault, culpability or failure to act by or on behalf of the Purchase Contract Agent.
The provisions of this Section shall survive the resignation and removal of the Purchase Contract Agent, the satisfaction or discharge of the Units and the Purchase Contracts and the termination of
this Agreement.
When the Purchase Contract Agent incurs expenses or renders services in connection with an “Event of Default” specified in Section 6.1(d) or (e) of the Base Indenture or any event specified in the
first sentence of the second paragraph of Section 5.11(d), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable
Federal, state or provincial bankruptcy, insolvency or other similar law. “Purchase Contract Agent” for the purposes of this Section 7.07 shall include any predecessor Purchase Contract Agent and the Purchase Contract Agent in each of its
capacities hereunder and each agent, custodian and other person employed to act hereunder; provided, however, that the gross negligence or willful misconduct of any Purchase Contract Agent
hereunder shall not affect the rights of any other Purchase Contract Agent hereunder.
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Section 7.08. Corporate Purchase Contract Agent Required; Eligibility. There shall at all times be a Purchase Contract Agent hereunder which shall be a Person 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 exercise corporate trust powers and having (or being a member of a bank holding company having) a combined capital and surplus of at least $50,000,000, subject to supervision or examination by Federal or State authority and having or having an
agent having a corporate trust office in the continental United States of America, if there be such a Person in the continental United States of America, qualified and eligible under this Article and willing to act on reasonable terms. If such
Person publishes or files 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 Person shall be
deemed to be its combined capital and surplus as set forth in its most recent report of condition so published or filed. If at any time the Purchase Contract 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 hereinafter specified in this Article.
Section 7.09. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Purchase Contract Agent and no appointment of a successor Purchase Contract Agent pursuant to this Article shall become effective until the acceptance of appointment by the successor Purchase Contract Agent in
accordance with the applicable requirements of Section 7.10.
(b) The Purchase Contract Agent may resign at any time by giving written notice thereof to the Corporation 30
days prior to the effective date of such resignation. If the instrument of acceptance by a successor Purchase Contract Agent required by Section 7.10 shall not have been delivered to the Purchase Contract Agent within 30 days after the giving of
such notice of resignation, the resigning Purchase Contract Agent may petition, at the expense of the Corporation, any court of competent jurisdiction for the appointment of a successor Purchase Contract Agent.
(c) The Purchase Contract Agent may be removed at any time by Act of the Holders of a majority in number of the
Outstanding Units delivered to the Purchase Contract Agent and the Corporation. If the instrument of acceptance by a successor Purchase Contract Agent required by Section 7.10 shall not have been delivered to the Purchase Contract Agent within
30 days after such Act, the Purchase Contract Agent being removed may petition, at the expense of the Corporation, any court of competent jurisdiction for the appointment of a successor Purchase Contract Agent.
(d) If at any time:
(i) the Purchase Contract Agent fails to comply with Section 310(b) of the TIA, as if the
Purchase Contract Agent were an indenture trustee under an indenture qualified under the TIA, and shall fail to resign after written request therefor by the Corporation or by any Holder who has been a bona fide Holder of a Unit for at least six
months;
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(ii) the Purchase Contract Agent shall cease to be eligible under Section 7.08 and shall
fail to resign after written request therefor by the Corporation or by any such Holder; or
(iii) the Purchase Contract Agent shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Purchase Contract Agent or of its property shall be appointed or any public officer shall take charge or control of the Purchase Contract Agent or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Corporation by a Board Resolution may remove the Purchase Contract Agent, or (ii) any Holder who has been a bona fide Holder of a Unit 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 Purchase Contract Agent and the appointment of a successor Purchase Contract Agent.
(e) If the Purchase Contract Agent shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of the Purchase Contract Agent for any cause, the Corporation, by a Board Resolution, shall promptly appoint a successor Purchase Contract Agent and shall comply with the applicable requirements of Section 7.10. If no
successor Purchase Contract Agent shall have been so appointed by the Corporation and accepted appointment in the manner required by Section 7.10, any Holder who has been a bona fide Holder of a Unit for at least six months, on behalf of itself
and all others similarly situated, or the Purchase Contract Agent may petition any court of competent jurisdiction for the appointment of a successor Purchase Contract Agent.
(f) The Corporation shall give, or shall cause such successor Purchase Contract Agent to give, notice of each
resignation and each removal of the Purchase Contract Agent and each appointment of a successor Purchase Contract Agent by delivering written notice of such event by first-class mail, postage prepaid or electronic delivery, in each case, to all
Holders as their names and addresses appear in the applicable Security Register. Each notice shall include the name of the successor Purchase Contract Agent and the address of its Corporate Trust Office.
Section 7.10. Acceptance of Appointment by Successor. (a) In
case of the appointment hereunder of a successor Purchase Contract Agent, every such successor Purchase Contract Agent so appointed shall execute, acknowledge and deliver to the Corporation and to the retiring Purchase Contract Agent an
instrument accepting such appointment, and thereupon the resignation or removal of the retiring Purchase Contract Agent shall become effective and such successor Purchase Contract Agent, without any further act, deed or conveyance, shall become
vested with all the rights, powers, agencies and duties of the retiring Purchase Contract Agent; but, on the request of the Corporation or the successor Purchase Contract Agent, such retiring Purchase Contract Agent shall, upon payment of amounts
owed to it pursuant to Section 7.07, execute and deliver an instrument transferring to such successor Purchase Contract Agent all the rights, powers and trusts of the retiring Purchase Contract Agent and duly assign, transfer and deliver to such
successor Purchase Contract Agent all property and money held by such retiring Purchase Contract Agent hereunder.
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(b) Upon request of any such successor
Purchase Contract Agent, the Corporation shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Purchase Contract Agent all such rights, powers and agencies referred to in clause (a) of
this Section 7.10.
(c) No successor Purchase Contract Agent
shall accept its appointment unless at the time of such acceptance such successor Purchase Contract Agent shall be qualified and eligible under this Article 7.
Section 7.11. Merger, Conversion,
Consolidation, Amalgamation, Arrangement or Succession to Business. Any Person into which the Purchase Contract Agent may be merged, amalgamated or converted or with which it may be consolidated or arranged, or any Person resulting
from any merger, conversion, amalgamation, arrangement or consolidation to which the Purchase Contract Agent shall be a party, or any Person succeeding to all or substantially all the corporate trust business of the Purchase Contract Agent
(including the administration of this Agreement), shall be the successor of the Purchase Contract Agent hereunder, provided that such Person shall be otherwise qualified and eligible under this Article 7, without the execution or filing of
any paper or any further act on the part of any of the parties hereto. In case any Certificates shall have been authenticated and executed on behalf of the Holders, but not delivered, by the Purchase Contract Agent then in office, any
successor by merger, conversion, amalgamation, arrangement or consolidation to such Purchase Contract Agent may adopt such authentication and execution and deliver the Certificates so authenticated and executed with the same effect as if such
successor Purchase Contract Agent had itself authenticated and executed such Units.
Section 7.12. Preservation of Information.
The Purchase Contract Agent shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders received by the Purchase Contract Agent in its capacity as Security Registrar.
Section 7.13. No Obligations of Purchase
Contract Agent. Except to the extent otherwise expressly provided in this Agreement, the Purchase Contract Agent assumes no obligations and shall not be subject to any liability under this Agreement, the Remarketing Agreement or any
Purchase Contract in respect of the obligations of the Holder of any Unit thereunder. All calculations and determinations of any Make-Whole Shares, make-whole amounts, rates, market values and any adjustments to Reference Price or the
Threshold Appreciation Price shall be made by the Corporation or its agent or designee based on their good faith calculations, and the Purchase Contract Agent shall have no responsibility with respect thereto. The Corporation agrees, and
each Holder of a Certificate, by its acceptance thereof, shall be deemed to have agreed, that the Purchase Contract Agent’s execution of the Certificates on behalf of the Holders shall be solely as agent and attorney-in-fact for the Holders,
and that the Purchase Contract Agent shall have no obligation to perform such Purchase Contracts on behalf of the Holders, except to the extent expressly provided in Article 5. Anything contained in this Agreement to the contrary
notwithstanding, in no event shall the Purchase Contract Agent or its officers, directors, employees or agents be liable under this Agreement or the Remarketing Agreement for (i) indirect, special, punitive, or consequential loss or damage of
any kind whatsoever, including lost profits, whether or not the likelihood of such loss or damage was known to the Purchase Contract Agent and regardless of the form of action, or (ii) any failure or delay in the performance of its
obligations under this Agreement because of circumstances beyond its control, including, without limitation, acts of God; earthquake; fires; floods; wars; civil or military disturbances; terrorist acts; sabotage; epidemics; riots;
interruptions, loss or malfunctions of utilities; labor disputes; or acts of civil or military authority or governmental actions, in each case, which delay, restrict or prohibit the providing of services contemplated by this Agreement; it
being understood that the Purchase Contract Agent shall use commercially reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under such circumstances.
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Section 7.14. Acknowledgement of Appointment.
The Corporation hereby acknowledges the appointment of The Bank of New York Mellon Trust Company, N.A. (“BNYM”) to act as Purchase Contract Agent on behalf of the Holders hereunder and under the Remarketing Agreement or under any other
document or instrument referred to or provided for herein or in connection herewith, as applicable, and as their attorney-in-fact hereunder and under the Remarketing Agreement or under any other document or instrument referred to or provided
for herein or in connection herewith, as applicable. The Corporation accepts the authorizations, appointments, acknowledgments and other actions taken by the Purchase Contract Agent in accordance with this Agreement, the Remarketing
Agreement or any other document or instrument referred to or provided for herein or in connection herewith.
ARTICLE 8
SUPPLEMENTAL AGREEMENTS
SUPPLEMENTAL AGREEMENTS
Section 8.01. Supplemental Agreements
without Consent of Holders. Without the consent of any Holders, the Corporation, the Purchase Contract Agent, the Collateral Agent, the Custodial Agent and the Securities Intermediary, at any time and from time to time, may enter into
one or more amendments to this Agreement or agreements supplemental hereto, in form satisfactory to the Corporation, the Purchase Contract Agent and the Collateral Agent, the Custodial Agent and the Securities Intermediary, to:
(a) evidence the succession of another Person
to the Corporation’s obligations in accordance with Article 9;
(b) add to the covenants of the Corporation
for the benefit of the Holders, or surrender any right or power herein conferred upon the Corporation;
(c) evidence and provide for the acceptance of
appointment hereunder by a successor Purchase Contract Agent, Collateral Agent, Securities Intermediary or Custodial Agent in accordance with Article 7 or 15, as the case may be;
(d) make provision with respect to the rights
of Holders pursuant to the requirements of Section 5.05(b)(i);
(e) cure any ambiguity or to correct or
supplement any provisions herein that may be inconsistent with any other provision herein; or
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(f) make such other provisions in regard to
matters or questions arising under this Agreement or to make any other changes in the provisions of this Agreement, in each case, provided that such amendment does not adversely affect the interests of any Holders; it being understood that
any amendment made to conform the provisions of this Agreement to the description of this Agreement, the Units and the Purchase Contracts contained in the preliminary prospectus supplement dated June 16, 2021, relating to the Units
(including, without limitation, under the sections entitled “Description of the Equity Units”, “Description of the Purchase Contracts”, “Certain Provisions of the Purchase Contract and Pledge Agreement” and “Description of the Remarketable
Notes”), as supplemented and/or amended by the Term Sheet based upon an Officers’ Certificate delivered to the Purchase Contract Agent will be deemed not to adversely affect the interests of the Holders.
Section 8.02. Supplemental Agreements with
Consent of Holders. With the consent of the Holders of not less than a majority of the Outstanding Units, with Holders of Corporate Units and Treasury Units voting together as one class, including without limitation the consent of the
Holders obtained in connection with an issuer bid, tender offer or exchange offer, by Act of said Holders delivered to the Corporation and the Purchase Contract Agent, the Corporation, the Purchase Contract Agent, the Collateral Agent, the
Securities Intermediary and the Custodial Agent may enter into one or more amendments to this Agreement or an agreement or agreements supplemental hereto for the purpose of modifying in any manner the terms of the Purchase Contracts, or the
provisions of this Agreement or the rights of the Holders in respect of the Units; provided, however, that no such amendment or supplemental agreement shall, without the consent of the Holder of each Outstanding Purchase
Contract affected thereby:
(a) subject to the Corporation’s right to
defer Contract Adjustment Payments, extend or delay any Payment Date;
(b) impair the Holders’ right to institute
suit for the enforcement of any Purchase Contract or payment of any Contract Adjustment Payments or deferred Contract Adjustment Payments (including Compounded Contract Adjustment Payments thereon);
(c) except as required pursuant to
Section 5.05(a), reduce the number of Common Shares purchasable pursuant to any Purchase Contract, increase the Purchase Price of the Common Shares upon settlement of any Purchase Contract, change the Purchase Contract Settlement Date or
change the right to effect an Early Settlement or Fundamental Change Early Settlement in a manner adverse to the Holder;
(d) increase the amount or change the type of
Collateral required to be Pledged to secure a Holder’s Obligations;
(e) impair the right of the Holder of any
Purchase Contract to receive distributions on the Collateral or otherwise adversely affect the Holder’s rights in or to such Collateral;
(f) reduce any Contract Adjustment Payments
or any deferred Contract Adjustment Payments (including Compounded Contract Adjustment Payments thereon) or change any place where, or the coin or currency in which, any Contract Adjustment Payment is payable; or
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(g) reduce the
percentage of the Outstanding Purchase Contracts whose Holders’ consent is required for any modification, amendment or waiver of the provisions of this Agreement or the Purchase Contracts;
provided that if any such amendment or supplemental agreement would adversely affect only the
Corporate Units or only the Treasury Units, then only the affected class of Holders as of the record date for the Holders entitled to vote thereon will be entitled to vote on such amendment or supplemental agreement, and such amendment or
supplemental agreement shall not be effective except with the consent of Holders of not less than a majority of such class or, in the case of any amendment or supplemental agreement having the effects specified in clauses (a) through (g) of
this Section 8.02, each Holder affected thereby. It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental agreement, but it shall be sufficient if such Act shall
approve the substance thereof.
Section 8.03. Execution of Supplemental
Agreements. In executing, or accepting the additional agencies created by any amendment or supplemental agreement permitted by this Article 8 or the modifications thereby of the agencies created by this Agreement, the Purchase Contract
Agent, the Collateral Agent, the Securities Intermediary and the Custodial Agent shall be provided, and (subject to Section 7.01 with respect to the Purchase Contract Agent) shall be fully authorized and protected in relying upon, an
Officers’ Certificate and an Opinion of Counsel stating that the execution of such amendment or supplemental agreement is authorized or permitted by this Agreement and that any and all conditions precedent to the execution and delivery of
such amendment or supplemental agreement have been satisfied. The Purchase Contract Agent, the Collateral Agent, the Securities Intermediary and the Custodial Agent may, but shall not be obligated to, enter into any such amendment or
supplemental agreement that affects their own rights, duties or immunities under this Agreement or otherwise.
Section 8.04. Effect of Supplemental
Agreements. Upon the execution of any amendment or supplemental agreement under this Article 8, this Agreement shall be modified in accordance therewith, and such amendment or supplemental agreement shall form a part of this Agreement
for all purposes; and every Holder of Certificates theretofore or thereafter authenticated, executed on behalf of the Holders and delivered hereunder, shall be bound thereby.
Section 8.05. Reference to Supplemental
Agreements. Certificates authenticated, executed on behalf of the Holders and delivered after the execution of any amendment or supplemental agreement pursuant to this Article may, and shall if required by the Purchase Contract Agent,
bear a notation in form approved by the Purchase Contract Agent as to any matter provided for in such amendment or supplemental agreement. If the Corporation shall so determine, new Certificates so modified as to conform, in the opinion of
the Purchase Contract Agent and the Corporation, to any such amendment or supplemental agreement may be prepared and executed by the Corporation and authenticated, executed on behalf of the Holders and delivered by the Purchase Contract Agent
in exchange for Outstanding Certificates.
ARTICLE 9
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 9.01. Covenant Not to Consolidate,
Merge, Convey, Transfer or Lease Property except under Certain Conditions. The Corporation shall not consummate (1) any consolidation, merger, arrangement or amalgamation of the Corporation with or into any Person or Persons or (2) any
sale, lease or other transfer in one transaction or a series of related transactions of all or substantially all of its consolidated assets to any Person other than one of its subsidiaries, unless
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(a) the Corporation is the continuing entity
or the successor entity is a corporation organized and existing under the laws of Canada (or any province or territory of Canada) or the United States of America or a State thereof (or the District of Columbia) and such corporation expressly
assumes all of the Corporation’s responsibilities and liabilities under the Purchase Contracts, the Corporate Units, the Treasury Units, this Agreement, the Remarketing Agreement (if any) and the Indenture by one or more supplemental
agreements in form satisfactory to the Purchase Contract Agent, the Collateral Agent and the Indenture Trustees and that complies with Article 8 hereof or the applicable provisions of the Remarketing Agreement or the Indenture, as the case
may be, executed and delivered to the Purchase Contract Agent, the Collateral Agent and the Indenture Trustees by such corporation, and
(b) the Corporation (if it is the continuing
entity) or such successor corporation will not, immediately after such consolidation, merger, arrangement or amalgamation, or such sale, lease or other transfer, be in default in the performance of its obligations or covenants under such
agreements.
Section 9.02. Rights and Duties of Successor
Person. In case of any such consolidation, merger, arrangement, amalgamation, sale, lease or other transfer, and upon any such assumption by the successor corporation in accordance with Section 9.01, such successor corporation shall
succeed to and be substituted for the Corporation, with the same effect as if it had been named in the Purchase Contracts, the Corporate Units, the Treasury Units, this Agreement and the Remarketing Agreement (if any) and (other than in the
case of a lease) the Corporation shall be relieved of any further obligation under the Purchase Contracts, the Corporate Units, the Treasury Units, this Agreement and the Remarketing Agreement (if any). Such successor corporation thereupon
may cause to be signed, and may issue either in its own name or in the name of the Corporation any or all of the Certificates evidencing Units issuable hereunder which theretofore shall not have been signed by the Corporation and delivered to
the Purchase Contract Agent; and, upon the order of such successor instead of the Corporation, and subject to all the terms, conditions and limitations in this Agreement prescribed, the Purchase Contract Agent shall authenticate and execute
on behalf of the Holders as their attorney-in-fact and deliver any Certificates which previously shall have been signed and delivered by the officers of the Corporation to the Purchase Contract Agent for authentication and execution, and any
Certificate evidencing Units which such successor corporation thereafter shall cause to be signed and delivered to the Purchase Contract Agent for that purpose. All the Certificates issued shall in all respects have the same legal rank and
benefit under this Agreement as the Certificates theretofore or thereafter issued in accordance with the terms of this Agreement as though all of such Certificates had been issued at the date of the execution hereof.
In case of any such merger, consolidation, arrangement, amalgamation, sale, lease or other transfer such change in phraseology and form (but not in substance) may be made in the Certificates
evidencing Units thereafter to be issued as may be appropriate.
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Section 9.03. Officers’ Certificate and
Opinion of Counsel Given to Purchase Contract Agent. The Purchase Contract Agent, subject to Section 7.01 and Section 7.03, shall be entitled to receive an Officers’ Certificate and an Opinion of Counsel and rely thereon as conclusive
evidence that any such merger, consolidation, arrangement, amalgamation, sale, lease or other transfer, and any such assumption, complies with the provisions of this Article 9 and that all conditions precedent to the consummation of any such
merger, consolidation, arrangement, amalgamation, sale, lease or other transfer have been met.
ARTICLE 10
COVENANTS
COVENANTS
Section 10.01. Performance under Purchase
Contracts. The Corporation covenants and agrees for the benefit of the Holders from time to time of the Units that it will duly and punctually perform its obligations under the Purchase Contracts in accordance with the terms of the
Purchase Contracts and this Agreement.
Section 10.02. Maintenance of Office or Agency.
(a) The Corporation will maintain in the continental United States of America, an office or agency, which may be the office of the Purchase Contract Agent or its agent, where Certificates may be presented or surrendered for acquisition of
Common Shares upon settlement of the Purchase Contracts on the Purchase Contract Settlement Date or upon Early Settlement or Fundamental Change Early Settlement and for transfer of Collateral upon occurrence of a Termination Event, Early
Settlement or Fundamental Change Early Settlement, where Certificates may be surrendered for registration of transfer or exchange, or for a Collateral Substitution and where notices and demands to or upon the Corporation in respect of the
Units and this Agreement may be served. The Corporation will give prompt written notice to the Purchase Contract Agent of the location, and any change in the location, of such office or agency. If at any time the Corporation shall fail to
maintain any such required office or agency or shall fail to furnish the Purchase Contract Agent with the address thereof, such presentations, surrenders, notices and demands may be made or served at the foregoing Corporate Trust Office and
the Corporation hereby appoints the Purchase Contract Agent as its agent to receive all such presentations, surrenders, notices and demands. The Corporation initially designates the Corporate Trust Office as such office of the Corporation.
(b) The Corporation may also from time to time
designate one or more other offices or agencies where Certificates may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Corporation of its obligation to maintain an office or agency in the continental United States of America for such purposes. The Corporation will give prompt written notice to the Purchase
Contract Agent of any such designation or rescission and of any change in the location of any such other office or agency.
Section 10.03. Corporation to Reserve Common
Shares. The Corporation shall at all times prior to the Purchase Contract Settlement Date reserve and keep available, free from preemptive rights, out of its authorized Common Shares the maximum number of Common Shares issuable against
payment (including the maximum number of Make-Whole Shares issuable upon a Fundamental Change Early Settlement) in respect of all Purchase Contracts constituting a part of the Units evidenced by Outstanding Certificates.
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Section 10.04. Covenants as to Common Shares;
Listing. (a) The Corporation covenants that all Common Shares which may be issued against tender of payment in respect of any Purchase Contract constituting a part of the Outstanding Units will, upon issuance, be duly authorized,
validly issued, fully paid and nonassessable.
(b) The Corporation further covenants that, if at
any time the Common Shares shall be listed on the New York Stock Exchange, the Toronto Stock Exchange or any other national securities exchange or automated quotation system, the Corporation shall, if permitted by the rules of such exchange
or automated quotation system, list and keep listed, so long as the Common Shares shall be so listed on each such exchange or automated quotation system, all Common Shares issuable upon settlement of Purchase Contracts.
(c) The Corporation further covenants that it
shall use its commercially reasonable efforts to effect the listing of the Corporate Units on the New York Stock Exchange within 30 days of the date of initial issuance of the Corporate Units.
Section 10.05. Statements of Officers of the
Corporation as to Default. The Corporation will deliver to the Purchase Contract Agent, within 120 days after the end of each fiscal year of the Corporation ending after the date hereof (which fiscal year ends on December 31, 2021,
December 31, 2022 and December 31, 2023), an Officers’ Certificate stating whether or not to the knowledge of the signers thereof the Corporation is in default in the performance and observance of any of the terms, provisions and conditions
of this Agreement, the Units or the Purchase Contracts and if the Corporation shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
Section 10.06. ERISA. Each Holder, by
acceptance of the Units, any Common Shares issuable upon settlement of the Purchase Contract or Notes, will be deemed to have represented and warranted that from and including the date of its acquisition of any such securities through and
including the date of the satisfaction of the obligation under the Purchase Contract and/or the disposition of any such securities either (i) no portion of the assets used by such Holder to acquire or hold the Units, Common Shares issuable
upon settlement of the Purchase Contract or Notes (or by any Beneficial Owner with a Book-Entry Interest in such Units that is a Plan or that used assets of a Plan to acquire such Book-Entry Interest) constitutes assets of any Plan or
(ii) (1) its acquisition, holding and disposition of the Units, Common Shares issuable upon settlement of the Purchase Contract or Notes, as applicable, will not violate ERISA’s fiduciary standards or other requirements under ERISA, the Code
or Similar Laws, or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or a violation of any applicable Similar Laws, and (2) neither the Corporation nor any of its subsidiaries is or will be
deemed to be a fiduciary with respect to any Plan.
Section 10.07. Tax Treatment.
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(a) U.S. Income Tax Treatment. The Corporation, the Purchase Contract Agent and the Collateral Agent covenant and agree
and, by acceptance of a Unit or Book-Entry Interest, each Holder and Beneficial Owner will be deemed to have agreed (unless otherwise required by any taxing authority or a change in applicable law after the initial issuance of the applicable
Corporate Units) (i) to treat each Beneficial Owner of a Corporate Unit or a Treasury Unit as the owner, separately, of each of the applicable Purchase Contract, the related Note and the applicable interests in the Collateral, including the
Notes underlying the Applicable Ownership Interests in Notes, the Applicable Ownership Interests in the Treasury Portfolio or Treasury Security, as the case may be, for U.S. federal, state and local income tax purposes, (ii) to treat the Note
as indebtedness for all U.S. federal, state and local income tax purposes and (iii) with respect to Holders (or Beneficial Owners) who purchase Corporate Units upon issuance, to allocate, as of the date hereof, 100% of the purchase price paid
for the Corporate Units to its ownership interest in the Notes and 0% to each Purchase Contract, which will establish each Beneficial Owner’s initial tax basis in each Purchase Contract as $0 and each Beneficial Owner’s initial tax basis in the
Note as $50.
(b) Canadian Tax Reporting. The Corporation covenants and agrees, and by acceptance of a Unit or Book-Entry Interest, each
Holder and Beneficial Owner who purchase Corporate Units upon issuance will be deemed to have agreed to allocate 100% of the issue price of a Corporate Unit to the Note, and to allocate 0% to the Purchase Contract, and the applicable parties
agree to file all Canadian income tax returns and information returns in a manner consistent with the foregoing.
Section 10.08. Remarketing Agreement. On
or prior to the date that is 20 days prior to the first day of the Final Remarketing Period or, if the Corporation shall have elected to conduct an Optional Remarketing, on or prior to the date that is 20 days prior to the first day of the
Optional Remarketing Period, the Corporation shall have entered into, and shall have caused the Purchase Contract Agent and the Remarketing Agent(s) to have entered into, the Remarketing Agreement.
ARTICLE 11
PLEDGE
PLEDGE
Section 11.01. Pledge. Each Holder,
acting through the Purchase Contract Agent as such Holder’s attorney-in-fact, and the Purchase Contract Agent, acting solely as such attorney-in-fact, hereby pledges and grants to the Collateral Agent, as agent of and for the benefit of the
Corporation, a continuing first priority perfected security interest in and to, and a lien upon and right of set-off against, all of such Person’s right, title and interest in and to the Collateral, whether now existing or hereafter arising,
to secure the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Obligations. The Collateral Agent shall have all of the rights, remedies and recourses with respect to the
Collateral afforded a secured party by the UCC, in addition to, and not in limitation of, the other rights, remedies and recourses afforded to the Collateral Agent by this Agreement or other applicable law.
Section 11.02. Termination. As to each
Holder, the Pledge created hereby shall terminate upon the payment and performance in full of such Holder’s Obligations, or (if earlier) upon any Termination Event. Promptly after such termination (as notified to the Collateral Agent by the
Corporation), the Collateral Agent shall instruct the Securities Intermediary to Transfer the portion of the Collateral attributable to such Holder to the Purchase Contract Agent for distribution to such Holder in accordance with the terms
provided for herein, free and clear of the Pledge created hereby. As promptly as practicable following the termination of the Pledge with respect to any Collateral pursuant to this Section 11.02 or any other provision of this Agreement, the
Corporation shall terminate any UCC financing statements that have been filed that relate to such Collateral, and take any other action that the Purchase Contract Agent or any Holder reasonably requests, to evidence the termination of the
Pledge, in each case, at the sole expense of the Corporation.
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ARTICLE 12
ADMINISTRATION OF COLLATERAL
ADMINISTRATION OF COLLATERAL
Section 12.01. Initial Deposit of Notes.
(a) Prior to or concurrently with the execution and delivery of this Agreement, the Purchase Contract Agent, on behalf of the initial Holders of the Corporate Units, shall Transfer to the Securities Intermediary, for credit to the Collateral
Account, the Applicable Ownership Interests in Notes and the Notes underlying such Applicable Ownership Interests in Notes by delivering such Notes indorsed in blank to the Securities Intermediary. The Securities Intermediary shall indicate
by book-entry that a security entitlement with respect to such Applicable Ownership Interests in Notes (and the Notes underlying such Applicable Ownership Interests in Notes) has been credited to the Collateral Account.
(b) The Collateral Agent may, at any time or from
time to time, in its sole discretion, cause any or all securities or other property underlying any financial assets credited to the Collateral Account to be registered in the name of the Securities Intermediary, the Collateral Agent or their
respective nominees.
Section 12.02. Establishment of Collateral
Account. The Securities Intermediary hereby confirms that:
(a) the Securities Intermediary has established
the Collateral Account;
(b) the Collateral Account is a “securities
account” (within the meaning of Section 8-501(a) of the UCC), and for purposes of the Hague Securities Convention, the Collateral Account shall be deemed to be a “securities account” (within the meaning of Article 1(1)(b) of the Hague
Securities Convention);
(c) subject to the terms of this Agreement, the
Securities Intermediary shall identify in its records the Collateral Agent as the entitlement holder entitled to exercise the rights that comprise any financial asset credited to the Collateral Account;
(d) all property delivered to the Securities
Intermediary pursuant to this Agreement, including any Applicable Ownership Interests in the Treasury Portfolio or Treasury Securities and the Permitted Investments, will be credited promptly to the Collateral Account;
(e) all securities or other property underlying
any financial assets credited to the Collateral Account shall be (i) registered in the name of the Purchase Contract Agent and indorsed to the Securities Intermediary or in blank, (ii) registered in the name of the Securities Intermediary or
(iii) credited to another securities account maintained in the name of the Securities Intermediary; and
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(f) it is a “securities intermediary” (as
defined in Section 8-102(a)(14) of the UCC) and an “intermediary” (as defined in Article 1(c) of the Hague Securities Convention) in respect of the Collateral Account.
In no case will any financial asset credited to the Collateral Account be registered in the name of the Purchase Contract Agent (in its capacity as such) or any Holder or specially indorsed to
the Purchase Contract Agent (in its capacity as such) or any Holder, unless such financial asset has been further indorsed to the Securities Intermediary or in blank.
Section 12.03. Treatment as Financial Assets.
Each item of property (whether investment property, financial asset, security, instrument or cash) credited to the Collateral Account shall be treated as a financial asset.
Section 12.04. Sole Control by Collateral
Agent. Except as provided in Section 15.01, at all times prior to the termination of the Pledge, the Collateral Agent shall have sole control of the Collateral Account, and the Securities Intermediary shall take instructions and
directions, and comply with entitlement orders, with respect to the Collateral Account or any financial asset credited thereto solely from the Collateral Agent. If at any time the Securities Intermediary shall receive an entitlement order
issued by the Collateral Agent and relating to the Collateral Account, the Securities Intermediary shall comply with such entitlement order without further consent by the Purchase Contract Agent or any Holder or any other Person. Except as
otherwise permitted under this Agreement, until termination of the Pledge, the Securities Intermediary will not comply with any entitlement orders issued by the Purchase Contract Agent or any Holder.
Section 12.05. Jurisdiction. The Collateral Account, and the rights and obligations of the Securities Intermediary, the Collateral Agent, the Purchase Contract Agent and the Holders with respect thereto, shall be governed by the internal
laws of the State of New York. Regardless of any provision in any other agreement, the Securities Intermediary’s jurisdiction is the State of New York for purposes of the UCC. As permitted by Article 4 of the Hague Securities Convention, the
parties hereto agree that the law of the State of New York shall govern each of the issues specified in Article 2(1) of the Hague Securities Convention. In
addition, to the extent that any agreements between the Securities Intermediary and any other Person governing the Collateral Account (collectively, the “Account Agreements”) do not provide that the laws of the State of New York shall govern all of the issues specified in Article 2(1) of the Hague Securities Convention, each Account Agreement is hereby amended to provide that the
law applicable to all of the issues specified in Article 2(1) of the Hague Securities Convention shall be the laws of the State of New York. The Securities Intermediary represents that each Account Agreement (a) is governed by the laws of the
State of New York and (b) if any Account Agreement expressly provides that a law is applicable to all the issues specified in Article 2(1) of the Hague Securities Convention, that law is the laws of the State of New York. At the time of its
entry into the governing law provisions of this Agreement, the Securities Intermediary had an office located in the United States that satisfies the requirements of clauses (1) and (2) of Article 4 of the Hague Securities Convention.
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Section 12.06. No Other Claims. Except
for the claims and interest of the Collateral Agent and of the Purchase Contract Agent and the Holders in the Collateral Account, the Securities Intermediary (without having conducted any investigation) does not know of any claim to, or
interest in, the Collateral Account or in any financial asset credited thereto. If the Securities Intermediary receives written notice at its corporate trust office identified on the signature page hereto or if a Responsible Officer has
actual knowledge that any Person asserts any lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Collateral Account or in any financial asset carried
therein, the Securities Intermediary will as soon as practicable notify the Collateral Agent and the Purchase Contract Agent and the Purchase Contract Agent shall notify the Corporation.
Section 12.07. Investment and Release.
Proceeds of financial assets from time to time credited to the Collateral Account shall be invested and reinvested to the extent provided in this Agreement. At all times prior to termination of the Pledge, no property shall be released from
the Collateral Account except in accordance with this Agreement or upon written instructions of the Collateral Agent.
Section 12.08. Statements and Confirmations.
The Securities Intermediary will as soon as practicable send copies of all statements, confirmations and other correspondence concerning the Collateral Account and any financial assets credited thereto simultaneously to each of the Purchase
Contract Agent and the Collateral Agent at their addresses for notices under this Agreement.
Section 12.09. [Reserved.]
Section 12.10. No Other Agreements. The
Securities Intermediary has not entered into, and prior to the termination of the Pledge will not enter into, any agreement with any other Person relating to the Collateral Account or any financial assets credited thereto, including, without
limitation, any agreement to comply with entitlement orders of any Person other than the Collateral Agent.
Section 12.11. Powers Coupled with an Interest.
The rights and powers granted in this Agreement to the Collateral Agent have been granted in order to perfect its security interests in the Collateral Account, are powers coupled with an interest and will be affected neither by the bankruptcy
of the Purchase Contract Agent or any Holder nor by the lapse of time. The obligations of the Securities Intermediary under this Purchase Contract and Pledge Agreement shall continue in effect until the termination of the Pledge.
Section 12.12. Waiver of Lien; Waiver of
Set-off. The Securities Intermediary waives any security interest, lien or right to make deductions or set-offs that it may now have or hereafter acquire in or with respect to the Collateral Account, any financial asset credited
thereto or any security entitlement in respect thereof. Neither the financial assets credited to the Collateral Account nor the security entitlements in respect thereof will be subject to deduction, set-off, banker’s lien, or any other right
in favor of any person other than the Corporation.
ARTICLE 13
RIGHTS AND REMEDIES OF THE COLLATERAL AGENT
RIGHTS AND REMEDIES OF THE COLLATERAL AGENT
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Section 13.01. Rights and Remedies of the
Collateral Agent. (a) In addition to the rights and remedies set forth herein or otherwise available at law or in equity, after a collateral event of default (as specified in Section 13.01(b)) hereunder, the Collateral Agent shall have
all of the rights and remedies with respect to the Collateral of a secured party under the UCC (whether or not the UCC is in effect in the jurisdiction where the rights and remedies are asserted) and the TRADES Regulations and such additional
rights and remedies to which a secured party is entitled under the laws in effect in any jurisdiction where any rights and remedies hereunder may be asserted. Without limiting the generality of the foregoing, such remedies may include, to
the extent permitted by applicable law, (1) retention of the Notes underlying Pledged Applicable Ownership Interests in Notes, the Pledged Treasury Securities and/or the Pledged Applicable Ownership Interests in the Treasury Portfolio in full
satisfaction of the Holders’ obligations under the Purchase Contracts and the Purchase Contract Agreement and/or (2) sale of the Notes underlying Pledged Applicable Ownership Interests in Notes, the Pledged Treasury Securities or the Pledged
Applicable Ownership Interests in the Treasury Portfolio in one or more public or private sales.
(b) Without limiting any rights or powers
otherwise granted by this Agreement to the Collateral Agent or under applicable law, in the event the Collateral Agent is unable to make payments to the Corporation on account of Proceeds of (i) the Notes underlying Pledged Applicable
Ownership Interests in Notes (other than any interest payments thereon), (ii) Pledged Applicable Ownership Interests in the Treasury Portfolio, or (iii) the Pledged Treasury Securities as provided in this Agreement in satisfaction of the
Obligations of the Holder of the Units of which such Notes underlying Pledged Applicable Ownership Interests in Notes, such Pledged Applicable Ownership Interests in the Treasury Portfolio or such Pledged Treasury Securities are a part under
the related Purchase Contracts, the inability to make such payments shall constitute a “collateral event of default” hereunder and the Collateral Agent shall, for the benefit of the Corporation, have and may exercise, with reference to
such Notes underlying Pledged Applicable Ownership Interests in Notes, Pledged Treasury Securities or Pledged Applicable Ownership Interests in the Treasury Portfolio, as applicable, any and all of the rights and remedies available to a
secured party under the UCC and the TRADES Regulations after default by a debtor, and as otherwise granted herein or under any applicable law.
(c) Without limiting any rights or powers
otherwise granted by this Agreement to the Collateral Agent or under applicable law, the Collateral Agent is hereby irrevocably authorized to receive, collect and apply to the satisfaction of the Obligations all payments with respect to
(i) the Notes underlying Pledged Applicable Ownership Interests in Notes (other than any interest payments thereon), (ii) the Pledged Treasury Securities and (iii) the Pledged Applicable Ownership Interests in the Treasury Portfolio, subject,
in each case, to the provisions of this Agreement, and as otherwise provided herein.
(d) The Purchase Contract Agent and each
Holder agrees that, from time to time, upon the written request of the Collateral Agent, the Purchase Contract Agent, on behalf of such Holder as the attorney-in-fact of such Holder, shall execute and deliver such further documents and do
such other acts and things as the Collateral Agent may reasonably request in order to maintain the Pledge, and the perfection and priority thereof, and to confirm the rights of the Collateral Agent hereunder. The Purchase Contract Agent
shall have no liability to any Holder for executing any documents or taking any such acts requested by the Collateral Agent hereunder, except for liability for its own grossly negligent acts, its own grossly negligent failure to act or its
own willful misconduct.
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ARTICLE 14
REPRESENTATIONS AND WARRANTIES TO COLLATERAL AGENT;
HOLDER COVENANTS
HOLDER COVENANTS
Section 14.01. Representations and Warranties.
Each Holder from time to time, acting through the Purchase Contract Agent as attorney-in-fact (it being understood that the Purchase Contract Agent shall not be liable for any representation or warranty made by or on behalf of a Holder),
hereby represents and warrants to the Collateral Agent and the Corporation (with respect to such Holder’s interest in the Collateral), which representations and warranties shall be deemed repeated on each day a Holder effects a Transfer of
Collateral, that:
(a) such Holder has the power to grant a
security interest in and lien on the Collateral;
(b) such Holder is the sole beneficial owner
of the Collateral and, in the case of Collateral delivered in physical form, is the sole holder of such Collateral and is the sole beneficial owner of, or has the right to Transfer, the Collateral it Transfers to the Collateral Agent for
credit to the Collateral Account, free and clear of any security interest, lien, encumbrance, call, liability to pay money or other restriction other than the security interest and lien granted under Article 11;
(c) upon the Transfer of the Collateral to
the Securities Intermediary for credit to the Collateral Account, the Collateral Agent, for the benefit of the Corporation, will have a valid and perfected first priority security interest therein (assuming that any central clearing operation
or any securities intermediary or other entity not within the control of the Holder involved in the Transfer of the Collateral, including the Collateral Agent and the Securities Intermediary, gives the notices and takes the action required of
it hereunder and under applicable law for perfection of that interest and assuming the establishment and exercise of control pursuant to Article 12); and
(d) the execution and performance by the
Holder of its obligations under this Agreement will not result in the creation of any security interest, lien or other encumbrance on the Collateral (other than the security interest and lien granted under Article 11) or violate any provision
of any existing law or regulation applicable to it or of any mortgage, charge, pledge, indenture, contract or undertaking to which it is a party or which is binding on it or any of its assets.
Section 14.02. Covenants. The Purchase
Contract Agent and the Holders from time to time, acting through the Purchase Contract Agent as their attorney-in-fact (it being understood that the Purchase Contract Agent shall not be liable for any covenant made by or on behalf of a
Holder), hereby covenant to the Collateral Agent and the Corporation that for so long as the Collateral remains subject to the Pledge:
(a) neither the Purchase Contract Agent nor
such Holders will create or purport to create or allow to subsist any mortgage, charge, lien, pledge or any other security interest whatsoever over the Collateral or any part of it other than pursuant to this Agreement; and
(b) neither the Purchase Contract Agent nor
such Holders will sell or otherwise dispose (or attempt to dispose) of the Collateral or any part of it except for the beneficial interest therein, subject to the Pledge hereunder, transferred in connection with a Transfer of the Units.
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ARTICLE 15
THE COLLATERAL AGENT, THE CUSTODIAL AGENT AND
THE SECURITIES INTERMEDIARY
THE COLLATERAL AGENT, THE CUSTODIAL AGENT AND
THE SECURITIES INTERMEDIARY
Section 15.01. Appointment, Powers and
Immunities. The Corporation hereby appoints BNYM to act on its behalf as the Collateral Agent, the Custodial Agent and the Securities Intermediary hereunder, and the Corporation hereby (i) authorizes each of the Collateral Agent, the
Custodial Agent and the Securities Intermediary to take such actions on its behalf and to exercise such powers as are delegated to such the Collateral Agent, the Custodial Agent and the Securities Intermediary by the terms hereof and (ii)
authorizes and directs the Collateral Agent to take such actions as from time to time shall be required of the Collateral Agent under the terms of the Supplemental Indenture. The Collateral Agent, the Custodial Agent and the Securities
Intermediary each hereby agrees to act in its respective capacity as such upon the express conditions contained herein. The Corporation accepts the authorizations, appointments, acknowledgments and other actions taken by the Collateral
Agent, the Custodial Agent and the Securities Intermediary in accordance with this Agreement. The Collateral Agent, the Custodial Agent and the Securities Intermediary shall act solely as agent for the Corporation hereunder (and not as a
fiduciary), shall not assume any obligation or relationship of agency or trust for or with any of the Holders, except for the obligations owed by a pledgee of property to the owner of the property under this Agreement and applicable law, and
shall have such powers as are specifically vested in the Collateral Agent, the Custodial Agent and the Securities Intermediary, as the case may be, by the terms of this Agreement. Each Agent’s duties hereunder and under the other documents
executed in connection herewith are solely ministerial and administrative in nature. The Collateral Agent, the Custodial Agent and Securities Intermediary shall:
(a) have no duties or responsibilities except
those expressly set forth in this Agreement and no implied covenants or obligations shall be inferred from this Agreement against the Collateral Agent, the Custodial Agent or the Securities Intermediary, nor shall the Collateral Agent, the
Custodial Agent or the Securities Intermediary be bound by the provisions of any agreement by any party hereto (to which the Collateral Agent, the Custodial Agent or the Securities Intermediary, as the case may be, is not a party) beyond the
specific terms hereof;
(b) not be responsible for any recitals
contained in this Agreement, or in any certificate or other document referred to or provided for in, or received by it under, this Agreement or the Units, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement (other than as against the Collateral Agent, the Custodial Agent or the Securities Intermediary, as the case may be), the Units, any Collateral or any other document referred to or provided for herein or therein or for any
failure by the Corporation or any other Person (except the Collateral Agent, the Custodial Agent or Securities Intermediary, as the case may be) to perform any of its obligations hereunder or thereunder or for the perfection, priority or,
except as expressly required hereby, maintenance of any security interest created hereunder;
(c) not be required to initiate or conduct
any litigation or collection proceedings hereunder (except pursuant to directions furnished under Section 15.02, subject to Section 15.08);
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(d) not be responsible for any action taken or
omitted to be taken by it hereunder or under any other document or instrument referred to or provided for herein or in connection herewith or therewith, except for its own gross negligence or willful misconduct; and
(e) not be required to advise any party as to
selling or retaining, or taking or refraining from taking any action with respect to, any securities or other property deposited hereunder.
Subject to the foregoing, during the term of this Agreement, the Collateral Agent, the Custodial Agent and the Securities Intermediary shall take all reasonable action in connection with the
safekeeping and preservation of the Collateral hereunder as determined by industry standards.
No provision of this Agreement shall require the Collateral Agent, the Custodial Agent or the Securities Intermediary to expend or risk its own funds or otherwise incur any liability in the
performance of any of its duties hereunder. In no event shall the Collateral Agent, the Custodial Agent or the Securities Intermediary be liable for any amount in excess of the value of the Collateral.
Section 15.02. Instructions of the Corporation.
The Corporation shall have the right, by one or more written instruments executed and delivered to the Collateral Agent, to direct the time, method and place of conducting any proceeding for the realization of any right or remedy available to
the Collateral Agent, or of exercising any power conferred on the Collateral Agent, or to direct the taking or refraining from taking of any action authorized by this Agreement; provided, however, that (i) such direction shall
not conflict with the provisions of any law or of this Agreement or involve the Collateral Agent in personal liability and (ii) the Collateral Agent shall be indemnified and/or provided with security to its satisfaction as provided herein.
Nothing contained in this Section 15.02 shall impair the right of the Collateral Agent in its discretion to take any action or omit to take any action which it deems proper and which is not inconsistent with such direction. None of the
Collateral Agent, the Custodial Agent or the Securities Intermediary has any obligation or responsibility to file UCC financing or continuation statements.
Section 15.03. Reliance by Collateral Agent,
Custodial Agent and Securities Intermediary. Each of the Securities Intermediary, the Custodial Agent and the Collateral Agent (solely for purposes of this paragraph, the “Agents”) shall be entitled to rely conclusively upon any
certification, order, judgment, opinion, notice or other written communication (including, without limitation, any thereof by e-mail or similar electronic means, telecopy or facsimile) believed by it in good faith to be genuine and to have
been signed or sent by or on behalf of the proper Person or Persons (without being required to determine the correctness of any fact stated therein) and consult with and conclusively rely upon advice, opinions and statements of legal counsel
and other experts selected by the Collateral Agent, the Custodial Agent or the Securities Intermediary, as the case may be. As to any discretionary action or matters not expressly provided for by this Agreement, each Agent shall in all cases
be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions given by the Corporation or the Holders, as the case may be, or by another Agent, as the case may, be in accordance with the terms of this
Agreement; provided, however, it is understood that in all cases the Agent shall be fully justified in failing or refusing to take any such action under this Agreement if it shall not have received such direction from the
Corporation or the Holders (acting in accordance with this Agreement) or from another Agent (acting in accordance with this Agreement), as such Agent deems appropriate. This provision is intended solely for the benefit of the Agents and
their successors and permitted assigns and is not intended to and will not entitle the other parties hereto to any defense, claim or counterclaim, or confer any rights or benefits on any party hereto.
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Section 15.04. Certain Rights.
(a) Whenever in the administration of the provisions of this Agreement the Collateral Agent, the Custodial Agent or the Securities Intermediary shall deem it necessary or desirable that a matter be proved or established prior to taking, or
omitting to take, or suffering any action hereunder, or suffering to exist any state of events, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of bad faith on the part of the
Collateral Agent, the Custodial Agent or the Securities Intermediary, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Collateral Agent, the Custodial Agent or the Securities Intermediary and
such certificate, in the absence of bad faith on the part of the Collateral Agent, the Custodial Agent or the Securities Intermediary, shall be full warrant to the Collateral Agent, the Custodial Agent or the Securities Intermediary for any
action taken, suffered or omitted by it under the provisions of this Agreement in reliance thereon.
(b) The Collateral Agent, the Custodial Agent
or the Securities Intermediary shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or
other paper or document that it reasonably believes to be genuine.
(c) The authorizations, rights, privileges,
protections and benefits given to each of the Collateral Agent, the Custodial Agent or the Securities Intermediary are extended to, and shall be enforceable by, each such Collateral Agent, the Custodial Agent or the Securities Intermediary,
under any document to which it is a party. In the event any claim of inconsistency between this Agreement and the terms of any other document arises with respect to the duties, liabilities and rights of the Collateral Agent, the Custodial
Agent or the Securities Intermediary, the terms of this Agreement shall control.
Section 15.05. Merger, Conversion,
Amalgamation, Arrangement, Consolidation or Succession to Business. Any Person or national association into which the Collateral Agent, the Custodial Agent or the Securities Intermediary may be merged, amalgamated or converted or with
which it may be consolidated or arranged, or any Person or national association resulting from any merger, conversion, amalgamation, arrangement or consolidation to which the Collateral Agent, the Custodial Agent or the Securities
Intermediary shall be a party, or any Person or national association succeeding to all or substantially all of the corporate trust business of the Collateral Agent (including the administration of this Agreement), the Custodial Agent or the
Securities Intermediary shall be the successor of the Collateral Agent, the Custodial Agent or the Securities Intermediary hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of
the parties hereto except where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.
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Section 15.06. Rights in Other Capacities.
The Collateral Agent, the Custodial Agent and the Securities Intermediary and their affiliates may (without having to account therefor to the Corporation) accept deposits from, lend money to, make their investments in and generally engage in
any kind of banking, trust or other business with the Purchase Contract Agent, any other Person interested herein and any Holder (and any of their respective subsidiaries or affiliates) as if it were not acting as the Collateral Agent, the
Custodial Agent or the Securities Intermediary, as the case may be, and the Collateral Agent, the Custodial Agent, the Securities Intermediary and their affiliates may accept fees and other consideration from the Purchase Contract Agent and
any Holder without having to account for the same to the Corporation; provided that each of the Collateral Agent, the Custodial Agent and the Securities Intermediary covenants and agrees with the Corporation that it shall not accept,
receive or permit there to be created in favor of itself and shall take no affirmative action to permit there to be created in favor of any other Person, any security interest, lien or other encumbrance of any kind in or upon the Collateral
other than the lien created by the Pledge.
Section 15.07. Non-reliance on the Collateral
Agent, Custodial Agent and Securities Intermediary. None of the Collateral Agent, the Custodial Agent and the Securities Intermediary shall be required to keep itself informed as to the performance or observance by the Purchase
Contract Agent or any Holder of this Agreement, the Units or any other document referred to or provided for herein or therein or to inspect the properties or books of the Purchase Contract Agent or any Holder. None of the Collateral Agent,
the Custodial Agent or the Securities Intermediary shall have any duty or responsibility to provide the Corporation with any credit or other information concerning the affairs, financial condition or business of the Purchase Contract Agent or
any Holder (or any of their respective affiliates) that may come into the possession of the Collateral Agent, the Custodial Agent or the Securities Intermediary or any of their respective affiliates.
Section 15.08. Compensation and Indemnity.
The Corporation agrees to:
(a) pay the Collateral Agent, the Custodial
Agent and the Securities Intermediary from time to time such compensation as shall be agreed in writing between the Corporation and the Collateral Agent, the Custodial Agent or the Securities Intermediary, as the case may be, for all services
rendered by them hereunder;
(b) indemnify and hold harmless the Collateral
Agent, the Custodial Agent, the Securities Intermediary and each of their respective officers, partners, members, directors, trustees, advisors, employees, agents, sub-agents and affiliates (collectively, the “Pledge Indemnitees”),
from and against any liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses and disbursements of any kind or nature whatsoever (including reasonable fees and out of pocket expenses of outside
counsel) (collectively, “Losses” and individually, a “Loss”) that may be imposed on, incurred by, or asserted against, the Pledge Indemnitees or any of them for following any instructions or other directions upon which any of
the Collateral Agent, the Custodial Agent or the Securities Intermediary is entitled to rely pursuant to the terms of this Agreement, provided that the Collateral Agent, the Custodial Agent or the Securities Intermediary has not acted with
gross negligence or engaged in willful misconduct (as finally adjudicated by a court of competent jurisdiction) with respect to the specific Loss against which indemnification is sought; and
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(c) in addition to and not in limitation of
paragraph (b) of this Section 15.08, indemnify and hold the Pledge Indemnitees and each of them harmless from and against any and all Losses that may be imposed on, incurred by or asserted against, the Pledge Indemnitees or any of them in
connection with or arising out of the Collateral Agent’s, the Custodial Agent’s or the Securities Intermediary’s acceptance or performance of its powers and duties under this Agreement, provided the Collateral Agent, the Custodial Agent or
the Securities Intermediary has not acted with gross negligence or engaged in willful misconduct (as finally adjudicated by a court of competent jurisdiction) with respect to the specific Loss against which indemnification is sought,
including the Pledge Indemnitee’s reasonable out-of-pocket costs and expenses of defending themselves against any claim or liability (whether asserted by the Corporation, any holder of Units, or otherwise) in connection with the exercise or
performance of any of the Collateral Agent’s, the Custodial Agent’s or Securities Intermediary’s powers or duties hereunder or thereunder or of enforcing the provisions of this Section 15.08 and Section 15.14.
The provisions of this Section 15.08 and Section 15.14 shall survive the resignation or removal of the Collateral Agent, the Custodial Agent or the Securities Intermediary and the termination
of this Agreement.
Section 15.09. Failure to Act. In the
event that, in the good faith, reasonable belief of the Collateral Agent, the Custodial Agent or the Securities Intermediary, an ambiguity in the provisions of this Agreement arises or any actual dispute between or conflicting claims by or
among the parties hereto or any other Person with respect to any funds or property deposited hereunder has been asserted in writing, then at its sole option, each of the Collateral Agent, the Custodial Agent and the Securities Intermediary
shall be entitled, after prompt notice to the Corporation and the Purchase Contract Agent, to refuse to comply with any and all claims, demands or instructions with respect to such property or funds so long as such dispute or conflict shall
continue, and the Collateral Agent, the Custodial Agent and the Securities Intermediary, as the case may be, shall not be or become liable in any way to any of the parties hereto for its failure or refusal to comply with such conflicting
claims, demands or instructions. In such event, the Collateral Agent, the Custodial Agent and the Securities Intermediary shall be entitled to refuse to act until either:
(a) such conflicting or adverse claims or
demands shall have been finally determined by a court of competent jurisdiction or settled by agreement between the conflicting parties as evidenced in a writing reasonably satisfactory to the Collateral Agent, the Custodial Agent or the
Securities Intermediary; or
(b) the Collateral Agent, the Custodial Agent
or the Securities Intermediary shall have received security or an indemnity and/or security satisfactory to it sufficient to hold it harmless from and against any and all loss, liability or reasonable out-of-pocket expense which it may incur
by reason of its acting.
The Collateral Agent, the Custodial Agent and the Securities Intermediary may in addition elect to commence an interpleader action or seek other judicial relief or orders as the Collateral
Agent, the Custodial Agent or the Securities Intermediary may deem necessary. Notwithstanding anything contained herein to the contrary, none of the Collateral Agent, the Custodial Agent or the Securities Intermediary shall be required to take
any action that is in its opinion contrary to law or to the terms of this Agreement, or which would in its opinion subject it or any of its officers, employees or directors to personal liability.
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Section 15.10. Resignation of Collateral
Agent, the Custodial Agent and the Securities Intermediary. Subject to the appointment and acceptance of a successor Collateral Agent, Custodial Agent or Securities Intermediary as provided below:
(i) the Collateral Agent, the Custodial Agent or the Securities Intermediary may resign at any time
by giving notice thereof to the Corporation and the Purchase Contract Agent as attorney-in-fact for the Holders;
(ii) the Collateral Agent, the Custodial Agent or the Securities Intermediary may be removed at any
time by the Corporation; and
(iii) if the Collateral Agent, the Custodial Agent or the Securities Intermediary fails to perform any
of its material obligations hereunder in any material respect for a period of not less than 20 days after receiving written notice of such failure by the Purchase Contract Agent and such failure shall be continuing, the Collateral Agent,
the Custodial Agent and the Securities Intermediary may be removed by the Purchase Contract Agent, acting at the direction of Holders of a majority of the Units.
The Purchase Contract Agent shall promptly notify the Corporation upon the transmission of notice as contemplated by clause (iii) of Section 15.10 and any removal of the Collateral Agent, the
Custodial Agent or the Securities Intermediary pursuant to clause (iii) of this Section 15.10. Upon any such resignation or removal under this Section 15.10, the Corporation shall have the right to appoint a successor Collateral Agent,
Custodial Agent or Securities Intermediary, as the case may be, which shall not be an Affiliate of the Purchase Contract Agent. If no successor Collateral Agent, Custodial Agent or Securities Intermediary shall have been so appointed and shall
have accepted such appointment within 45 days after the retiring Collateral Agent’s, Custodial Agent’s or Securities Intermediary’s giving of notice of resignation or the Corporation’s or the Purchase Contract Agent’s giving notice of such
removal, then the retiring or removed Collateral Agent, Custodial Agent or Securities Intermediary may petition any court of competent jurisdiction, at the expense of the Corporation, for the appointment of a successor Collateral Agent,
Custodial Agent or Securities Intermediary. The Collateral Agent, the Custodial Agent and the Securities Intermediary shall each be a bank or a national banking association (which has an office or agency in the continental United States of
America) with a combined capital and surplus of at least $50,000,000. Upon the acceptance of any appointment as Collateral Agent, Custodial Agent or Securities Intermediary hereunder by a successor Collateral Agent, Custodial Agent or
Securities Intermediary, as the case may be, such successor Collateral Agent, Custodial Agent or Securities Intermediary, as the case may be, shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the
retiring Collateral Agent, Custodial Agent or Securities Intermediary, as the case may be, and the retiring Collateral Agent, Custodial Agent or Securities Intermediary, as the case may be, shall take all appropriate action, subject to payment
of any amounts then due and payable to it hereunder, to transfer any money and property held by it hereunder (including the Collateral) to such successor. The retiring Collateral Agent, Custodial Agent or Securities Intermediary shall, upon
such succession, be discharged from its duties and obligations as Collateral Agent, Custodial Agent or Securities Intermediary hereunder. After any retiring Collateral Agent’s, Custodial Agent’s or Securities Intermediary’s resignation
hereunder as Collateral Agent, Custodial Agent or Securities Intermediary, the provisions of this Article 15 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as the
Collateral Agent, the Custodial Agent or the Securities Intermediary. Any resignation or removal of the Collateral Agent, the Custodial Agent or the Securities Intermediary hereunder, at a time when such Person is also acting as the Collateral
Agent, the Custodial Agent or the Securities Intermediary, as the case may be, shall be deemed for all purposes of this Agreement as the simultaneous resignation or removal of the Collateral Agent, the Securities Intermediary or the Custodial
Agent, as the case may be.
119
Section 15.11. Right to Appoint Agent or
Advisor. The Collateral Agent shall have the right to appoint agents or advisors in connection with any of its duties hereunder, and the Collateral Agent shall not be liable for any action taken or omitted by, or in reliance upon the
advice of, such agents or advisors selected in good faith and with due care. The appointment of agents pursuant to this Section 15.11 shall be subject to prior written consent of the Corporation, which consent shall not be unreasonably
withheld.
Section 15.12. Survival. The provisions
of this Article 15 shall survive termination of this Agreement and the resignation or removal of the Collateral Agent, the Custodial Agent or the Securities Intermediary.
Section 15.13. Exculpation. Anything
contained in this Agreement to the contrary notwithstanding, in no event shall the Collateral Agent, the Custodial Agent or the Securities Intermediary or their officers, directors, employees or agents be liable under this Agreement for
indirect, special, punitive, or consequential loss or damage of any kind whatsoever, including, but not limited to, lost profits, whether or not the likelihood of such loss or damage was known to the Collateral Agent, the Custodial Agent or
the Securities Intermediary, or any of them and regardless of the form of action.
Section 15.14. Expenses, Etc. The
Corporation agrees to reimburse the Collateral Agent, the Custodial Agent and the Securities Intermediary for:
(a) all reasonable costs, fees and
out-of-pocket expenses of the Collateral Agent, the Custodial Agent and the Securities Intermediary (including, without limitation, the reasonable fees and expenses of counsel to the Collateral Agent, the Custodial Agent and the Securities
Intermediary), in connection with (i) the negotiation, preparation, execution and delivery or performance of this Agreement (excluding taxes that are based on or measured by income in whole or in part (including franchise taxes)) and (ii) any
modification, supplement or waiver of any of the terms of this Agreement;
(b) all reasonable costs, fees and
out-of-pocket expenses of the Collateral Agent, the Custodial Agent and the Securities Intermediary (including, without limitation, reasonable fees and expenses of counsel) in connection with (i) any enforcement or proceedings resulting or
incurred in connection with causing any Holder to satisfy its obligations under the Purchase Contracts forming a part of the Units and (ii) the enforcement of this Section 15.14;
(c) all transfer, stamp, documentary or other
similar taxes, assessments or charges levied by any governmental or revenue authority in respect of this Agreement and all costs, expenses, taxes, assessments and other charges incurred in connection with any filing, registration, recording
or perfection of any security interest contemplated hereby;
120
(d) all reasonable fees and out-of-pocket
expenses of any agent or advisor appointed by the Collateral Agent and consented to by the Corporation under Section 15.11; and
(e) any other out-of-pocket costs and expenses
(excluding taxes) reasonably incurred by the Collateral Agent, the Custodial Agent and the Securities Intermediary in connection with the performance of their duties hereunder.
Section 15.15. Force Majeure. In no event
shall any of the Collateral Agent, Custodial Agent and Securities Intermediary be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused by circumstances beyond its
control, including, without limitation, acts of God; earthquake; fires; floods; wars; civil or military disturbances; terrorist acts; sabotage; epidemics; riots; interruptions, loss or malfunctions of utilities; acts of civil or military
authority or governmental actions; or other unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility, in each case, which delay, restrict or prohibit the providing of services contemplated by this
Agreement; it being understood that the Collateral Agent, Custodial Agent and Securities Intermediary shall use commercially reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon
as practicable under such circumstances.
ARTICLE 16
MISCELLANEOUS
MISCELLANEOUS
Section 16.01. Security Interest Absolute.
All rights of the Collateral Agent and security interests hereunder, and all obligations of the Holders from time to time hereunder pursuant to the Pledge, shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of
any provision of the Purchase Contracts or the Units or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of
payment of, or any other term of, or any increase in the amount of, all or any of the Obligations of Holders of the Units under the related Purchase Contracts, or any other amendment or waiver of any term of, or any consent to any departure
from any requirement of, the Purchase Contract Agreement or any Purchase Contract or any other agreement or instrument relating thereto; or
(c) any other circumstance which might
otherwise constitute a defense available to, or discharge of, a borrower, a guarantor or a pledgor.
Section 16.02. Notice of Termination Event.
Upon the occurrence of a Termination Event, the Corporation shall deliver written notice to the Purchase Contract Agent, the Collateral Agent and the Securities Intermediary within a reasonable amount of time and to the extent permitted by
law.
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Section 16.03. PATRIOT ACT. The parties
hereto acknowledge that in order to help the United States government fight the funding of terrorism and money laundering activities, pursuant to Federal regulations that became effective on October 1, 2003 (Section 326 of the USA PATRIOT
Act) all financial institutions are required to obtain, verify, record and update information that identifies each person establishing a relationship or opening an account. The parties to this Agreement agree that they will provide to the
Agent such information as it may request, from time to time, in order for the Agent to satisfy the requirements of the USA PATRIOT Act, including but not limited to the name, address, tax identification number and other information that will
allow it to identify the individual or entity who is establishing the relationship or opening the account and may also ask for formation documents such as articles of incorporation or other identifying documents to be provided.
The duties and obligations of the Agent shall be determined solely by the express terms of this Agreement, and no duties, obligations or responsibilities shall be implied into this Agreement
against the Agent.
Section 16.04. Instructions to BNYM. Upon
BNYM’s receipt of any initial direction, notice or instruction hereunder, any further instruction, notice or direction that BNYM is required to make to BNYM in its other capacities under the terms of this Agreement shall be deemed by the
Corporation as being made by BNYM in such other capacities without any further action by BNYM in such other capacities.
[SIGNATURES ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
Algonquin Power & Utilities Corp.
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The Bank of New York Mellon Trust Company, N.A.,
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By:
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/s/ Arun Banskota
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as Purchase Contract Agent, Collateral Agent, Custodial Agent, Securities Intermediary and as attorney-in-fact of the Holders from time to time of the Units | ||
Name:
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Arun Banskota
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Title:
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President & Chief Executive Officer
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By:
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/s/ Arthur Kacprzak
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By:
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/s/ Lawrence M. Kusch
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Name:
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Arthur Kacprzak
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Name:
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Lawrence M. Kusch
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Title:
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Chief Financial Officer
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Title:
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Vice President
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Address for Notices:
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Address for Notices:
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Algonquin Power & Utilities Corp.
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The Bank of New York Mellon Trust Company, N.A.
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354 Davis Road
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4655 Salisbury Road, Suite 300
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Oakville, Ontario L6J 2X1
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Jacksonville, Florida 32256
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Attn: Ms. Jennifer Tindale
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Attention: Corporate Trust Administration
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with a copy (which shall not constitute notice) to: [email protected]
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[PURCHASE CONTRACT AND PLEDGE AGREEMENT]
(FORM OF FACE OF CORPORATE UNITS CERTIFICATE)
[For inclusion in Global Certificate only — THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE PURCHASE CONTRACT AND PLEDGE AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED
IN THE NAME OF CEDE & CO., AS THE NOMINEE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE “DEPOSITORY”), THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY. THIS CERTIFICATE IS EXCHANGEABLE FOR CERTIFICATES REGISTERED
IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AND PLEDGE AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE
BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
A-1
No.
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|
CUSIP No. 015857 873
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Number of Corporate Units: | ISIN No. US0158578734 |
ALGONQUIN POWER & UTILITIES CORP.
Corporate Units
Corporate Units
This Corporate Units Certificate certifies that Cede & Co. is the registered Holder of the number of Corporate Units set forth above [For inclusion in Global Certificates only — or such
other number of Corporate Units reflected in the Schedule of Increases or Decreases in Global Certificate attached hereto, which number, taken together with the number of all other Outstanding Corporate Units and the number of all Outstanding
Treasury Units, shall not exceed 20,000,000 Units (as increased by the number of Units, if any, with respect to which the underwriters in the Units offering exercise their over-allotment option). Each Corporate Unit consists of (i) the rights
and obligations of the Holder under one Purchase Contract with the Corporation pursuant to which (A) the Holder will agree to purchase from the Corporation, and the Corporation will agree to sell to the Holder, on the Purchase Contract
Settlement Date (unless a Termination Event, an Early Settlement or a Fundamental Change Early Settlement has occurred), for the Stated Amount in cash, a number of Common Shares equal to the Settlement Rate, subject to anti-dilution adjustments
and (B) the Corporation will pay the Holder quarterly Contract Adjustment Payments, subject to the Corporation’s right to defer such Contract Adjustment Payments and (ii) either (A) an Applicable Ownership Interest in Notes, subject to the
pledge of the Applicable Ownership Interest in Notes or (B) upon the occurrence of a Successful Optional Remarketing during the Optional Remarketing Period, the Applicable Ownership Interest in the Treasury Portfolio, subject to the pledge of
the Applicable Ownership Interest in the Treasury Portfolio (as specified in clause (i) of the definition of Applicable Ownership Interest in the Treasury Portfolio) by such Holder pursuant to the Purchase Contract and Pledge Agreement.
All capitalized terms used herein that are defined in the Purchase Contract and Pledge Agreement (as defined on the reverse hereof) have the meaning set forth therein.
In the event of any inconsistency between the provisions of this Corporate Units Certificate and the provisions of the Purchase Contract and Pledge Agreement, the provisions of the Purchase
Contract and Pledge Agreement shall govern and control.
Pursuant to the Purchase Contract and Pledge Agreement, the Applicable Ownership Interest in Notes or the Applicable Ownership Interest in the Treasury Portfolio (as specified in clause (i) of
the definition of Applicable Ownership Interest in the Treasury Portfolio), as the case may be, constituting part of each Corporate Unit evidenced hereby have been pledged to the Collateral Agent, for the benefit of the Corporation, to secure
the Obligations of the Holder under the Purchase Contract comprising part of such Corporate Unit.
All payments of interest on the Pledged Applicable Ownership Interests in Notes or distributions with respect to the Applicable Ownership Interests in the Treasury Portfolio (as specified in
clause (ii) of the definition of Applicable Ownership Interests in the Treasury Portfolio), as the case may be, constituting part of the Corporate Units shall be paid on the dates and in the manner set forth in the Purchase Contract and Pledge
Agreement. Interest on the Notes underlying the Applicable Ownership Interests in Notes or distributions on the Applicable Ownership Interests in the Treasury Portfolio (as specified in clause (ii) of the definition of Applicable Ownership
Interests in the Treasury Portfolio), as the case may be, forming part of the Corporate Units evidenced hereby, which are payable on each Payment Date (or, in the case of distributions on the Applicable Ownership Interests in the Treasury
Portfolio (as specified in clause (ii) of the definition of Applicable Ownership Interests in the Treasury Portfolio), which is payable on the maturity date thereof), shall, subject to receipt thereof by the Purchase Contract Agent, be paid to
the Person in whose name this Corporate Units Certificate (or a Predecessor Corporate Units Certificate) is registered at the close of business on the Record Date for the relevant Payment Date.
A-2
Each Purchase Contract evidenced hereby obligates the Holder of this Corporate Units Certificate to purchase, and the Corporation to sell, on the Purchase Contract Settlement Date, at a
Purchase Price equal to the Stated Amount, a number of Common Shares, equal to the Settlement Rate, unless on or prior to the Purchase Contract Settlement Date there shall have occurred a Termination Event, an Early Settlement or a Fundamental
Change Early Settlement with respect to such Purchase Contract, all as provided in the Purchase Contract and Pledge Agreement. The Purchase Price for the Common Shares purchased pursuant to each Purchase Contract evidenced hereby, if not paid
earlier, shall be paid on the Purchase Contract Settlement Date by application of payment received in the Final Remarketing of the Notes underlying the Pledged Applicable Ownership Interests in Notes equal to the principal amount thereof or the
proceeds of the Pledged Applicable Ownership Interests in the Treasury Portfolio, as the case may be, pledged to secure the Holder’s Obligations under such Purchase Contract.
Interest on the Applicable Ownership Interests in Notes and distributions on the Applicable Ownership Interests in the Treasury Portfolio (as specified in clause (ii) of the definition of
Applicable Ownership Interests in the Treasury Portfolio), to the extent payable to the Holder pursuant to the Purchase Contract and Pledge Agreement, if the book entry system for the Units has been terminated, will be payable by check
delivered to the address of the Holder as it appears on the Security Register or, if the Holder so requests and designates an account in writing to the Purchase Contract Agent at least five Business Days prior to the relevant Payment Date, by
wire transfer to such account. All payments with respect to Global Certificates will be made by wire transfer of immediately available funds to the Depository.
Each Purchase Contract evidenced hereby obligates each Holder and Beneficial Owner to agree, for U.S. federal, state and local income tax purposes (unless otherwise required by any taxing
authority or as required by a change in law occurring after the date of the original issuance of the applicable Corporate Units) (i) to treat each Beneficial Owner of a Corporate Unit as the owner, separately, of each of the applicable Purchase
Contract and the applicable interests in the Collateral, including the Notes underlying the Applicable Ownership Interests in Notes or the Applicable Ownership Interests in the Treasury Portfolio, as the case may be, (ii) to treat the Notes as
indebtedness and (iii) with respect to Holders (or Beneficial Owners) who purchase Corporate Units upon issuance, to allocate, as of the date hereof, 100% of the purchase price for a Corporate Unit to the Applicable Ownership Interests in Notes
and 0% to each Purchase Contract, which will establish each Beneficial Owner’s initial tax basis in each Purchase Contract as $0 and each Beneficial Owner’s initial tax basis in each Applicable Ownership Interest in Notes as $50.
A-3
By purchase of a Corporate Unit upon issuance the Holder or Beneficial Owner agrees to allocate 100% of the issue price of a Corporate Unit to the Note,
and to allocate 0% to the Purchase Contract, and to file all Canadian income tax returns and information returns in a manner consistent with the foregoing.
The Corporation shall pay, on each Contract Adjustment Payment Date, in respect of each Purchase Contract forming part of a Corporate Unit evidenced hereby, an amount (the “Contract
Adjustment Payments”) equal to 6.57% per year of the Stated Amount, computed on the basis of a 360-day year consisting of twelve 30-day months. Such Contract Adjustment Payments shall be payable to the Person in whose name this Corporate
Units Certificate is registered at the close of business on the Record Date for such Contract Adjustment Payment Date. The Corporation may, at its option, defer such Contract Adjustment Payments as described in the Purchase Contract and Pledge
Agreement. The Contract Adjustment Payments are unsecured and will rank subordinate and junior in right of payment to all of the Corporation’s existing and future Priority Indebtedness.
If the book-entry system for the Corporate Units has been terminated, the Contract Adjustment Payments will be payable by check delivered to the address of the Person entitled thereto at such
Person’s address as it appears on the Security Register or, if such Person so requests and designates an account in writing to the Purchase Contract Agent at least five Business Days prior to the relevant Payment Date, by wire transfer to such
account.
Reference is hereby made to the further provisions set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Purchase Contract Agent by manual, electronic or facsimile signature, this Corporate Units Certificate shall not be
entitled to any benefit under the Purchase Contract and Pledge Agreement or be valid or obligatory for any purpose.
A-4
IN WITNESS WHEREOF, the Corporation and the Holder specified above have caused this instrument to be duly executed.
ALGONQUIN POWER & UTILITIES CORP.
|
||
By:
|
||
Name:
|
||
Title:
|
||
By:
|
||
Name:
|
||
Title:
|
||
HOLDER SPECIFIED ABOVE (as to obligations of such Holder under the Purchase Contracts)
|
||
By:
|
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., not individually but solely as attorney-in-fact of such Holder
|
|
By:
|
||
Authorized Signatory
|
CERTIFICATE OF AUTHENTICATION OF
PURCHASE CONTRACT AGENT
PURCHASE CONTRACT AGENT
This is one of the Corporate Units Certificates referred to in the within mentioned Purchase Contract and Pledge Agreement.
By:
|
The Bank of New York Mellon Trust Company, N.A., as Purchase Contract Agent
|
|
By:
|
||
Authorized Signatory
|
A-5
(REVERSE OF CORPORATE UNITS CERTIFICATE)
Each Purchase Contract evidenced hereby is governed by the Purchase Contract and Pledge Agreement, dated as of June 23, 2021 (as may be supplemented from time to time, the “Purchase Contract
and Pledge Agreement”), among the Corporation and The Bank of New York Mellon Trust Company, N.A., as Purchase Contract Agent and attorney-in-fact for the Holders of Corporate Units and Treasury Units from time to time, as Collateral
Agent, as Custodial Agent, and as Securities Intermediary, to which Purchase Contract and Pledge Agreement and supplemental agreements thereto reference is hereby made for a description of the respective rights, limitations of rights,
obligations, duties and immunities thereunder of the Purchase Contract Agent, the Corporation, and the Holders and of the terms upon which the Corporate Units Certificates are, and are to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this Corporate Units Certificate to purchase, and the Corporation to sell, on the Purchase Contract Settlement Date at a price
equal to the Stated Amount, a number of Common Shares equal to the Settlement Rate, unless an Early Settlement, a Fundamental Change Early Settlement or a Termination Event with respect to the Unit of which such Purchase Contract is a part
shall have occurred. The Settlement Rate is subject to adjustment as described in the Purchase Contract and Pledge Agreement.
No fractional Common Shares will be issued upon settlement of any Purchase Contracts, as provided in Section 5.09 of the Purchase Contract and Pledge Agreement.
Each Purchase Contract evidenced hereby that is settled through Early Settlement or Fundamental Change Early Settlement shall obligate the Holder of the related Corporate Units to purchase at
the Purchase Price, and the Corporation to sell, a number of Common Shares equal to the Minimum Settlement Rate, in the case of an Early Settlement, or the Settlement Rate plus the applicable number of Make-Whole Shares (determined, in each
case, as set forth in the Purchase Contract and Pledge Agreement), in the case of a Fundamental Change Early Settlement.
In accordance with the terms of the Purchase Contract and Pledge Agreement, unless a Termination Event shall have occurred, the Holder of this Corporate Units Certificate shall pay the Purchase
Price for the Common Shares purchased pursuant to each Purchase Contract evidenced hereby by effecting a Cash Settlement, an Early Settlement, a Fundamental Change Early Settlement, from the proceeds of the Applicable Ownership Interests in the
Treasury Portfolio (as specified in clause (i) of the definition of Applicable Ownership Interest in the Treasury Portfolio), from the proceeds of a Final Remarketing of the Notes underlying the Pledged Applicable Ownership Interests in Notes
or from the exercise of a Holder’s Put Right. Unless a Termination Event has occurred, a Holder of Corporate Units who (1) does not make an effective Cash Settlement in the manner and by the time provided in Section 5.02(b)(ix) or 5.03(a) of
the Purchase Contract and Pledge Agreement, (2) does not, in the manner and at the times provided in the Purchase Contract and Pledge Agreement, make an effective Early Settlement and (3) does not, in the manner and at the times provided in the
Purchase Contract and Pledge Agreement, make an effective Fundamental Change Early Settlement, shall pay the Purchase Price, as described in the Purchase Contract and Pledge Agreement, for the Common Shares to be delivered under the related
Purchase Contract (1) in the case of a Successful Final Remarketing, from the proceeds of the sale of the Notes underlying the Pledged Applicable Ownership Interests in Notes held by the Collateral Agent in the Final Remarketing, (2) in the
case of a Successful Optional Remarketing, from the proceeds at maturity of the Applicable Ownership Interests in the Treasury Portfolio (as specified in clause (i) of the definition of Applicable Ownership Interest in the Treasury Portfolio)
or (3) in the case of a Failed Remarketing, from the proceeds of the exercise of a Holder’s Put Right, as described below.
A-6
As provided in the Purchase Contract and Pledge Agreement, upon the occurrence of a Failed Final Remarketing, as of the Purchase Contract Settlement Date, each Holder of any Pledged Applicable
Ownership Interests in Notes, unless such Holder has elected Cash Settlement and delivered cash in accordance with Section 5.02(b)(ix) of the Purchase Contract and Pledge Agreement, shall be deemed to have exercised such Holder’s Put Right with
respect to the Notes underlying such Applicable Ownership Interests in Notes and to have elected to apply the Proceeds of the Put Price therefor against such Holder’s obligation to pay the aggregate Purchase Price for the Common Shares to be
issued under the related Purchase Contracts in full satisfaction of such Holders’ Obligations under such Purchase Contracts.
The Corporation shall not be obligated to issue any Common Shares in respect of a Purchase Contract or deliver any certificates therefor to the Holder unless it shall have received payment of
the aggregate Purchase Price, as described in the Purchase Contract and Pledge Agreement, for the Common Shares to be purchased thereunder in the manner set forth in the Purchase Contract and Pledge Agreement.
The Purchase Contracts and all obligations and rights of the Corporation and the Holders thereunder, including, without limitation, the rights of the Holders to receive and the obligation of
the Corporation to pay any Contract Adjustment Payments, shall immediately and automatically terminate, without the necessity of any notice or action by any Holder, the Purchase Contract Agent or the Corporation, if, on or prior to the Purchase
Contract Settlement Date, a Termination Event shall have occurred. Upon the occurrence of a Termination Event, the Corporation shall give written notice to the Purchase Contract Agent, the Collateral Agent, and to the Holders, at their
addresses as they appear in the Security Register. Upon and after the occurrence of a Termination Event, the Collateral Agent shall release the Notes underlying the Pledged Applicable Ownership Interests in Notes or the Applicable Ownership
Interests in the Treasury Portfolio forming a part of each Corporate Unit, and all other Collateral, from the Pledge. A Corporate Unit shall thereafter represent the right to receive the Notes underlying the Applicable Ownership Interest in
the Notes or the Applicable Ownership Interests in the Treasury Portfolio forming a part of such Corporate Units in accordance with the terms of the Purchase Contract and Pledge Agreement.
Under the terms of the Purchase Contract and Pledge Agreement, the Purchase Contract Agent shall exercise the voting and any other consensual rights pertaining to the Notes underlying the
Pledged Applicable Ownership Interests in Notes to the extent instructed in writing by the Holders. Upon receipt of notice of any meeting at which holders of Notes are entitled to vote or upon any solicitation of consents, waivers or proxies
of holders of Notes, the Purchase Contract Agent shall, as soon as practicable thereafter, first class, postage prepaid mail or electronic delivery, in each case, to the Corporate Units Holders the notice required by the Purchase Contract and
Pledge Agreement.
A-7
Subject to the provisions of the Purchase Contract and Pledge Agreement, upon the occurrence of a Successful Optional Remarketing and receipt in the Collateral Account of the proceeds thereof,
the Collateral Agent shall instruct the Securities Intermediary to apply an amount equal to the Treasury Portfolio Purchase Price to purchase the Treasury Portfolio.
Following the occurrence of a Successful Optional Remarketing, the Holders of Corporate Units and the Collateral Agent shall have such security interests, rights and obligations with respect to
the Applicable Ownership Interests in the Treasury Portfolio (as specified in clause (i) of the definition of such term) as the Holder of Corporate Units and the Collateral Agent had in respect of Applicable Ownership Interests in Notes and the
underlying Notes, subject to the Pledge thereof as provided in the Purchase Contract and Pledge Agreement and any reference herein to the Notes or Applicable Ownership Interests in Notes shall be deemed to be a reference to the Treasury
Portfolio or the Applicable Ownership Interests in the Treasury Portfolio, as the case may be.
The Corporate Units Certificates are issuable only in registered form and only in denominations of a single Corporate Unit and any integral multiple thereof. The transfer of any Corporate
Units Certificate will be registered and Corporate Units Certificates may be exchanged as provided in the Purchase Contract and Pledge Agreement. A Holder who elects to substitute Treasury Securities with an aggregate principal amount at
maturity equal to the aggregate principal amount of Notes underlying the Applicable Ownership Interests in Notes, thereby creating Treasury Units, shall be responsible for any fees or expenses payable in connection therewith. Except as
provided in the Purchase Contract and Pledge Agreement, such Corporate Unit shall not be separable into its constituent parts, and the rights and obligations of the Holder of such Corporate Unit in respect of the Applicable Ownership Interest
in Notes, or Applicable Ownership Interest in the Treasury Portfolio, as the case may be, and the Purchase Contract constituting such Corporate Units may be acquired, and may be transferred and exchanged, only as a Corporate Unit.
Subject to, and in compliance with, the terms and conditions set forth in the Purchase Contract and Pledge Agreement, the Holder of Corporate Units may effect a Collateral Substitution. From
and after such Collateral Substitution, each Unit for which Pledged Treasury Securities secure the Holder’s obligation under the Purchase Contract shall be referred to as a “Treasury Unit.” Subject to certain exceptions in the Purchase
Contract and Pledge Agreement, a Holder may make such Collateral Substitution only in integral multiples of 20 Corporate Units for 20 Treasury Units.
Subject to and upon compliance with the provisions of, and certain exceptions described in, the Purchase Contract and Pledge Agreement, at the option of the Holder thereof, Purchase Contracts
underlying Units may be settled early by effecting an Early Settlement as provided in the Purchase Contract and Pledge Agreement in integral multiples of 20 Corporate Units, or if Applicable Ownership Interests in the Treasury Portfolio have
replaced the Applicable Ownership Interests in Notes as a component of the Corporate Units, in integral multiples of 400,000 Corporate Units.
A-8
Upon Early Settlement of Purchase Contracts by a Holder of the related Units, the Notes underlying the Pledged Applicable Ownership Interests in Notes or the Applicable Ownership Interests in
the Treasury Portfolio underlying such Units shall be released from the Pledge as provided in the Purchase Contract and Pledge Agreement and the Holder shall be entitled to receive a number of Common Shares equal to the Minimum Settlement Rate
for each Purchase Contract as to which Early Settlement is effected.
Upon the occurrence of a Fundamental Change, a Holder of Corporate Units may effect Fundamental Change Early Settlement of the Purchase Contracts underlying such Corporate Units pursuant to the
terms of the Purchase Contract and Pledge Agreement in integral multiples of 20 Corporate Units, or if the Applicable Ownership Interests in the Treasury Portfolio have replaced the Applicable Ownership Interests in Notes as a component of the
Corporate Units, in integral multiples of 400,000 Corporate Units. Upon Fundamental Change Early Settlement of Purchase Contracts by a Holder of the related Corporate Units, the Notes underlying the Pledged Applicable Ownership Interests in
Notes or the Applicable Ownership Interests in the Treasury Portfolio underlying such Corporate Units shall be released from the Pledge as provided in the Purchase Contract and Pledge Agreement and the Holder shall be entitled to receive a
number of Common Shares or other consideration specified in the Purchase Contract and Pledge Agreement on account of each Purchase Contract that forms a part of a Corporate Unit as to which Fundamental Change Early Settlement is effected equal
to the sum of the applicable Settlement Rate and the applicable number of Make-Whole Shares (determined, in each case, as set forth in the Purchase Contract and Pledge Agreement).
Upon registration of transfer of this Corporate Units Certificate, the transferee shall be bound (without the necessity of any other action on the part of such transferee, except as may be
required by the Purchase Contract Agent pursuant to the Purchase Contract and Pledge Agreement), under the terms of the Purchase Contract and Pledge Agreement and the Purchase Contracts evidenced hereby and the transferor shall be released from
the obligations under the Purchase Contracts evidenced by this Corporate Units Certificate. The Corporation covenants and agrees, and the Holder, by its acceptance hereof, likewise covenants and agrees, to be bound by the provisions of this
paragraph.
A-9
The Holder of this Corporate Units Certificate, by its acceptance hereof, irrevocably appoints the Purchase Contract Agent to enter into and perform under the related Purchase Contracts forming
part of the Corporate Units evidenced hereby, the Purchase Contract and Pledge Agreement and the Remarketing Agreement to be entered into among the Corporation, the Purchase Contract Agent and the Remarketing Agent(s) identified therein, as the
same may be amended, amended and restated, supplemented or otherwise modified or replaced from time to time (the “Remarketing Agreement”), on its behalf and in its name as its attorney-in-fact and the Holder of this Corporate Units Certificate
hereby authorizes the Purchase Contract Agent to take such actions on its behalf and to exercise such powers as are delegated to the Purchase Contract Agent by the terms of the Purchase Contract and Pledge Agreement, the Remarketing Agreement,
or under any other document or instrument referred to or provided for herein or in connection herewith; agrees to be bound by the terms and provisions of the Corporate Unit evidenced hereby (including, but not limited to, the terms and
provisions of the Purchase Contract forming part of such Unit, and the Purchase Contract and Pledge Agreement) for so long as it remains a Holder of such Unit; consents to, and agrees to be bound by, the Pledge of the Applicable Ownership
Interests in Notes and the underlying Notes or the Applicable Ownership Interests in the Treasury Portfolio (as specified in clause (i) of the definition of Applicable Ownership Interest in the Treasury Portfolio), as the case may be,
underlying this Corporate Units Certificate pursuant to the Purchase Contract and Pledge Agreement; and, to the extent applicable in any Insolvency Proceeding involving the Corporation, expressly withholds any consent to the assumption under
Section 365 of the Bankruptcy Code or otherwise of the Purchase Contract forming part of the Corporate Unit evidenced hereby by the Corporation or its trustee, receiver, liquidator or any person or entity performing similar functions in the
event that the Corporation becomes a debtor under the Bankruptcy Code or subject to other similar provincial, state or Federal law providing for reorganization or liquidation. The Holder further covenants and agrees that, to the extent and in
the manner provided in the Purchase Contract and Pledge Agreement, any payments with respect to the Notes underlying the Pledged Applicable Ownership Interests in Notes (other than interest payments thereon) or the Proceeds of the Applicable
Ownership Interests in the Treasury Portfolio (as specified in clause (i) of the definition of Applicable Ownership Interest in the Treasury Portfolio), as the case may be, on the Purchase Contract Settlement Date in an amount equal to the
aggregate Purchase Price, as described in the Purchase Contract and Pledge Agreement, for the related Purchase Contracts shall be paid by the Collateral Agent to the Corporation in satisfaction of such Holder’s Obligations under the related
Purchase Contracts. The Holder of this Corporate Units Certificate hereby accepts the authorizations, appointments, acknowledgments and other actions taken by the Purchase Contract Agent in accordance with the Purchase Contract and Pledge
Agreement, the Remarketing Agreement or any other document or instrument referred to or provided for or in connection with the Purchase Contract and Pledge Agreement. Upon BNYM’s receipt of any initial direction, notice or instruction
hereunder, any further instruction, notice or direction that BNYM is required to make to BNYM in its other capacities under the terms of this Agreement shall be deemed by the Holder of this Corporate Units Certificate as being made by BNYM in
such other capacities without any further action by BNYM in such other capacities.
Subject to certain exceptions, the provisions of the Purchase Contract and Pledge Agreement may be amended with the consent of the Holders of not less than a majority of the Outstanding Units.
The Corporate Units and Purchase Contracts shall be governed by, and construed in accordance with, the laws of the State of New York (without regard to conflicts of law principles thereof).
The Purchase Contracts shall not, prior to the settlement thereof, entitle the Holder to any of the rights of a holder of Common Shares.
Prior to due presentment of this Certificate for registration of transfer, the Corporation and the Purchase Contract Agent, and any agent of the Corporation or the Purchase Contract Agent, may
treat the Person in whose name this Corporate Units Certificate is registered as the owner of the Corporate Units evidenced hereby for the purpose of (subject to the applicable record date) any payment or distribution with respect to the Notes
underlying the Applicable Ownership Interests in Notes, the Applicable Ownership Interests in the Treasury Portfolio (as specified in clause (ii) of the definition thereof) or payment of Contract Adjustment Payments and performance of the
Purchase Contracts and for all other purposes whatsoever in connection with the Corporate Units, whether or not such payment, distribution, or performance shall be overdue and notwithstanding any notice to the contrary, and neither the
Corporation or the Purchase Contract Agent, nor any agent of the Corporation or the Purchase Contract Agent, shall be affected by notice to the contrary. A copy of the Purchase Contract and Pledge Agreement is available for inspection at the
offices of the Purchase Contract Agent.
A-10
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM:
|
as tenants in common
|
||
UNIF GIFT MIN ACT:
|
Custodian
|
||
(cust)
|
(minor)
|
||
Under Uniform Gifts to Minors Act of
|
|||
TENANT:
|
as tenants by the entireties
|
||
JT TEN:
|
as joint tenants with right of survivorship and not as tenants in common
|
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of Assignee)
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Corporate Units Certificates and all rights thereunder, hereby irrevocably constituting and appointing attorney, to transfer said Corporate Units Certificates on the books of
ALGONQUIN POWER & UTILITIES CORP., with full power of substitution in the premises.
Dated:
|
Signature:
|
|||
NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within Corporate Units Certificates in every particular, without alteration or enlargement or any change whatsoever.
|
Medallion Signature Guarantee:
|
A-11
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs the Purchase Contract Agent that a certificate (including in book-entry if requested by the Holder) for Common Shares deliverable upon settlement on or after the
Purchase Contract Settlement Date of the Purchase Contracts underlying the number of Corporate Units evidenced by this Corporate Units Certificate be registered in the name of, and delivered, together with a check in payment for any fractional
share, to the undersigned at the address indicated below (or to the securities account designated in writing by the Holder) unless a different name and address have been indicated below. If shares are to be registered in the name of, or
beneficial interests therein are to be transferred to, a Person other than the undersigned (or the Beneficial Owner of this Certificate), the undersigned (or the Beneficial Owner of this Certificate) will pay any transfer tax payable incident
thereto.
(if assigned to another person)
|
||||
Dated:
|
HOLDER
|
|||
If shares are to be registered in the name of and
|
||||
delivered to a Person other than the Holder, please
|
||||
(i) print such Person’s name and address and
|
Please print name and address of registered Holder:
|
|||
(ii) provide a guarantee of your signature:
|
||||
Name:
|
Name:
|
|||
Address:
|
Address:
|
|||
Social Security or other Taxpayer Identification Number, if any
|
||||
Signature:
|
Medallion Signature Guarantee:
|
A-12
ELECTION TO SETTLE EARLY/FUNDAMENTAL CHANGE EARLY SETTLEMENT
The undersigned Holder of this Corporate Units Certificate hereby irrevocably exercises the option to effect [Early Settlement] [Fundamental Change Early Settlement] in accordance with the
terms of the Purchase Contract and Pledge Agreement with respect to the Purchase Contracts underlying the number of Corporate Units evidenced by this Corporate Units Certificate specified below. The option to effect [Early Settlement]
[Fundamental Change Early Settlement] may be exercised only with respect to Purchase Contracts underlying Corporate Units in multiples of 20 Corporate Units or an integral multiple thereof; provided that if Applicable Ownership
Interests in the Treasury Portfolio have replaced Applicable Ownership Interests in the Notes as a component of the Corporate Units, Corporate Units Holders may only effect [Early Settlement] [Fundamental Change Early Settlement] in multiples
of 400,000 Corporate Units. The undersigned Holder directs the Purchase Contract Agent that a certificate for shares (including in book-entry if requested by the Holder) of Common Shares or other securities deliverable upon such [Early
Settlement] [Fundamental Change Early Settlement] be registered in the name of, and delivered, together with a check in payment for any fractional share and (if applicable) any accrued and unpaid Contract Adjustment Payments (including deferred
Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon) payable upon such [Early Settlement] [Fundamental Change Early Settlement] and any Corporate Units Certificate representing any Corporate Units evidenced hereby
as to which [Early Settlement] [Fundamental Change Early Settlement] of the related Purchase Contracts is not effected, to the undersigned at the address indicated below (or to the securities account designated in writing by the Holder) unless
a different name and address have been indicated below. Notes underlying Pledged Applicable Ownership Interests in Notes or the Applicable Ownership Interests in the Treasury Portfolio, as the case may be, and any other Collateral deliverable
upon such [Early Settlement] [Fundamental Change Early Settlement] will be transferred in accordance with the transfer instructions set forth below. If shares are to be registered in the name of a Person other than the undersigned, the
undersigned will pay any transfer tax payable incident thereto.
Dated:
|
Signature:
|
Signature
Guarantee:
|
Number of Corporate Units evidenced hereby as to which [Early Settlement] [Fundamental Change Early Settlement] of the related Purchase Contracts is being elected:
If shares are to be registered in the name of and delivered to a Person other than the Holder, please (i) print such Person’s name and address and (ii) provide a guarantee of your signature:
|
REGISTERED HOLDER
Please print name and address of registered Holder:
|
|||
Name:
|
Name:
|
|||
Address:
|
Address:
|
|||
Social Security or other Taxpayer Identification Number, if any
|
Signature:
|
||
Signature
Guarantee:
|
Transfer Instructions for Notes underlying Pledged Applicable Ownership Interests in Notes or the Applicable Ownership Interests in the Treasury Portfolio, as the case may be, transferable upon
[Early Settlement] [Fundamental Change Early Settlement]:
A-13
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The initial number of Corporate Units evidenced by this Global Certificate is [ ]. The following increases or decreases in this Global Certificate have been made:
Date
|
Amount of increase in number of Corporate Units evidenced by the Global Certificate
|
Amount of decrease in number of Corporate Units evidenced by the Global Certificate
|
Number of Corporate Units evidenced by this Global Certificate following such decrease or increase
|
Signature of authorized signatory of Collateral Agent
|
||||
A-14
(FORM OF FACE OF TREASURY UNITS CERTIFICATE)
[For inclusion in Global Certificate only — THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE PURCHASE CONTRACT AND PLEDGE AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED
IN THE NAME OF CEDE & CO., AS THE NOMINEE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE “DEPOSITORY”), THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY. THIS CERTIFICATE IS EXCHANGEABLE FOR CERTIFICATES REGISTERED
IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AND PLEDGE AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE
BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
B-1
No.
|
CUSIP No. 015857 865
|
Number of Treasury Units:
|
ISIN No. US0158578650
|
ALGONQUIN POWER & UTILITIES CORP.
Treasury Units
This Treasury Units Certificate certifies that Cede & Co. is the registered Holder of the number of Treasury Units set forth above [For inclusion in Global Certificates only — or such other
number of Treasury Units reflected in the Schedule of Increases or Decreases in Global Certificate attached hereto, which number, taken together with the number of all other Outstanding Treasury Units and the number of all Outstanding Corporate
Units, shall not exceed 20,000,000 Units (as increased by the number of Units, if any, with respect to which the underwriters in the Units offering exercise their over-allotment option). Each Treasury Unit consists of (i) a 1/20 or 5%
undivided beneficial ownership interest in a Treasury Security having a principal amount at maturity equal to $1,000, subject to the Pledge of such Treasury Security by such Holder pursuant to the Purchase Contract and Pledge Agreement, and
(ii) the rights and obligations of the Holder under one Purchase Contract with the Corporation pursuant to which (A) the Holder will agree to purchase from the Corporation, and the Corporation will agree to sell to the Holder, on the Purchase
Contract Settlement Date (unless a Termination Event, an Early Settlement or a Fundamental Change Early Settlement has occurred), for the Stated Amount in cash, a number of Common Shares equal to the Settlement Rate, subject to anti-dilution
adjustments and (B) the Corporation will pay the Holder quarterly Contract Adjustment Payments, subject to the Corporation’s right to defer such Contract Adjustment Payments.
All capitalized terms used herein that are defined in the Purchase Contract and Pledge Agreement (as defined on the reverse hereof) have the meaning set forth therein.
In the event of any inconsistency between the provisions of this Treasury Units Certificate and the provisions of the Purchase Contract and Pledge Agreement, the provisions of the Purchase
Contract and Pledge Agreement shall govern and control.
Pursuant to the Purchase Contract and Pledge Agreement, the Treasury Securities underlying each Treasury Unit evidenced hereby have been pledged to the Collateral Agent, for the benefit of the
Corporation, to secure the Obligations of the Holder under the Purchase Contract comprising part of such Treasury Unit.
Each Purchase Contract evidenced hereby obligates the Holder of this Treasury Units Certificate to purchase, and the Corporation to sell, on the Purchase Contract Settlement Date, at a Purchase
Price equal to the Stated Amount, a number of Common Shares equal to the Settlement Rate, unless on or prior to the Purchase Contract Settlement Date there shall have occurred a Termination Event, an Early Settlement or a Fundamental Change
Early Settlement with respect to such Purchase Contract, all as provided in the Purchase Contract and Pledge Agreement. The Purchase Price for the Common Shares purchased pursuant to each Purchase Contract evidenced hereby, if not paid
earlier, shall be paid on the Purchase Contract Settlement Date by application of the proceeds from the Treasury Securities at maturity pledged to secure the Holder’s Obligations under such Purchase Contract.
B-2
Each Purchase Contract evidenced hereby obligates each Holder and Beneficial Owner to agree, for U.S. federal, state and local income tax purposes (unless otherwise required by any taxing
authority or as required by a change in law occurring after the date of the original issuance of the applicable Corporate Units), to treat each Beneficial Owner of a Treasury Unit as the owner, separately of each of the applicable Purchase
Contract and the applicable interests in the Treasury Securities.
By purchase of a Corporate Unit upon issuance the Holder or Beneficial Owner agrees to allocate 100% of the issue price of a Corporate Unit to the Note, and to allocate 0% to the Purchase
Contract, and to file all Canadian income tax returns and information returns in a manner consistent with the foregoing.
The Corporation shall pay, on each Contract Adjustment Payment Date, in respect of each Purchase Contract forming part of a Treasury Unit evidenced hereby, an amount (the “Contract
Adjustment Payments”) equal to 6.57% per year of the Stated Amount, computed on the basis of a 360-day year consisting of twelve 30-day months. Such Contract Adjustment Payments shall be payable to the Person in whose name this Treasury
Units Certificate is registered at the close of business on the Record Date for such Contract Adjustment Payment Date. The Corporation may, at its option, defer such Contract Adjustment Payments, as described in the Purchase Contract and
Pledge Agreement. The Contract Adjustment Payments are unsecured and will rank subordinate and junior in right of payment to all of the Corporation’s existing and future Priority Indebtedness.
If the book-entry system for the Treasury Units has been terminated, the Contract Adjustment Payments will be payable by check delivered to the address of the Person entitled thereto at such
Person’s address as it appears on the Security Register or, if such Person so requests and designates an account in writing to the Purchase Contract Agent at least five Business Days prior to the relevant Payment Date, by wire transfer to such
account.
Reference is hereby made to the further provisions set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Purchase Contract Agent by manual, electronic or facsimile signature, this Treasury Units Certificate shall not be
entitled to any benefit under the Purchase Contract and Pledge Agreement or be valid or obligatory for any purpose.
B-3
IN WITNESS WHEREOF, the Corporation and the Holder specified above have caused this instrument to be duly executed.
ALGONQUIN POWER & UTILITIES CORP.
|
||
By:
|
||
Name:
|
||
Title:
|
||
By:
|
||
Name:
|
||
Title:
|
||
HOLDER SPECIFIED ABOVE (as to obligations of such Holder under the Purchase Contracts)
|
||
By:
|
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., not individually but solely as attorney-in-fact of such Holder
|
|
By:
|
||
Authorized Signatory
|
CERTIFICATE OF AUTHENTICATION OF
PURCHASE CONTRACT AGENT
PURCHASE CONTRACT AGENT
This is one of the Treasury Units Certificates referred to in the within mentioned Purchase Contract and Pledge Agreement.
By: | The Bank of New York Mellon Trust Company, N.A., as Purchase Contract Agent | |
By:
|
||
Authorized Signatory
|
B-4
(REVERSE OF TREASURY UNITS CERTIFICATE)
Each Purchase Contract evidenced hereby is governed by a Purchase Contract and Pledge Agreement, dated as of June 23, 2021 (as may be supplemented from time to time, the “Purchase Contract
and Pledge Agreement”) among the Corporation and The Bank of New York Mellon Trust Company, N.A., as Purchase Contract Agent and attorney-in-fact for the Holders of Corporate Units and Treasury Units from time to time, as Collateral
Agent, as Custodial Agent and as Securities Intermediary, to which Purchase Contract and Pledge Agreement and supplemental agreements thereto reference is hereby made for a description of the respective rights, limitations of rights,
obligations, duties and immunities thereunder of the Purchase Contract Agent, the Corporation and the Holders and of the terms upon which the Treasury Units Certificates are, and are to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this Treasury Units Certificate to purchase, and the Corporation to sell, on the Purchase Contract Settlement Date at a price
equal to the Stated Amount, a number of Common Shares equal to the Settlement Rate, unless an Early Settlement, a Fundamental Change Early Settlement or a Termination Event with respect to the Unit of which such Purchase Contract is a part
shall have occurred. The Settlement Rate is subject to adjustment as described in the Purchase Contract and Pledge Agreement.
No fractional Common Shares will be issued upon settlement of any Purchase Contracts, as provided in Section 5.09 of the Purchase Contract and Pledge Agreement.
Each Purchase Contract evidenced hereby that is settled through Early Settlement or Fundamental Change Early Settlement shall obligate the Holder of the related Treasury Units to purchase at
the Purchase Price, and the Corporation to sell, a number of Common Shares equal to the Minimum Settlement Rate, in the case of an Early Settlement, or the Settlement Rate plus the applicable number of Make-Whole Shares (determined, in each
case, as set forth in the Purchase Contract and Pledge Agreement), in the case of a Fundamental Change Early Settlement.
In accordance with the terms of the Purchase Contract and Pledge Agreement, the Holder of this Treasury Units Certificate shall pay the Purchase Price for the Common Shares purchased pursuant
to each Purchase Contract evidenced hereby either by effecting an Early Settlement or, if applicable, a Fundamental Change Early Settlement of each such Purchase Contract or by applying the proceeds of the Pledged Treasury Securities underlying
such Holder’s Treasury Unit equal to the Purchase Price for such Purchase Contract to the purchase of the Common Shares. A Holder of Treasury Units who does not, in the manner and at the times provided in the Purchase Contract and Pledge
Agreement, make an effective Early Settlement or Fundamental Change Early Settlement, shall pay the Purchase Price, as described in the Purchase Contract and Pledge Agreement, for the Common Shares to be issued under the related Purchase
Contract from the proceeds of the Pledged Treasury Securities.
The Corporation shall not be obligated to issue any Common Shares in respect of a Purchase Contract or deliver any certificates therefor to the Holder unless it shall have received payment of
the aggregate Purchase Price, as described in the Purchase Contract and Pledge Agreement, for the Common Shares to be purchased thereunder in the manner set forth in the Purchase Contract and Pledge Agreement.
B-5
The Purchase Contracts and all obligations and rights of the Corporation and the Holders thereunder, including, without limitation, the rights of the Holders to receive and the obligation of
the Corporation to pay any Contract Adjustment Payments, shall immediately and automatically terminate, without the necessity of any notice or action by any Holder, the Purchase Contract Agent or the Corporation, if, on or prior to the Purchase
Contract Settlement Date, a Termination Event shall have occurred. Upon the occurrence of a Termination Event, the Corporation shall give written notice to the Purchase Contract Agent, the Collateral Agent and the Holders, at their addresses
as they appear in the Security Register. Upon the occurrence of a Termination Event, the Collateral Agent shall release the Treasury Securities underlying each Treasury Unit, and all other Collateral, from the Pledge. A Treasury Unit shall
thereafter represent the right to receive the Treasury Security underlying such Treasury Unit, in accordance with the terms of the Purchase Contract and Pledge Agreement.
The Treasury Units Certificates are issuable only in registered form and only in denominations of a single Treasury Unit and any integral multiple thereof. The transfer of any Treasury Units
Certificate will be registered and Treasury Units Certificates may be exchanged as provided in the Purchase Contract and Pledge Agreement. A Holder who elects to substitute Notes for Treasury Securities, thereby recreating Corporate Units,
shall be responsible for any fees or expenses payable in connection therewith. Except as provided in the Purchase Contract and Pledge Agreement, such Treasury Unit shall not be separable into its constituent parts, and the rights and
obligations of the Holder of such Treasury Unit in respect of the interest in the Treasury Security and the Purchase Contract constituting such Treasury Unit may be acquired, and may be transferred and exchanged, only as a Treasury Unit.
Subject to, and in compliance with, the terms and conditions set forth in the Purchase Contract and Pledge Agreement, the Holder of Treasury Units may effect a Collateral Substitution. From
and after such substitution, each Unit for which Pledged Applicable Ownership Interests in Notes secure the Holder’s obligation under the Purchase Contract shall be referred to as a “Corporate Unit.” Subject to certain exceptions described in
the Purchase Contract and Pledge Agreement, a Holder may make such Collateral Substitution only in integral multiples of 20 Treasury Units for 20 Corporate Units.
Subject to and upon compliance with the provisions of, and certain exceptions described in, the Purchase Contract and Pledge Agreement, at the option of the Holder thereof, Purchase Contracts
underlying Units may be settled early by effecting an Early Settlement as provided in the Purchase Contract and Pledge Agreement in integral multiples of 20 Treasury Units.
Upon Early Settlement of Purchase Contracts by a Holder of the related Units, the Pledged Treasury Securities underlying such Units shall be released from the Pledge as provided in the Purchase
Contract and Pledge Agreement and the Holder shall be entitled to receive a number of Common Shares equal to the Minimum Settlement Rate for each Purchase Contract as to which Early Settlement is effected.
B-6
Upon the occurrence of a Fundamental Change, a Holder of Treasury Units may effect Fundamental Change Early Settlement of the Purchase Contracts underlying such Treasury Units pursuant to the
terms of the Purchase Contract and Pledge Agreement in integral multiples of 20 Treasury Units. Upon Fundamental Change Early Settlement of Purchase Contracts by a Holder of the related Treasury Units, the Pledged Treasury Securities
underlying such Treasury Units shall be released from the Pledge as provided in the Purchase Contract and Pledge Agreement and the Holder shall be entitled to receive a number of Common Shares or other consideration specified in the Purchase
Contract and Pledge Agreement on account of each Purchase Contract that forms a part of a Treasury Unit as to which Fundamental Change Early Settlement is effected equal to the sum of the Settlement Rate and the applicable number of Make-Whole
Shares (determined, in each case, as set forth in the Purchase Contract and Pledge Agreement).
Upon registration of transfer of this Treasury Units Certificate, the transferee shall be bound (without the necessity of any other action on the part of such transferee, except as may be
required by the Purchase Contract Agent pursuant to the Purchase Contract and Pledge Agreement), under the terms of the Purchase Contract and Pledge Agreement and the Purchase Contracts evidenced hereby and the transferor shall be released from
the obligations under the Purchase Contracts evidenced by this Treasury Units Certificate. The Corporation covenants and agrees, and the Holder, by its acceptance hereof, likewise covenants and agrees, to be bound by the provisions of this
paragraph.
The Holder of this Treasury Units Certificate, by its acceptance hereof, irrevocably appoints the Purchase Contract Agent to enter into and perform under the related Purchase Contracts forming
part of the Treasury Units evidenced hereby, the Purchase Contract and Pledge Agreement and the Remarketing Agreement to be entered into among the Corporation, the Purchase Contract Agent and the Remarketing Agent(s) identified therein, as the
same may be amended, amended and restated, supplemented or otherwise modified or replaced from time to time (the “Remarketing Agreement”), on its behalf and in its name as its attorney-in-fact and the Holder of this Treasury Units Certificate
hereby authorizes the Purchase Contract Agent to take such actions on its behalf and to exercise such powers as are delegated to the Purchase Contract Agent by the terms of the Purchase Contract and Pledge Agreement, the Remarketing Agreement,
or under any other document or instrument referred to or provided for herein or in connection herewith; agrees to be bound by the terms and provisions of the Treasury Unit evidenced hereby (including, but not limited to, the terms and
provisions of the Purchase Contract forming part of such Unit, and the Purchase Contract and Pledge Agreement) for so long as it remains a Holder of such Unit; consents to, and agrees to be bound by, the Pledge of the Pledged Treasury
Securities underlying this Treasury Units Certificate pursuant to the Purchase Contract and Pledge Agreement; and, to the extent applicable in any Insolvency Proceeding involving the Corporation, expressly withholds any consent to the
assumption under Section 365 of the Bankruptcy Code or otherwise of the Purchase Contract forming part of the Treasury Unit evidenced hereby by the Corporation or its trustee, receiver, liquidator or any person or entity performing similar
functions in the event that the Corporation becomes a debtor under the Bankruptcy Code or subject to other similar provincial, state or Federal law providing for reorganization or liquidation. The Holder further covenants and agrees, that, to
the extent and in the manner provided in the Purchase Contract and Pledge Agreement, payments in respect to the aggregate principal amount at maturity of the Pledged Treasury Securities on the Purchase Contract Settlement Date equal to the
aggregate Purchase Price, as described in the Purchase Contract and Pledge Agreement, for the related Purchase Contracts shall be paid by the Collateral Agent to the Corporation in satisfaction of such Holder’s Obligations under such Purchase
Contracts. The Holder of this Treasury Units Certificate hereby accepts the authorizations, appointments, acknowledgments and other actions taken by the Purchase Contract Agent in accordance with the Purchase Contract and Pledge Agreement, the
Remarketing Agreement or any other document or instrument referred to or provided for or in connection with the Purchase Contract and Pledge Agreement. Upon BNYM’s receipt of any initial direction, notice or instruction hereunder, any further
instruction, notice or direction that BNYM is required to make to BNYM in its other capacities under the terms of this Agreement shall be deemed by the Holder of this Treasury Units Certificate as being made by BNYM in such other capacities
without any further action by BNYM in such other capacities.
B-7
Subject to certain exceptions, the provisions of the Purchase Contract and Pledge Agreement may be amended with the consent of the Holders of not less than a majority of the Outstanding Units.
The Purchase Contracts shall be governed by, and construed in accordance with, the laws of the State of New York (without regard to conflicts of law principles thereof).
The Purchase Contracts shall not, prior to the settlement thereof, entitle the Holder to any of the rights of a holder of Common Shares.
Prior to due presentment of this Certificate for registration of transfer, the Corporation and the Purchase Contract Agent, and any agent of the Corporation or the Purchase Contract Agent, may
treat the Person in whose name this Treasury Units Certificate is registered as the owner of the Treasury Units evidenced hereby for the purpose of (subject to the applicable record date) any payment of Contract Adjustment Payments and
performance of the Purchase Contracts and for all other purposes whatsoever in connection with the Treasury Units, whether or not such payment, distribution, or performance shall be overdue and notwithstanding any notice to the contrary, and
neither the Corporation or the Purchase Contract Agent, nor any agent of the Corporation or the Purchase Contract Agent, shall be affected by notice to the contrary. A copy of the Purchase Contract and Pledge Agreement is available for
inspection at the offices of the Purchase Contract Agent.
B-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM:
|
as tenants in common
|
||
UNIF GIFT MIN ACT:
|
Custodian
|
||
(cust)
|
(minor)
|
||
Under Uniform Gifts to Minors Act of
|
|||
TENANT:
|
as tenants by the entireties
|
||
JT TEN:
|
as joint tenants with right of survivorship and not as tenants in common
|
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of Assignee)
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Treasury Units Certificates and all rights thereunder, hereby irrevocably constituting and appointing attorney, to transfer said Treasury Units Certificates on the books of
ALGONQUIN POWER & UTILITIES CORP., with full power of substitution in the premises.
Dated:
|
Signature:
|
|||
NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within Treasury Units Certificates in every particular, without alteration or
enlargement or any change whatsoever.
|
||||
Signature Guarantee:
|
B-9
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs the Purchase Contract Agent that a certificate (including in book-entry if requested by the Holder) for Common Shares deliverable upon settlement on or after the
Purchase Contract Settlement Date of the Purchase Contracts underlying the number of Treasury Units evidenced by this Treasury Units Certificate be registered in the name of, and delivered, together with a check in payment for any fractional
share, to the undersigned at the address indicated below (or to the securities account designated in writing by the Holder) unless a different name and address have been indicated below. If shares are to be registered in the name of, or
beneficial interests therein are to be transferred to, a Person other than the undersigned (or the Beneficial Owner of this Certificate), the undersigned (or the Beneficial Owner of this Certificate) will pay any transfer tax payable incident
thereto.
(if assigned to another person)
|
||||
Dated:
|
REGISTERED HOLDER
|
|||
If shares are to be registered in the name of and
|
Please print name and address of registered Holder:
|
|||
delivered to a Person other than the Holder, please
|
||||
(i) print such Person’s name and address and
|
||||
(ii) provide a guarantee of your signature:
|
||||
Name:
|
Name:
|
|||
Address:
|
Address:
|
|||
Social Security or other Taxpayer Identification Number, if any
|
||||
Signature:
|
||||
Signature
Guarantee:
|
B-10
ELECTION TO SETTLE EARLY/FUNDAMENTAL CHANGE EARLY SETTLEMENT
The undersigned Holder of this Treasury Units Certificate hereby irrevocably exercises the option to effect [Early Settlement] [Fundamental Change Early Settlement] in accordance with the terms
of the Purchase Contract and Pledge Agreement with respect to the Purchase Contracts underlying the number of Treasury Units evidenced by this Treasury Units Certificate specified below. The option to effect [Early Settlement] [Fundamental
Change Early Settlement] may be exercised only with respect to Purchase Contracts underlying Treasury Units in multiples of 20 Treasury Units or an integral multiple thereof. The undersigned Holder directs the Purchase Contract Agent that a
certificate for shares (including in book-entry if requested by the Holder) of Common Shares or other securities deliverable upon such [Early Settlement] [Fundamental Change Early Settlement] be registered in the name of, and delivered,
together with a check in payment for any fractional share and (if applicable) any accrued and unpaid Contract Adjustment Payments (including deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon) payable upon
such [Early Settlement] [Fundamental Change Early Settlement] and any Treasury Units Certificate representing any Treasury Units evidenced hereby as to which [Early Settlement] [Fundamental Change Early Settlement] of the related Purchase
Contracts is not effected, to the undersigned at the address indicated below (or to the securities account designated in writing by the Holder) unless a different name and address have been indicated below. Pledged Treasury Securities
deliverable upon such [Early Settlement] [Fundamental Change Early Settlement] will be transferred in accordance with the transfer instructions set forth below. If shares are to be registered in the name of a Person other than the undersigned,
the undersigned will pay any transfer tax payable incident thereto.
Dated:
|
Signature:
|
|||
Signature
Guarantee:
|
Number of Treasury Units evidenced hereby as to which [Early Settlement] [Fundamental Change Early Settlement] of the related Purchase Contracts is being elected:
If shares are to be registered in the name of and delivered to a Person other than the Holder, please (i) print such Person’s name and address and (ii) provide a guarantee of your signature:
|
REGISTERED HOLDER
Please print name and address of registered Holder:
|
|||
Name:
|
Name:
|
|||
Address:
|
Address:
|
|||
Social Security or other Taxpayer Identification Number, if any
|
Signature:
|
||
Signature
Guarantee:
|
Transfer Instructions for Pledged Treasury Securities transferable upon [Early Settlement] [Fundamental Change Early Settlement]:
B-11
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The initial number of Treasury Units evidenced by this Global Certificate is [ ]. The following increases or decreases in this Global Certificate have been made:
Date
|
Amount of increase in number of Treasury Units evidenced by the Global Certificate
|
Amount of decrease in number of Treasury Units evidenced by the Global Certificate
|
Number of Treasury Units evidenced by this Global Certificate following such decrease or increase
|
Signature of authorized signatory of Collateral Agent
|
||||
B-12
EXHIBIT C
INSTRUCTION TO PURCHASE CONTRACT AGENT FROM HOLDER
(To Create Treasury Units or Corporate Units)
(To Create Treasury Units or Corporate Units)
The Bank of New York Mellon Trust Company, N.A.,
as Purchase Contract Agent
as Purchase Contract Agent
4655 Salisbury Road, Suite 300
Jacksonville, Florida 32256
Attention: Corporate Trust Administration
Algonquin Power & Utilities Corp.
[email protected]
[email protected]
Re: |
[Corporate Units, CUSIP No. 015857 873,] [Treasury Units, CUSIP No. 015857 865,] of ALGONQUIN POWER & UTILITIES CORP., a Canadian corporation (the “Corporation”).
|
The undersigned Holder hereby notifies you that it has deposited with The Bank of New York Mellon Trust Company, N.A., as Collateral Agent, for credit to the Collateral Account, $[ ]
principal amount at maturity of [Notes] [Treasury Securities] in exchange for an equal principal amount at maturity of [Pledged Treasury Securities] [Notes underlying Pledged Applicable Ownership Interests in Notes] held in the Collateral
Account, in accordance with the Purchase Contract and Pledge Agreement, dated as of June 23, 2021 (the “Agreement”; unless otherwise defined herein, terms defined in the Agreement are used herein as defined therein), among the
Corporation and The Bank of New York Mellon Trust Company, N.A., as Purchase Contract Agent and attorney-in-fact for the holders of Corporate Units (as defined in the Agreement) and Treasury Units (as defined in the Agreement) from time to
time, as Collateral Agent, as Custodial Agent and as Securities Intermediary. The undersigned Holder has paid all applicable fees and expenses relating to such exchange. Pursuant to Section [3.13, relating to creation of Treasury
Units,][3.14, relating to recreation of Corporate Units,] of the Agreement, the undersigned Holder hereby instructs you to instruct the Collateral Agent to release to you on behalf of the undersigned Holder and in accordance with Applicable
Procedures the [Notes underlying Pledged Applicable Ownership Interests in Notes] [Pledged Treasury Securities] in the amount of [$________] related to such [Corporate Units] [Treasury Units], free and clear of the Collateral Agent’s security
interest, for further credit to [____________________] by [___________________].
Dated:
|
Signature:
|
|||
Medallion
Signature
Guarantee:
|
Please print name and address of Holder:
A. Name of DTC Participant:
B. If applicable, physical address for
Delivery of such [Notes][Treasury Securities]
(if different from above):
Social Security or other Taxpayer
Identification Number, if any:
Identification Number, if any:
DTC Participant code:
Phone:
Email:
C-1
EXHIBIT D
NOTICE FROM PURCHASE CONTRACT AGENT
TO HOLDERS UPON TERMINATION EVENT
TO HOLDERS UPON TERMINATION EVENT
(Transfer of Collateral upon Occurrence of a Termination Event)
[HOLDER]
Attention:
Telecopy:
Algonquin Power & Utilities Corp.
[email protected]
[email protected]
Re: |
[Corporate Units] [Treasury Units] of Algonquin Power & Utilities Corp., a Canadian corporation (the “Corporation”).
|
Please refer to the Purchase Contract and Pledge Agreement, dated as of June 23, 2021 (the “Purchase Contract and Pledge Agreement”; unless otherwise defined herein, terms defined in the Purchase Contract
and Pledge Agreement are used herein as defined therein), among the Corporation and The Bank of New York Mellon Trust Company, N.A., as Purchase Contract Agent and attorney-in-fact for the holders of Corporate Units and Treasury Units from time
to time, as Collateral Agent, as Custodial Agent and as Securities Intermediary.
We hereby notify you that a Termination Event has occurred and that [the Notes underlying the Pledged Applicable Ownership Interests in Notes] [the Applicable Ownership Interests in the Treasury Portfolio] [the
Treasury Securities] comprising a portion of your ownership interest in [Corporate Units] [Treasury Units] have been released and are being held by us for your account pending receipt of transfer instructions with respect to such [Notes]
[Applicable Ownership Interests in the Treasury Portfolio] [Pledged Treasury Securities] (the “Released Securities”).
Pursuant to Section 3.15 of the Purchase Contract and Pledge Agreement, we hereby request written transfer instructions with respect to the Released Securities. Upon receipt of your instructions and upon
transfer to us of your [Corporate Units] [Treasury Units] effected through book-entry or by delivery to us of your [Corporate Units Certificate] [Treasury Units Certificate], we shall transfer the Released Securities by book-entry transfer or
other appropriate procedures, in accordance with your instructions. In the event you fail to effect such transfer or delivery, the Released Securities and any distributions thereon, shall be held in our name, or a nominee in trust for your
benefit, until such time as such [Corporate Units] [Treasury Units] are transferred or your [Corporate Units Certificate] [Treasury Units Certificate] is surrendered or satisfactory evidence is provided that such [Corporate Units Certificate]
[Treasury Units Certificate] has been destroyed, lost or stolen, together with any indemnification that we or the Corporation may require.
Dated:
|
||
By: The Bank of New York Mellon Trust Company, N.A.,
as Purchase Contract Agent
|
||
Name:
|
||
Title:
|
||
Authorized Signatory
|
C-2
EXHIBIT E
NOTICE TO SETTLE WITH CASH
The Bank of New York Mellon Trust Company, N.A.,
as Purchase Contract Agent
4655 Salisbury Road, Suite 300
Jacksonville, Florida 32256
Attention: Corporate Trust Administration
Algonquin Power & Utilities Corp.
[email protected]
[email protected]
Re: |
Corporate Units of Algonquin Power & Utilities Corp., a Canadian corporation (the “Corporation”).
|
The undersigned Holder hereby irrevocably notifies you in accordance with Section 5.03 of the Purchase Contract and Pledge Agreement, dated as of June 23, 2021 (the “Purchase Contract and
Pledge Agreement”; unless otherwise defined herein, terms defined in the Purchase Contract and Pledge Agreement are used herein as defined therein), among the Corporation and The Bank of New York Mellon Trust Company, N.A., as Purchase
Contract Agent and attorney-in-fact for the holders of Corporate Units and Treasury Units from time to time, as Collateral Agent, as Custodial Agent and as Securities Intermediary, that such Holder has elected, prior to 4:00 p.m. (New York
City time) on the second Business Day immediately preceding the first day of the Final Remarketing Period, to pay to or upon the order of the Securities Intermediary for deposit in the Collateral Account, prior to 4:00 p.m. (New York City
time) on the first Business Day immediately preceding the first day of the Final Remarketing Period (in Cash by certified or cashier’s check or wire transfer, in immediately available funds) $[ ] as the Purchase Price for the Common
Shares issuable to such Holder by the Corporation with respect to [ ] Purchase Contracts on the Purchase Contract Settlement Date. The undersigned Holder hereby instructs you to notify promptly the Collateral Agent of the undersigned
Holder’s election to make such Cash Settlement with respect to the Purchase Contracts related to such Holder’s Corporate Units.
Dated:
|
Signature:
|
|||
Medallion
|
||||
Signature
|
||||
Guarantee:
|
Please print name and address of Holder:
Name of DTC Participant:
Social Security or other Taxpayer
Identification Number, if any:
Identification Number, if any:
DTC Participant code:
Phone:
Email:
E-1
Wire instructions for payment of:
Bank Name:
Bank Address:
Wire ABA:
ACH ABA:
For the account of:
Account No.:
Amount:
Any written notices should be sent to:
Name(s):
Address:
Email:
U.S. Federal Tax Information
If you, a DTC participant, do not have a W-9 (or other appropriate tax form) on file with the Purchase Contract Agent, you must attach a completed W-9 form (or other appropriate tax form), a copy of which is
available at: http//www.irs.gov.
E-2
EXHIBIT F
INSTRUCTION
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Creation of Treasury Units)
The Bank of New York Mellon Trust Company, N.A.,
as Collateral Agent
4655 Salisbury Road, Suite 300
Jacksonville, Florida 32256
Attention: Corporate Trust Administration
Algonquin Power & Utilities Corp.
[email protected]
[email protected]
Re:
|
Corporate Units of Algonquin Power & Utilities Corp. (the “Corporation”).
|
Please refer to the Purchase Contract and Pledge Agreement, dated as of June 23, 2021 (the “Agreement”), among the Corporation and The Bank of New York Mellon Trust Company, N.A., as
Purchase Contract Agent and attorney-in-fact for the holders of Corporate Units and Treasury Units from time to time, as Collateral Agent, as Custodial Agent and as Securities Intermediary. Capitalized terms used herein but not defined shall
have the meaning set forth in the Agreement.
We hereby notify you in accordance with Section 3.13 of the Agreement that the holder of securities named below (the “Holder”) has elected to substitute $[ ] aggregate principal
amount at maturity of Treasury Securities and/or security entitlements with respect thereto in exchange for an equal aggregate principal amount of Notes underlying Pledged Applicable Ownership Interests in Notes relating to [ ] Corporate
Units and has delivered to the undersigned a notice stating that the Holder has Transferred such Treasury Securities and/or security entitlements with respect thereto to the Collateral Agent, for credit to the Collateral Account.
We hereby request that you instruct the Securities Intermediary, upon confirmation that such Treasury Securities and/or security entitlements thereto have been credited to the Collateral
Account, to Transfer to the undersigned an equal aggregate principal amount at maturity of Notes underlying Pledged Applicable Ownership Interests in Notes or security entitlements with respect thereto related to [ ] Corporate Units of
such Holder in accordance with Section 3.13 of the Agreement.
Dated:
|
By: The Bank of New York Mellon Trust Company, N.A.,
as Purchase Contract Agent and attorney-in-fact
of the Holders from time to time of the Units
as Purchase Contract Agent and attorney-in-fact
of the Holders from time to time of the Units
Name:
|
|
Title:
|
|
Authorized Signatory
|
F-1
Please print name and address of Holder electing to substitute Treasury Securities and/or security entitlements with respect thereto for the Notes underlying Pledged Applicable Ownership Interests in Notes:
Name
|
Social Security or other Taxpayer Identification Number, if any
|
|
F-2
EXHIBIT G
INSTRUCTION
FROM COLLATERAL AGENT
TO SECURITIES INTERMEDIARY
(Creation of Treasury Units)
FROM COLLATERAL AGENT
TO SECURITIES INTERMEDIARY
(Creation of Treasury Units)
The Bank of New York Mellon Trust Company, N.A.,
as Securities Intermediary
as Securities Intermediary
4655 Salisbury Road, Suite 300
Jacksonville, Florida 32256
Attention: Corporate Trust Administration
Algonquin Power & Utilities Corp.
[email protected]
[email protected]
Re: |
Corporate Units of Algonquin Power & Utilities Corp. (the “Corporation”).
|
Reference is hereby made to the securities account of The Bank of New York Mellon Trust Company, N.A., as Collateral Agent, maintained on the books of the Securities Intermediary and
designated “Algonquin Power & Utilities Corp. Collateral Account” (the “Collateral Account”).
Please also refer to the Purchase Contract and Pledge Agreement, dated as of June 23, 2021 (the “Agreement”), among the Corporation and The Bank of New York Mellon Trust Company, N.A.,
as Purchase Contract Agent and attorney-in-fact for the holders of Corporate Units and Treasury Units from time to time, as Collateral Agent, as Custodial Agent and as Securities Intermediary. Capitalized terms used herein but not defined
shall have the meaning set forth in the Agreement.
When you have confirmed that $[ ] aggregate principal amount at maturity of Treasury Securities and/or security entitlements with respect thereto has been credited to the Collateral
Account by or for the benefit of [ ], as Holder of [ ] Corporate Units (the “Holder”), you are hereby instructed to release from the Collateral Account an equal aggregate principal amount of Notes underlying Pledged Applicable
Ownership Interests in Notes or security entitlements with respect thereto relating to [ ] Corporate Units of the Holder by Transfer to the Purchase Contract Agent.
Dated:
|
By: The Bank of New York Mellon Trust Company, N.A.,
as Collateral Agent
as Collateral Agent
Name:
|
|
Title:
|
|
Authorized Signatory
|
G-1
EXHIBIT H
INSTRUCTION
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Recreation of Corporate Units)
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Recreation of Corporate Units)
The Bank of New York Mellon Trust Company, N.A.,
as Collateral Agent
4655 Salisbury Road, Suite 300
as Collateral Agent
4655 Salisbury Road, Suite 300
Jacksonville, Florida 32256
Attention: Corporate Trust Administration
Algonquin Power & Utilities Corp.
[email protected]
[email protected]
Re:
|
Treasury Units of Algonquin Power & Utilities Corp. (the “Corporation”).
|
Please refer to the Purchase Contract and Pledge Agreement, dated as of June 23, 2021 (the “Agreement”), among the Corporation and The Bank of New York Mellon Trust Company, N.A., as
Purchase Contract Agent and attorney-in-fact for the holders of Corporate Units and Treasury Units from time to time, as Collateral Agent, as Custodial Agent and as Securities Intermediary. Capitalized terms used herein but not defined shall
have the meaning set forth in the Agreement.
We hereby notify you in accordance with Section 3.14 of the Agreement that the holder of securities named below (the “Holder”) has elected to substitute $[ ] principal amount of
Notes relating to [ ] Corporate Units in exchange for $[ ] principal amount at maturity of Pledged Treasury Securities relating to [ ] Treasury Units and has delivered to the undersigned a notice stating that the Holder has
Transferred such Notes or security entitlements thereto to the Collateral Agent, for credit to the Collateral Account.
We hereby request that you instruct the Securities Intermediary, upon confirmation that such Notes or security entitlements thereto have been credited to the Collateral Account, to release to
the undersigned $[ ] aggregate principal amount at maturity of Treasury Securities related to [ ] Treasury Units of such Holder in accordance with Section 3.14 of the Agreement.
Dated:
|
By: The Bank of New York Mellon Trust Company, N.A.,
as Purchase Contract Agent
as Purchase Contract Agent
Name:
|
|
Title:
|
|
Authorized Signatory
|
H-1
Please print name and address of Holder electing to substitute Notes or security entitlements with respect thereto for Pledged Treasury Securities:
Name
|
Social Security or other Taxpayer Identification Number, if any
|
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Address
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EXHIBIT I
INSTRUCTION
FROM COLLATERAL AGENT TO
SECURITIES INTERMEDIARY
(Recreation of Corporate Units)
FROM COLLATERAL AGENT TO
SECURITIES INTERMEDIARY
(Recreation of Corporate Units)
The Bank of New York Mellon Trust Company, N.A.,
as Securities Intermediary
as Securities Intermediary
4655 Salisbury Road, Suite 300
Jacksonville, Florida 32256
Attention: Corporate Trust Administration
Algonquin Power & Utilities Corp.
[email protected]
[email protected]
Re: |
Treasury Units of Algonquin Power & Utilities Corp. (the “Corporation”).
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Reference is hereby made to the securities account of The Bank of New York Mellon Trust Company, N.A., as Collateral Agent, maintained on the books of the Securities Intermediary and
designated “Algonquin Power & Utilities Corp. Collateral Account” (the “Collateral Account”).
Please also refer to the Purchase Contract and Pledge Agreement, dated as of June 23, 2021 (the “Agreement”), among the Corporation and The Bank of New York Mellon Trust Company, N.A.,
as Purchase Contract Agent and attorney-in-fact for the holders of Corporate Units and Treasury Units from time to time, as Collateral Agent, as Custodial Agent and as Securities Intermediary. Capitalized terms used herein but not defined
shall have the meaning set forth in the Agreement.
When you have confirmed that $[ ] aggregate principal amount of Notes or security entitlements with respect thereto has been credited to the Collateral Account by or for the benefit of
[ ], as Holder of [ ] Treasury Units (the “Holder”), you are hereby instructed to release from the Collateral Account $[ ] aggregate principal amount at maturity of Treasury Securities by Transfer to the Purchase Contract
Agent.
Dated:
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By: The Bank of New York Mellon Trust Company, N.A.,
as Collateral Agent
as Collateral Agent
Name:
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Title:
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Authorized Signatory
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I-1
EXHIBIT J
NOTICE TO SETTLE WITH CASH FROM PURCHASE CONTRACT
AGENT TO COLLATERAL AGENT
(Cash Settlement Amounts)
AGENT TO COLLATERAL AGENT
(Cash Settlement Amounts)
The Bank of New York Mellon Trust Company, N.A.,
as Collateral Agent
as Collateral Agent
4655 Salisbury Road, Suite 300
Jacksonville, Florida 32256
Attention: Corporate Trust Administration
Algonquin Power & Utilities Corp.
[email protected]
[email protected]
Re: |
Corporate Units of Algonquin Power & Utilities Corp. (the “Corporation”)
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Please refer to the Purchase Contract and Pledge Agreement, dated as of June 23, 2021 (the “Agreement”), among the Corporation and The Bank of New York Mellon Trust Company, N.A., as
Purchase Contract Agent and attorney-in-fact for the holders of Corporate Units and Treasury Units from time to time, as Collateral Agent, as Custodial Agent and as Securities Intermediary. Unless otherwise defined herein, terms defined in
the Agreement are used herein as defined therein.
In accordance with Section 5.03(a)(iv) of the Agreement, we hereby notify you that as of 4:00 p.m. (New York City time) on the first Business Day immediately preceding the first day of the
Final Remarketing Period, we have received (i) notification from the Securities Intermediary that it has received for deposit in the Collateral Account $[ ] in immediately available funds paid in an aggregate amount equal to the Purchase
Price due to the Corporation on the Purchase Contract Settlement Date with respect to [ ] Corporate Units and (ii) based on the funds received set forth in clause (i) above, an aggregate principal amount of $[ ] of Notes underlying
Pledged Applicable Ownership Interests in Notes are to be offered for purchase in each Remarketing during the Final Remarketing Period.
Dated:
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By: The Bank of New York Mellon Trust Company, N.A.,
as Purchase Contract Agent
as Purchase Contract Agent
Name:
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Title:
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Authorized Signatory
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Please print name and address of Holder electing a Cash Settlement
Name:
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DTC Participant #
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Address
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Social Security or other Taxpayer Identification Number
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City/State/Zip
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EXHIBIT K
INSTRUCTION TO CUSTODIAL AGENT REGARDING REMARKETING
The Bank of New York Mellon Trust Company, N.A.,
as Custodial Agent
4655 Salisbury Road, Suite 300
as Custodial Agent
4655 Salisbury Road, Suite 300
Jacksonville, Florida 32256
Attention: Corporate Trust Administration
Algonquin Power & Utilities Corp.
[email protected]
[email protected]
Re: |
1.18% Remarketable Senior Notes Due 2026 of Algonquin Power & Utilities Corp. (the “Corporation”).
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The undersigned hereby notifies you in accordance with Section 5.02(d) of the Purchase Contract and Pledge Agreement, dated as of June 23, 2021 (the “Agreement”), among the Corporation and The Bank of
New York Mellon Trust Company, N.A., as Purchase Contract Agent and attorney-in-fact for the holders of Corporate Units and Treasury Units from time to time, as Collateral Agent, as Custodial Agent and as Securities Intermediary, that the
undersigned elects to deliver $[ ] aggregate principal amount of Separate Notes for delivery to the Remarketing Agent(s) prior to a Remarketing, other than during a Blackout Period, for remarketing pursuant to Section 5.02(d) of the
Agreement. The undersigned will, upon written request of the Remarketing Agent(s), execute and deliver any additional documents deemed by the Remarketing Agent(s) or by the Corporation to be necessary or desirable to complete the sale,
assignment and transfer of the Separate Notes tendered hereby. Capitalized terms used herein but not defined shall have the meaning set forth in the Agreement.
The undersigned hereby instructs you to deliver such Separate Notes to or upon the order of the Remarketing Agent(s) against payment of the Proceeds of a Successful Remarketing attributable to such Separate
Notes from the Remarketing Agent(s), and to deliver such Proceeds to the undersigned in accordance with the instructions indicated herein under “Payment Instructions” or the Depository in accordance with the Applicable Procedures of the
Depository if such Remarketing was effected through The Depository Trust Company (“DTC”). The undersigned hereby instructs you, in the event of a Failed Remarketing to deliver such Separate Notes to the person(s) and the address(es)
indicated herein under “B. Delivery Instructions.”
With this notice, the undersigned hereby (i) represents and warrants that the undersigned has full power and authority to surrender, sell, assign and transfer the Separate Notes surrendered hereby and that the
undersigned is the record owner of any Separate Notes surrendered herewith in physical form or a participant in DTC and the Beneficial Owner of any Separate Notes surrendered herewith by book-entry transfer to your account at DTC, (ii) agrees
to be bound by the terms and conditions of Section 5.02(a) or (b), as applicable, of the Agreement and (iii) acknowledges and agrees that after 4:00 p.m. (New York City time) on the second Business Day immediately preceding the first day of
the Applicable Remarketing Period, such election shall become an irrevocable election to have such Separate Notes remarketed in each Remarketing during the Applicable Remarketing Period, and that the Separate Notes surrendered herewith will
only be returned in the event of a Failed Remarketing.
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Date:
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By:
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Name:
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Title:
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Medallion
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Signature
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Guarantee: |
Name
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Address
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Social Security or other Taxpayer
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Identification Number, if any
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A. |
PAYMENT INSTRUCTIONS
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Proceeds of a Successful Remarketing attributable to the Separate Notes delivered hereunder should be paid by the following wire instructions, or if unavailable by check in the name of the person(s) set forth
below and delivered to the address set forth below.
[Wire Instructions]
Name(s):
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(Please Print)
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Address:
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(Please Print)
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(Zip Code)
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(Tax Identification or Social Security Number)
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K-2
B.
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DELIVERY INSTRUCTIONS
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In the event of a Failed Remarketing, Notes which are in physical form should be delivered to the person(s) set forth below and delivered to the address set forth below.
Name(s):
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(Please Print)
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Address:
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(Please Print)
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(Zip Code)
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(Tax Identification or Social Security Number)
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In the event of a Failed Remarketing, Notes which are in book-entry form should be credited to the account at The Depository Trust Company to the person(s) set forth below.
DTC Account Number:
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Name of Account Party:
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K-3
EXHIBIT L
INSTRUCTION TO CUSTODIAL AGENT REGARDING
WITHDRAWAL FROM REMARKETING
WITHDRAWAL FROM REMARKETING
The Bank of New York Mellon Trust Company, N.A.,
as Custodial Agent
4655 Salisbury Road, Suite 300
Jacksonville, Florida 32256
Attention: Corporate Trust Administration
Algonquin Power & Utilities Corp.
[email protected]
[email protected]
Re: |
1.18% Remarketable Senior Notes Due 2026 of Algonquin Power & Utilities Corp. (the “Corporation”)
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The undersigned hereby notifies you in accordance with Section 5.02(d) of the Purchase Contract and Pledge Agreement, dated as of June 23, 2021 (the “Agreement”), among the Corporation
and The Bank of New York Mellon Trust Company, N.A., as Purchase Contract Agent and attorney-in-fact for the holders of Corporate Units and Treasury Units from time to time, as Collateral Agent, as Custodial Agent and as Securities
Intermediary, that the undersigned elects to withdraw, other than during a Blackout Period, the $[ ] aggregate principal amount of Separate Notes delivered to you for Remarketing pursuant to Section 5.02(d) of the Agreement. The
undersigned hereby instructs you to return such Separate Notes to the person(s) and the address(es) indicated herein under “A. Delivery Instructions.”
With this notice, the undersigned hereby agrees to be bound by the terms and conditions of Section 5.02(d) of the Agreement. Capitalized terms used herein but not defined shall have the
meaning set forth in the Agreement.
Date:
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By:
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Name:
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Title:
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Medallion
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Signature
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Guarantee: |
Name
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Address
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Social Security or other Taxpayer
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Identification Number, if any
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A. |
DELIVERY INSTRUCTIONS
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In the event of a withdrawal of Separate Notes from a Remarketing, Separate Notes which are in physical form should be delivered to the person(s) set forth below and delivered to the address set forth below.
Name(s):
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(Please Print)
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Address:
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(Please Print)
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(Zip Code)
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(Zip Code)
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In the event of a withdrawal of Separate Notes from a Remarketing, Separate Notes which are in book-entry form should be credited to the account at The Depository Trust Company to the person(s) set forth below.
DTC Account Number:
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Name of Account Party:
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EXHIBIT M
NOTICE TO SETTLE WITH CASH AFTER FAILED FINAL REMARKETING
The Bank of New York Mellon Trust Company, N.A.,
as Purchase Contract Agent
4655 Salisbury Road, Suite 300
Jacksonville, Florida 32256
Attention: Corporate Trust Administration
Algonquin Power & Utilities Corp.
[email protected]
[email protected]
Re: |
Corporate Units of Algonquin Power & Utilities Corp., a Canadian corporation (the “Corporation”)
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The undersigned Holder hereby irrevocably notifies you in accordance with Section 5.02(b)(ix) of the Purchase Contract and Pledge Agreement, dated as of June 23, 2021 (the “Purchase Contract and Pledge
Agreement”), among the Corporation and The Bank of New York Mellon Trust Company, N.A., as Purchase Contract Agent and attorney-in-fact for the holders of Corporate Units and Treasury Units from time to time, as Collateral Agent, as
Custodial Agent and as Securities Intermediary, that such Holder has elected to pay to or upon the order of the Securities Intermediary for deposit in the Collateral Account, on or prior to 4:00 p.m. (New York City time) on the Business Day
immediately preceding the Purchase Contract Settlement Date (in Cash by certified or cashier’s check or wire transfer, in immediately available funds), $[ ] as the Purchase Price for the Common Shares issuable to such Holder by the
Corporation with respect to [ ] Purchase Contracts on the Purchase Contract Settlement Date. The undersigned Holder hereby instructs you to notify promptly the Collateral Agent of the undersigned Holders’ election to settle the Purchase
Contracts related to such Holder’s Corporate Units with separate cash.
Date:
Signature:
Medallion Signature Guarantee:
Please print name and address of Holder:
Name of DTC Participant:
Social Security or other Taxpayer
Identification Number, if any:
Identification Number, if any:
DTC Participant code:
Phone:
Email:
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EXHIBIT N
NOTICE
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Settlement with Separate Cash)
The Bank of New York Mellon Trust Company, N.A.,
as Collateral Agent
4655 Salisbury Road, Suite 300
Jacksonville, Florida 32256
Attention: Corporate Trust Administration
Algonquin Power & Utilities Corp.
[email protected]
[email protected]
Re: |
Corporate Units of Algonquin Power & Utilities Corp., a Canadian corporation (the “Corporation”)
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Please refer to the Purchase Contract and Pledge Agreement, dated as of June 23, 2021 (the “Agreement”), among the Corporation and The Bank of New York Mellon Trust Company, N.A., as
Purchase Contract Agent and attorney-in-fact for the holders of Corporate Units and Treasury Units from time to time, as Collateral Agent, as Custodial Agent and as Securities Intermediary. Capitalized terms used herein but not defined shall
have the meaning set forth in the Agreement.
We hereby notify you in accordance with the last paragraph of Section 5.02(b)(ix) of the Agreement that the holder of Corporate Units named below (the “Holder”) has elected to settle
the [ ] Purchase Contracts related to its Pledged Applicable Ownership Interests in Notes with $[ ] of separate cash prior to 4:00 p.m. (New York City time) on the second Business Day immediately preceding the Purchase Contract
Settlement Date (in Cash by certified or cashier’s check or wire transfer, in immediately available funds payable to or upon the order of the Securities Intermediary) and has delivered to the undersigned a notice to that effect.
We hereby request that you, upon confirmation that the Purchase Price has been paid by the Holder to the Securities Intermediary in accordance with Section 5.02(b)(ix) of the Agreement in
lieu of exercise of such Holder’s Put Right, give us notice of the receipt of such payment and, thereafter, you are instructed to, or instructed to cause the Securities Intermediary to, (A) deposit the separate cash received in the Collateral
Account and, if applicable, invest such separate cash in Permitted Investments consistent with the instructions of the Corporation as provided in Section 5.03(a)(v) of the Agreement with respect to Cash Settlement (as specified by Section
5.02(b)(ix)), (B) promptly release from the Pledge the Notes underlying the Applicable Ownership Interest in Notes related to the Corporate Units as to which such Holder has paid such separate cash; and (C) promptly Transfer all such Notes to
us for distribution to such Holder in accordance with the terms provided for in the Agreement, in each case free and clear of the Pledge created by the Agreement.
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Dated:
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By: The Bank of New York Mellon Trust Company, N.A., as Purchase
Contract Agent and attorney-in-fact of the Holders from
time to time of the Units
Name:
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Title:
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Authorized Signatory
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Please print name and address of Holder electing to settle with separate cash:
Name:
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Social Security or other Taxpayer Identification Number, if any
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Address:
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EXHIBIT O
NOTICE OF SETTLEMENT WITH SEPARATE CASH FROM
SECURITIES INTERMEDIARY TO PURCHASE CONTRACT AGENT AND
COLLATERAL AGENT
(Settlement with Separate Cash)
The Bank of New York Mellon Trust Company, N.A.,
as Purchase Contract Agent and Collateral Agent
4655 Salisbury Road, Suite 300
Jacksonville, Florida 32256
Attention: Corporate Trust Administration
Algonquin Power & Utilities Corp.
[email protected]
[email protected]
Re: |
Corporate Units of Algonquin Power & Utilities Corp. (the “Corporation”)
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Please refer to the Purchase Contract and Pledge Agreement, dated as of June 23, 2021 (the “Agreement”), among you and the Corporation. Unless otherwise defined herein, terms defined in the Agreement are
used herein as defined therein.
In accordance with the last paragraph of Section 5.02(b)(ix) of the Agreement, we hereby notify you that as of 4:00 p.m. (New York City time) on the Business Day immediately preceding the Purchase Contract
Settlement Date, (i) we have received from [ ] $[ ] in immediately available funds paid in an aggregate amount equal to the Purchase Price due to the Corporation on the Purchase Contract Settlement Date with respect to [ ]
Corporate Units and (ii) based on the funds received set forth in clause (i) above, an aggregate principal amount of $[ ] of Notes underlying related Pledged Applicable Ownership Interests in Notes are to be released from the Pledge and
Transferred to you.
The Bank of New York Mellon Trust Company, N.A., as Securities Intermediary
Dated:
By:
O-1
EXHIBIT P
FORM OF REMARKETING AGREEMENT1
[_______], 20[__]
The Bank of New York Mellon Trust Company, N.A., as Purchase Contract Agent
4655 Salisbury Road, Suite 300
4655 Salisbury Road, Suite 300
Jacksonville, Florida 32256
Attention: Corporate Trust Administration
Ladies and Gentlemen:
This Agreement is dated as of [_______], 20[__] (this “Agreement”) by and among Algonquin Power & Utilities Corp., a Canadian corporation (the “Corporation”), [_______]2, as the reset agent[s] and the remarketing agent[s] (the “Remarketing
Agent[s]”) [and as representative[s] of the Remarketing Agent[s] (the “Representative[s]”)], and The Bank of New York Mellon Trust Company, N.A., as Purchase Contract Agent (the “Purchase Contract Agent”) and as attorney-in-fact of the Holders of Purchase Contracts, relating to the appointment of [______] to serve as Remarketing Agent[s] with respect to the Remarketing of the Notes.
The Corporation has also entered into: (a) a Purchase Contract and Pledge Agreement, dated as of June 23, 2021 (the “Purchase Contract and Pledge Agreement”), between the
Corporation and The Bank of New York Mellon Trust Company, N.A., as Purchase Contract Agent, attorney-in-fact of the Holders of the Purchase Contracts, and as Collateral Agent, Custodial Agent and Securities Intermediary, and (b) an
Underwriting Agreement, dated as of June 17, 2021 (the “Underwriting Agreement”), by and among the Corporation and the several underwriters named in Schedule A thereto for whom J.P. Morgan Securities
LLC, Wells Fargo Securities, LLC, BMO Capital Markets Corp. and Morgan Stanley & Co. LLC acted as representatives, each related to the Corporation’s Corporate Units.
On June 23, 2021, the Corporation issued an aggregate of 20,000,000 Corporate Units, each of which consists of (a) a stock purchase contract (a “Purchase Contract”)
issued by the Corporation pursuant to which the holder of such Purchase Contract will purchase from the Corporation on June 15, 2024, subject to earlier termination or settlement, for an amount in cash equal to the stated amount per Equity
Unit (as defined below) of $50 (the “Stated Amount”), a number of Common Shares, no par value, of the Corporation, as set forth in the Purchase Contract and Pledge Agreement, and (b) a 1/20, or 5%,
undivided beneficial ownership interest in $1,000 principal amount of the Corporation’s 1.18% Remarketable Senior Notes due 2026 (the “Notes”) issued under the Corporation’s Indenture, dated as of June
23, 2021 (the “Base Indenture”), among the Corporation and The Bank of New York Mellon Trust Company, N.A., as U.S. trustee (the “U.S. Indenture Trustee”) and BNY
Trust Company of Canada, as Canadian trustee (together with the
1 This form of agreement contemplates that, in the event of a Public Remarketing (as defined herein), such
Public Remarketing would not be qualified for public distribution by way of a prospectus in Canada; form of agreement to be updated as necessary with such changes as are required to facilitate any such public remarketing in Canada, as
applicable.
2 Insert one or more remarketing agents to be designated by the Corporation. All subsequent references to
“Remarketing Agent” to be made plural in the case of multiple remarketing agents.
P-1
U.S. Indenture Trustee, the “Indenture Trustees”), as supplemented
and amended by the First Supplemental Indenture, dated as of June 23, 2021, among the Corporation and the Indenture Trustees (the “Supplemental Indenture” and,
together with the Base Indenture, the “Indenture”). The Notes that form part of the Corporate Units are pledged pursuant to the Purchase Contract and Pledge Agreement to secure a Corporate Unit
Holder’s Obligations under the related Purchase Contracts on the Purchase Contract Settlement Date.
The terms and conditions under which the Remarketing will occur are as provided for in the Indenture and the Purchase Contract and Pledge Agreement and as provided for herein.
Section 1. Definitions.
(a) Capitalized terms used and not defined in this Agreement shall have the meanings set forth in the Purchase Contract and Pledge Agreement.
(b) As used in this Agreement, the following terms have the following meanings:
“430B Information” means in the case of a Public Remarketing, information included in a prospectus relating to the Remarketed Notes then deemed to be a
part of the Registration Statement pursuant to Rule 430B(e) or retroactively deemed to be a part of the Registration Statement pursuant to Rule 430B(f).
“430C Information” means in the case of a Public Remarketing, information included in a prospectus relating to the Offered Securities then deemed to be
a part of the Registration Statement pursuant to Rule 430C.
“Applicable Time” means the time of first sale of Remarketed Notes during the Applicable Remarketing Period.
“Canadian Securities Laws” means the applicable securities laws in each of the provinces and territories of Canada and the respective rules and
regulations thereunder, together with applicable published fee schedules, prescribed forms, national, multilateral and local policy statements, instruments, notices and blanket orders of the Canadian Securities Regulators in each of the
provinces and territories of Canada.
“Canadian Securities Regulators” means, collectively, the securities commissions or other securities regulatory authorities in each of the provinces
and territories of Canada.
“Commencement Date” has the meaning specified in Section 3 of this Agreement.
“Commission” means the Securities and Exchange Commission.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Final Prospectus” means, in the case of a Public Remarketing, at the election of the Corporation in its absolute and sole discretion either (i) the
Statutory Prospectus that discloses the public offering price, other 430B Information and other final terms of the Remarketed Notes and otherwise satisfies Section 10(a) of the Securities Act; or (ii) the MJDS Prospectus.
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“General Disclosure Package” means (i) in the case of a Public Remarketing, the Registration Statement and any amendment thereof and the Preliminary
Prospectus, taken together with any Issuer Free Writing Prospectus used in connection with a Successful Remarketing at the Applicable Time, and (ii) in the case of a Private Remarketing, the Private Placement Marketing Materials (as defined
in Section 3(d) hereof).
“Indemnified Party” has the meaning specified in Section 7(a) of this Agreement.
“Issuer Free Writing Prospectus” means, in the case of a Public Remarketing, any “issuer free writing prospectus”, as defined in Rule 433, relating to
the Remarketed Notes in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Corporation’s records pursuant to Rule 433(g).
“MJDS Prospectus” means in the case of a Public Remarketing, the final prospectus relating to the Remarketed Notes that is included in the Registration
Statement immediately prior to that time that has been prepared in accordance with Canadian disclosure requirements pursuant to the multijurisdictional disclosure system adopted by the United States and Canada.
“Permitted Free Writing Prospectus” has the meaning specified in Section 5(j) of this Agreement.
“Preliminary Prospectus” means, in the case of a Public Remarketing, a preliminary prospectus, if any, relating to the Remarketed Notes included in the
Registration Statement, including the documents incorporated by reference therein as of the date of such preliminary prospectus.
“Private Remarketing” means a Remarketing that is conducted in accordance with Rule 144A of the Securities Act or any other exemption from registration
thereunder.
“Private Placement Marketing Materials” has the meaning specified in Section 3(d) of this Agreement.
“Public Remarketing” means a Remarketing that is conducted on a registered basis under the Securities Act.
“Registration Statement” means a registration statement, if any, under the Securities Act prepared by the Corporation covering, inter alia, the
Remarketing of the Remarketed Notes pursuant to Section 5(a) hereof, including all exhibits thereto and the documents incorporated by reference in the Preliminary Prospectus or the Final Prospectus, as applicable, and any post-effective
amendments thereto.
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“Remarketed Notes” means, with respect to all Remarketings during any Applicable Remarketing Period, the aggregate Notes underlying the Pledged
Applicable Ownership Interests in Notes and the Separate Notes, if any, subject to Remarketing as identified to the Remarketing Agent[s] by the Purchase Contract Agent and the Custodial Agent, respectively, in the case of an Optional
Remarketing, by 4:00 p.m. New York City time, on the Business Day immediately prior to the first day of the Optional Remarketing Period, or in the case of a Final Remarketing, promptly after 4:00 p.m., New York City time, on the Business Day
immediately prior to the first day of the Final Remarketing Period in accordance with the Purchase Contract and Pledge Agreement and shall include (i) the Notes underlying the Pledged Applicable Ownership Interests in Notes of the Holders of
Corporate Units who have not effected a Collateral Substitution, Early Settlement or a Fundamental Change Early Settlement in accordance with the Purchase Contract and Pledge Agreement and, in the case of a Final Remarketing, who have not
notified the Purchase Contract Agent prior to 4:00 p.m., New York City time, on the second Business Day immediately preceding the first day of the Final Remarketing Period of their intention to effect a Cash Settlement of the related Purchase
Contracts pursuant to the terms of the Purchase Contract and Pledge Agreement or who have so notified the Purchase Contract Agent but failed to make the required cash payment prior to 4:00 p.m., New York City time, on the first Business Day
immediately preceding the Final Remarketing Period and (ii) the Separate Notes of the holders of Separate Notes, if any, who have elected to have their Separate Notes remarketed in any such Remarketing pursuant to the terms of the Purchase
Contract and Pledge Agreement.
“Remarketing Fee” has the meaning specified in Section 4 of this Agreement.
“Remarketing Agent[s] Indemnified Party” has the meaning specified in Section 7(b) of this Agreement.
“Remarketing Materials” means (i) in the case of a Public Remarketing, the Registration Statement, the Preliminary Prospectus, the Final Prospectus
and/or any Issuer Free Writing Prospectus furnished by the Corporation to the Remarketing Agent[s] for distribution to investors in connection with such Remarketing or (ii) in the case of a Private Remarketing, the Private Placement Marketing
Materials.
“Representation Date” has the meaning specified in Section 3 of this Agreement.
“Reset Rate” has the meaning specified in Section 2(d) of this Agreement.
“Securities” has the meaning specified in Section 10 of this Agreement.
“Securities Act” means the Securities Act of 1933, as amended.
“Statutory Prospectus” with reference to any particular time means, in the case of a Public Remarketing, the prospectus relating to the Remarketed
Notes that is included in the Registration Statement immediately prior to that time, including all 430B Information and all 430C Information with respect to the Registration Statement. For purposes of the foregoing definition, 430B
Information shall be considered to be included in the Statutory Prospectus only as of the actual time that form of prospectus (including a prospectus supplement) is filed with the Commission pursuant to Rule 424(b) and not retroactively.
“TIA” means the Trust Indenture Act of 1939, as amended.
“Transaction Documents” means this Agreement, the Purchase Contract and Pledge Agreement, the Units, the Notes and the Indenture, in each case as
amended or supplemented from time to time.
Section 2. Appointment and Obligations of the Remarketing Agent[s].
P-4
(a) The Corporation hereby appoints [_______] as the exclusive Remarketing Agent[s], and, subject to the terms and conditions set forth herein, [_______][severally] hereby accepts
appointment as a Remarketing Agent, for the purpose of (i) remarketing the Remarketed Notes on behalf of the holders thereof, (ii) determining, in consultation with the Corporation, in the manner provided for herein and in the Purchase
Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Termination Event has occurred prior to such date, if the Corporation elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the
Corporation pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent[s] shall use [its][their] commercially reasonable efforts to remarket the Remarketed Notes at the applicable Remarketing Price; provided that the Corporation shall determine in its sole discretion if and when to attempt an Optional Remarketing, and the Corporation may commence or postpone or cancel an Optional Remarketing in its
absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent[s] shall notify the Corporation, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury
securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent[s] in [its][their] sole discretion in accordance with the Purchase Contract and Pledge
Agreement. The Corporation will cause the Quotation Agent to notify the Remarketing Agent[s] of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If [the][any] Remarketing Agent is also
acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a
Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent[s] shall use [its][their] commercially reasonable efforts to remarket the Remarketed Notes at the applicable
Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The
Corporation has the right to postpone the Final Remarketing in the Corporation’s sole and absolute discretion on any day prior to the last three Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent[s] shall determine, in consultation with the Corporation, the rate per annum, rounded to the nearest one-thousandth
(0.001) of one percent per annum, that the Remarketed Notes should bear (the “Reset Rate”) in order for the Remarketed Notes to have an aggregate market value equal to at least the applicable
Remarketing Price and that in the reasonable discretion of the Remarketing Agent[s] will enable it to remarket all of the Remarketed Notes at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable law.
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(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent[s] [is][are] unable to Remarket all of the Remarketed Notes, at a price not
less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the
Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent and the Corporation. Whether or not there has been a Failed Remarketing
will be determined in the sole reasonable discretion of the Remarketing Agent[s]. In the event of a Failed Remarketing, the applicable interest rate on the Notes will not be reset and will continue to be the Coupon Rate set forth in the
Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent[s] shall advise, by telephone
(and promptly deliver a notice in writing thereafter):
(i) the Depository, the Purchase Contract Agent, the U.S. Indenture Trustee, the Collateral Agent, the Custodial Agent and the Corporation (and promptly deliver a
notice in writing to such Persons thereafter) of the Reset Rate with respect to the Notes and the aggregate principal amount of Remarketed Notes sold in such Remarketing;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Notes of the Reset Rate and the aggregate principal amount of Remarketed Notes such
purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant to pay the purchase price on the Remarketing
Settlement Date in same day funds against delivery of the Remarketed Notes purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Notes will not be delivered until the Remarketing Settlement Date and (if applicable)
that if such purchaser wishes to trade the Remarketed Notes that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of
any such trade to prevent failed settlement.
In the case of a Public Remarketing, the Remarketing Agent[s] shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each
purchaser a Final Prospectus in connection with such Public Remarketing.
(a) The proceeds from a Successful Remarketing (i) with respect to the Notes underlying the Pledged Applicable Ownership Interests in Notes that are components of the Corporate Units
and (ii) with respect to the Separate Notes, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(b) It is understood and agreed that the Remarketing Agent[s] shall not have any obligation whatsoever to purchase any Remarketed Notes, whether in the Remarketing or otherwise, and
shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties
under this Agreement. Neither the Corporation nor the Remarketing Agent[s] shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Notes for Remarketing.
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Section 3. Representations and Warranties of the Corporation.
The Corporation represents and warrants to the Remarketing Agent[s], (i) on and as of each date any Remarketing Materials are first distributed in connection with the Remarketing (each, a “Commencement Date”), (ii) on and as of each date any amendment to any Remarketing Materials is first distributed, (iii) on and as of each Remarketing Date and (iv) on and as of the Remarketing Settlement
Date (in each case of clauses (i) through (iv), a “Representation Date”), that:
(a) This Agreement has been duly authorized, executed and delivered by the Corporation and, assuming due authorization, execution and delivery by the Remarketing Agent[s] and the
other parties hereto, constitutes a valid and binding agreement of the Corporation, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and to general equity principles.
(b) Each of the representations and warranties of the Corporation as set forth in Section 6.1 of the Underwriting Agreement (other than those made in subsections [(b), (c) and (h)])
is true and correct as if made on each Representation Date; provided that for purposes of this Section 3(b), any reference in such sections of the Underwriting Agreement to (a) the “Registration
Statement” shall be deemed to refer to such terms as defined herein, except that in the case of a Private Remarketing each such term shall, mutatis mutandis, be deemed to refer to the Private
Placement Marketing Materials, (b) either the “Units Agreement” or “this Agreement” shall refer to this Agreement, (c) the “Offered Securities” shall refer to the Remarketed Notes and (d) either “Underwriters” or “Underwriter” shall refer to
the Remarketing Agent[s].
(c) If the Remarketing is a Public Remarketing, then:
(i) The Corporation has (A) filed with the Commission a Registration Statement, including a related prospectus or prospectuses relating to the Remarketed Notes,
covering the registration of the Remarketed Notes under the Securities Act, which has become effective and (B) in the case of a Public Remarketing in which the Corporation elects, in its absolute and sole discretion, to use an MJDS
Prospectus, filed the MJDS Prospectus and all such other documents as are required under applicable Canadian Securities Laws with applicable Canadian Securities Regulators.
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(ii) (A) [(I) At the time the Registration Statement initially became effective, (II) at the time of each amendment thereto for the purposes of complying with Section
10(a)(3) of the Securities Act (whether by post-effective amendment, incorporated report or form of prospectus), (III) at the time of the first contract of sale for the Remarketed Notes and (IV) on each Remarketing Settlement Date, the
Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the respective date in clauses (I)-(IV) set
forth above; the Corporation is not an “ineligible issuer” and is a well-known seasoned issuer, in each case as defined in Rule 405 under the Securities Act; and no notice of objection of the Commission to the use of such registration
statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Corporation.]3 No order suspending
the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Corporation or related to the offering of the Remarketed Notes
has been initiated or, to the Corporation’s knowledge, threatened by the Commission; as of the applicable effective date of the Registration Statement and any post-effective amendment thereto, the Registration Statement and any such
post-effective amendment complied and will comply in all material respects with the Securities Act and the TIA, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading; and (B) (I) on its date, (II) at the time of filing the Final Prospectus pursuant to Rule 424(b) and (III) on each Remarketing Settlement Date, the Final Prospectus
will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Corporation makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Remarketing Agent
furnished to the Corporation in writing by such Remarketing Agent through the Representatives expressly for use in the Registration Statement and the Final Prospectus and any amendment or supplement thereto, it being understood and agreed
that the only such information furnished by any Remarketing Agent consists of the information described as such in Section 7(b) hereof.
(iii) As of the Applicable Time, the General Disclosure Package did not, and at the time of the first contract of sale for the Remarketed Notes and on each
Remarketing Settlement Date, as the case may be, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that the Corporation makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information
relating to any Remarketing Agent furnished to the Corporation in writing by such Remarketing Agent through the Representatives expressly for use in such General Disclosure Package, it being understood and agreed that the only such
information furnished by any Remarketing Agent consists of the information described as such in Section 7(b) hereof. No statement of material fact included in the Statutory Prospectus or MJDS Prospectus, as applicable, has been omitted from
the General Disclosure Package and no statement of material fact included in the General Disclosure Package that is required to be included in the Final Prospectus has been omitted therefrom.
3 To be included if the Registration Statement is an automatically effective registration statement.
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(iv) Other than the Registration Statement, the Preliminary Prospectus and the Final Prospectus, the Corporation (including its agents and representatives, other than
the Remarketing Agent[s] in their capacity as such) has not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under
the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Remarketed Notes (each such communication by the Corporation or its agents and representatives (other than a communication referred to in clause (i)
below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii)
the documents listed on Annex A hereto, each electronic road show and any other written communications approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complies in all material respects with the
Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, in the case of an MJDS Prospectus, be filed with applicable Canadian
Securities Regulators (to the extent required by applicable Canadian Securities Laws) and does not conflict with the information contained in the Registration Statement or the General Disclosure Package, and, when taken together with the
Preliminary Prospectus filed prior to the first use of such Issuer Free Writing Prospectus did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading; provided that the Corporation makes no representation or warranty with respect to any statements or omissions
made in each such Issuer Free Writing Prospectus or Preliminary Prospectus in reliance upon and in conformity with information relating to any Remarketing Agent furnished to the Corporation in writing by such Remarketing Agent[s] through the
Representatives expressly for use in such Issuer Free Writing Prospectus or Preliminary Prospectus, it being understood and agreed that the only such information furnished by any Remarketing Agent consists of the information described as such
in Section 7(b) hereof.
(d) If the Remarketing is a Private Remarketing, then any preliminary offering memorandum or any communication, document or material relating to the Remarketed Notes that would, if
the Remarketing were conducted as a public offering pursuant to a registration statement filed under the Securities Act, constitute a “free writing prospectus,” as defined in Rule 405 under the Securities Act (including the documents
incorporated or deemed incorporated by reference in any such document or materials) (the “Private Placement Marketing Materials”), and any further amendments or supplements to the Private Placement
Marketing Materials, do not and will not as of their respective dates of distribution to investors (and as amended or supplemented, as of such date), contain an untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Private Placement Marketing Materials in
reliance upon and in conformity with written information furnished to the Corporation by the Remarketing Agent[s] specifically for use therein, it being understood and agreed that the only such information furnished by the Remarketing
Agent[s] consists of the information described as such in Section 7(b) hereof.
(e) The Remarketed Notes are in the form contemplated by the Indenture and have been duly authorized by the Corporation and, when issued and delivered pursuant to the Indenture to and
paid for by the purchasers thereof, will have been duly executed, authenticated, issued and delivered and will constitute valid and binding obligations of the Corporation, enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles, and be entitled to the benefits provided by the Indenture.
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(f) The Indenture has been duly authorized, executed and delivered by the Corporation, and assuming due authorization, execution and delivery by the Indenture Trustees, constitutes a
valid and legally binding agreement of the Corporation, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity principles; and the Indenture has been duly qualified under the TIA.
(g) The statements in the General Disclosure Package under the headings “[Description of Notes]”, “[Material United States Federal Income Tax Considerations]” and “[Underwriting /
Plan of Distribution]”, insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material
respects and present the information required to be shown.
Section 4. Fees.
In the event of a Successful Remarketing of the Remarketed Notes, the Corporation shall pay the Remarketing Agent[s] a remarketing fee to be agreed upon in writing by the Corporation and the
Remarketing Agent[s] prior to any such Remarketing (the “Remarketing Fee”).
Section 5. Covenants of the Issuer.
The Corporation covenants and agrees as follows:
(a) If and to the extent the offering of the Remarketed Notes in the Remarketing is required (in the view of counsel for the Corporation) to be conducted as a Public Remarketing,
then:
(i) The Corporation will file (A) any Statutory Prospectus (including the Final Prospectus) with the Commission within the time periods specified by Rule 424(b) and
Rule 430A, 430B or 430C under the Securities Act, if applicable; (B) any MJDS Prospectus with the Commission within the time periods specified by the Securities and Exchange Commission Rule 424(b) and Rule 430A, 430B or 430C under the
Securities Act and with applicable Canadian Securities Regulators; and (C) any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Securities Act and with applicable Canadian Securities Regulators to the extent
required under applicable Canadian Securities Laws;
(ii) The Corporation will file promptly all reports and any definitive proxy or information statements required to be filed by the Corporation with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Final Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Remarketed Notes; and
the Corporation will furnish copies of the Statutory Prospectus or MJDS Prospectus, as applicable, and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Remarketing Agent[s] in New York City prior to 10:00
A.M., New York City time, on the business day next succeeding the date of this Agreement in such quantities as the Representatives may reasonably request. The Corporation will pay the registration fee for this offering within the time period
required by Rule 456(b)(1) under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Remarketing Settlement Date.
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(iii) (1) If during the Prospectus Delivery Period (as defined below) (i) any event or development shall occur or condition shall exist as a result of which the Final
Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Final
Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Final Prospectus to comply with the law, the Corporation will immediately notify the Remarketing Agent[s] thereof and forthwith prepare
and file with the Commission and applicable Canadian Securities Regulators, if applicable, and furnish to the Remarketing Agent[s] and to such dealers as the Representatives may designate such amendments or supplements to the Final Prospectus
(or any document to be filed with the Commission and applicable Canadian Securities Regulators, if applicable, and incorporated by reference therein) as may be necessary so that the statements in the Final Prospectus as so amended or
supplemented (or any document to be filed with the Commission and applicable Canadian Securities Regulators, if applicable, and incorporated by reference therein) will not, in the light of the circumstances existing when the Final Prospectus
is delivered to a purchaser, be misleading or so that the Final Prospectus will comply with the law and (2) if at any time prior to the Remarketing Settlement Date (i) any event or development shall occur or condition shall exist as a result
of which the General Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the
circumstances existing when the General Disclosure Package is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the General Disclosure Package to comply the with law, the Corporation will immediately
notify the Remarketing Agent[s] thereof and forthwith prepare and file with the Commission and applicable Canadian Securities Regulators (in each case to the extent required) and furnish to the Remarketing Agent[s] and to such dealers as the
Representatives may designate such amendments or supplements to the General Disclosure Package (or any document to be filed with the Commission and applicable Canadian Securities Regulators, if applicable, and incorporated by reference
therein) as may be necessary so that the statements in the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances existing when the General Disclosure Package is delivered to a purchaser, be
misleading or so that the General Disclosure Package will comply with the law.
(iii) The Corporation will make generally available to its security holders and the Representatives as soon as practicable an earning statement (which need not be
audited) that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder.
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(b) Before making, preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus during the Prospectus Delivery Period, and before filing any
amendment or supplement to the Registration Statement or the Final Prospectus during the Prospectus Delivery Period, whether before or after the time that the Registration Statement becomes effective, the Corporation will furnish to the
Representatives and counsel for the Remarketing Agent[s] a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not make, prepare, use, authorize, approve, refer to or file any such Issuer Free
Writing Prospectus or file any such proposed amendment or supplement to which the Representatives reasonably object(s).
(c) The Corporation will deliver, without charge, to each Remarketing Agent, during the Prospectus Delivery Period, as many copies of the Final Prospectus (including all amendments
and supplements thereto and documents incorporated by reference therein and each Issuer Free Writing Prospectus) as the Representatives may reasonably request. As used herein, the term “Prospectus Delivery
Period” means such period of time after the first date of the public offering of the Remarketed Notes as in the opinion of counsel for the Remarketing Agent[s] a prospectus relating to the Remarketed Notes is required by law to be
delivered (or required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the Remarketed Notes by any Remarketing Agent or dealer.
(d) The Corporation will use its reasonable best efforts to qualify the Remarketed Notes for offer and sale under the securities or Blue Sky laws of such jurisdictions as the
Representatives shall reasonably request and will continue such qualifications in effect so long as required for distribution of the Remarketed Notes; provided that the Corporation shall not be
required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such
jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
(e) For so long as the Remarketed Notes remain outstanding, the Corporation will furnish to the Remarketing Agent, as soon as practicable after the end of each fiscal year, a copy of
its annual report to shareholders for such year; and the Corporation will furnish to the Remarketing Agent (i) as soon as available, a copy of each report and any definitive proxy statement of the Corporation filed with the Commission under
the Exchange Act or delivered to shareholders, and (ii) from time to time, such other information concerning the Corporation as the Remarketing Agent[s] may reasonably request. However, so long as the Corporation is subject to the reporting
requirements of either Section 13 or Section 15(d) of the Exchange Act or is a reporting issuer under applicable Canadian Securities Laws and is timely filing reports with the Commission on its Electronic Data Gathering, Analysis and
Retrieval system or filing any documents delivered to shareholders with applicable Canadian Securities Regulators on SEDAR, it is not required to furnish such reports or statements to the Remarketing Agent[s].
(f) The Corporation will not take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the
price of the Remarketed Notes.
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(g) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Corporation will pay or cause to be paid upon demand all costs
and expenses incident to the performance of its obligations hereunder, including without limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery of the Remarketed Notes and any taxes payable in that
connection; (ii) the costs incident to the preparation, printing and filing under the Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus, any General Disclosure Package and the Final
Prospectus (including in each case all exhibits, amendments and supplements thereto) and the distribution thereof; (iii) the fees and expenses of the Corporation’s counsel and independent accountants; (iv) the fees and expenses incurred in
connection with the registration or qualification and determination of eligibility for investment of the Remarketed Notes under the securities or blue sky laws of such jurisdictions as the Representatives may reasonably designate and the
preparation, printing and distribution of a Blue Sky Memorandum (including the related reasonably incurred fees and expenses of counsel for the Remarketing Agent[s]); (v) the cost of preparing certificates in connection with the issuance of
the Remarketed Notes; (vi) the costs and charges of the Indenture Trustees; (vii) all expenses and application fees incurred in connection with any filing with, and clearance of the offering of the Remarketed Notes by, the Financial Industry
Regulatory Authority, Inc.; (viii) any fees charged by investment rating agencies for the rating of the Remarketed Notes; (ix) all expenses incurred by the Corporation in connection with any “road show” presentation to potential investors;
and (x) all expenses and application fees related to the listing on the New York Stock Exchange or a similar nationally recognized exchange of the Remarketed Notes.
(h) The Corporation shall furnish the Remarketing Agent[s] with such information and documents as [the][any] Remarketing Agent may reasonably request in connection with the
transactions contemplated hereby, and to make reasonably available to the Remarketing Agent[s] and any accountant, attorney or other advisor retained by the Remarketing Agent[s] such information, and such access to the appropriate officers,
employees and accountants of the Corporation, that parties would customarily require, and reasonably requested by [the][any] Remarketing Agent, in connection with a due diligence investigation conducted in accordance with applicable
securities laws.
(i) Between the applicable Commencement Date and the applicable Remarketing Settlement Date, the Corporation will not, without the prior written consent of the Remarketing Agent[s]
(which consent may be withheld at the reasonable discretion of the Remarketing Agent[s]), directly or indirectly, sell, offer, contract to sell or grant any option to sell, or otherwise dispose of, any debt securities which mature more than
one year after the applicable Remarketing Settlement Date of the Corporation similar to the Remarketed Notes.
(j) During the Prospectus Delivery Period, the Corporation will furnish to the Representatives, as soon as they are available, copies of all reports or other communications
(financial or other) furnished to holders of the Remarketed Notes, and copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange or automatic quotation system; provided the
Corporation will be deemed to have furnished such reports and financial statements to the Representatives to the extent they are filed on the Commission’s Electronic Data Gathering, Analysis, and Retrieval system or with applicable Canadian
Securities Regulators on the System for Electronic Document Analysis and Retrieval.
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(k) The Corporation will prepare a final term sheet relating to the Remarketed Notes, containing only information that describes the final terms of the Remarketed Notes and otherwise
in a form consented to by the Remarketing Agent[s], and, in the case of a Public Remarketing in which the term sheet is a permitted free writing prospectus under Rule 433, will file such final term sheet with the Commission within the period
required by Rule 433(d)(5)(ii) and with applicable Canadian Securities Regulators to the extent required by and within the time period prescribed under applicable Canadian Securities Laws, following the date such final terms have been
established for the offering of the Remarketed Notes. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Corporation also consents to the use by the
Remarketing Agent[s] of a free writing prospectus that contains only (i) (A) information describing the preliminary terms of the Remarketed Notes or their offering or (B) information that describes the final terms of the Remarketed Notes or
their offering and that is included in the final term sheet of the Corporation contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information”, as defined in Rule 433, it being understood that
any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement.
Section 6. Conditions to the Remarketing Agent[’s][s’] Obligations.
The [several] obligations of [the][each] Remarketing Agent hereunder shall be subject to the following conditions:
(a) If the Remarketing is a Public Remarketing, no order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant
to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission; the Final Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under
the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and, to the extent required by applicable Canadian Securities Laws, with applicable Canadian Securities
Regulators, in each case in accordance with Section 4 hereof; and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives.
(b) Subsequent to the Commencement Date, (i) trading generally shall not have been suspended or materially limited on or by any of The New York Stock Exchange, the Nasdaq Global
Market, the Nasdaq Global Select Market or the Toronto Stock Exchange; (ii) trading of any securities issued or guaranteed by the Corporation shall not have been suspended on any exchange or in any over-the-counter market; (iii) a general
moratorium on commercial banking activities shall not have been declared by federal or New York State authorities; (iv) there shall not have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity
or crisis, either within or outside the United States; (v) no downgrading shall have occurred in the rating accorded any debt securities or preferred shares issued, or guaranteed by, the Corporation or any of its subsidiaries by any
“nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act and no such organization shall have publicly announced that it has under surveillance or review, or has changed its
outlook with respect to, its rating of any such debt securities or preferred shares issued or guaranteed by the Corporation or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading); or (vi) no
event or condition of a type described in Section 6.1(ss) of the Underwriting Agreement shall have occurred or shall exist, which event or condition is not described in the General Disclosure Package (excluding any amendment or supplement
thereto) and the Final Prospectus (excluding any amendment or supplement thereto), that, in the judgment of the Remarketing Agent[s], is material and adverse and makes it impracticable or inadvisable to market the Remarketed Notes or to
enforce contracts for the sale of the Remarketed Notes.
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(c) The Remarketing Agent[s] shall have received a certificate, dated the applicable Remarketing Settlement Date, of an executive officer of the Corporation who has specific knowledge
of the Corporation’s financial matters and is satisfactory to the Representatives certifying that: the representations and warranties of the Corporation in this Agreement are true and correct; the Corporation has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such Remarketing Settlement Date; in the case of a Public Remarketing, no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or, to the best of their knowledge and after reasonable investigation, are contemplated by the Commission; and, subsequent to the date of the most recent financial
statements in the General Disclosure Package, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business,
properties or prospects of the Corporation and its subsidiaries taken as a whole except as set forth in or contemplated by the General Disclosure Package or as described in such certificate.
(d) On each of the date of a Successful Remarketing and on the Remarketing Settlement Date, the Remarketing Agent[s] shall have received a letter addressed to the Remarketing Agent[s]
and dated each such date, in form and substance satisfactory to the Remarketing Agent[s], of the independent accountants of the Corporation or other person who have certified the consolidated financial statements of the Corporation and its
subsidiaries or such other person included or incorporated by reference in the Remarketing Materials, containing statements and information of the type ordinarily included in accountants’ “comfort letters” with respect to certain financial
information contained in the Remarketing Materials, if any.
(e) Counsel for the Corporation shall have furnished to the Remarketing Agent[s] its opinion letter with respect to the Remarketed Notes, addressed to the Remarketing Agent[s] and
dated the applicable Remarketing Settlement Date, addressing such matters with respect to the Notes as were set forth in such counsel’s opinion letter furnished pursuant to Section 7.1(f) or Section 7.2 of the Underwriting Agreement, as the
case may be, adapted as necessary to relate to the securities being remarketed hereunder and to the Remarketing Materials, or to any changed circumstances or events occurring subsequent to the date of this Agreement, such adaptations being
reasonably acceptable to counsel for the Remarketing Agent[s].
(f) Counsel for the Remarketing Agent[s] shall have furnished to the Remarketing Agent[s] its opinion with respect to the Remarketed Notes, addressed to the Remarketing Agent[s] and
dated the applicable Remarketing Settlement Date, addressing such matters with respect to the Notes as were set forth in such counsel’s opinion furnished pursuant to Section 7.1(g) of the Underwriting Agreement, adapted as necessary to relate
to the securities being remarketed hereunder and to the Remarketing Materials, or to any changed circumstances or events occurring subsequent to the date of this Agreement, such adaptations being reasonably acceptable to the Remarketing
Agent[s].
Section 7. Indemnification.
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(a) Indemnification of the Remarketing Agent[s]. The Corporation agrees to indemnify and hold harmless each Remarketing Agent, each of their
respective affiliates, directors and officers and each person, if any, who controls such Remarketing Agent, as applicable, 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, reasonably incurred legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are
incurred), joint or several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any omission or alleged omission to state therein a material
fact required to be stated therein or necessary in order to make the statements therein, not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Final Prospectus (or any amendment or
supplement thereto), any Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Securities Act, any road show as defined in Rule 433(h) under the Securities Act (a “road show”) or any General Disclosure Package (including any General Disclosure Package that has subsequently been amended), or any omission or alleged omission to state therein a material fact necessary in
order to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement
or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Remarketing Agent furnished to the Corporation in writing by such Remarketing Agent through the Representatives
expressly for use therein, it being understood and agreed that the only such information furnished by any Remarketing Agent consists of the information described as such in subsection (b) below.
(b) Indemnification of the Corporation. Each Remarketing Agent agrees, severally and not jointly, to indemnify and hold harmless the
Corporation, its directors, its officers, and each person, if any, who controls the Corporation 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 Remarketing Agent furnished to the Corporation in writing by such Remarketing Agent through the Representatives expressly for use in the Registration Statement, the Final Prospectus (or any amendment or
supplement thereto), any Issuer Free Writing Prospectus, any road show or any General Disclosure Package (including any General Disclosure Package that has subsequently been amended), it being understood and agreed upon that the only such
information furnished by any Remarketing Agent consists of the following information in the Final Prospectus furnished on behalf of each Remarketing Agent: the concession figure appearing in the first sentence of the third paragraph under the
caption “Underwriting” and the description of market making activities contained in the twelfth and thirteenth paragraphs under the caption “Underwriting.”
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(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be
brought or asserted against any person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such person (the “Indemnified Person”) shall promptly notify the
person against whom such indemnification may be sought (the “Indemnifying Person”) in writing; provided that the failure to notify the Indemnifying Person shall
not relieve it from any liability that it may have under paragraph (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided,
further, that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b) above. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the
Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person in such proceeding and shall pay the reasonably incurred fees and expenses of such counsel related to such proceeding, as incurred. In any such
proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person
shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded
that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood and agreed that the Indemnifying Person
shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such
fees and expenses shall be paid or reimbursed as they are incurred. Any such separate firm for any Remarketing Agent, its respective affiliates, directors and officers and any control persons of such Remarketing Agent shall be designated in
writing by [ ] and any such separate firm for the Corporation, its directors and officers and any control persons of the Corporation shall be designated in writing by the Corporation. 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. In its initial request to the Indemnifying Person, the
Indemnified Person shall make specific reference to Section 7(c) of this agreement and indicate the need for the Indemnifying Party to reply within 30 days or otherwise the Indemnified Person may enter into such settlement without the consent
of the Indemnifying Person. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a
party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified
Person, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
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(d) Contribution. If the indemnification provided for in paragraph (a) or (b) above is unavailable to an Indemnified Person or insufficient
in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party, on the one hand, and the indemnified party on the
other, from the offering of the Remarketed Notes 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 indemnifying party, on the one hand, and the indemnified party on the other, in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Corporation and the Remarketing Agent[s] shall be deemed to be in the same relative proportions as the total net proceeds from such offering (before deducting expenses)
received by the Corporation and the total underwriting discounts and commissions received by the Remarketing Agent[s]. The relative fault of the indemnifying party, on the one hand, and the indemnified party 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 indemnifying party or by the
indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(e) Limitation on Liability. The Corporation and the Remarketing Agent[s] agree that it would not be just and equitable if contribution
pursuant to paragraph (d) above were determined by pro rata allocation (even if the Remarketing Agent[s] were treated as one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed
to include, subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of paragraphs (d) and (e), in no event shall
[the][any] Remarketing Agent[’s][s’] be required to contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by such Remarketing Agent with respect to the offering of the Remarketed
Notes exceeds the amount of any damages that such Remarketing Agent 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 Remarketing Agent[’s][s’] obligations to contribute pursuant to
paragraphs (d) and (e) are several in proportion to their respective purchase obligations hereunder and not joint.
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(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any Indemnified Person at law or in equity.
Section 8. Resignation and Removal of the Remarketing Agent[s].
[The][Any] Remarketing Agent may, upon 30 days’ prior written notice, resign and be discharged from its duties and obligations hereunder, and the Corporation may remove [the][any] Remarketing
Agent by written notice at any time, in the case of a resignation, delivered to the Corporation and the Purchase Contract Agent and, in the case of a removal, delivered to the Remarketing Agent[s] and the Purchase Contract Agent; provided,
however, that [no][if after giving effect to a resignation or removal there will be no remaining Remarketing Agents] such resignation [nor any such][or] removal shall [not] become effective until the Corporation shall have appointed at
least one nationally recognized broker-dealer as a successor Remarketing Agent[s] and such successor Remarketing Agent[s] shall have entered into a remarketing agreement with the Corporation, in which it shall have agreed to conduct the
Remarketing in accordance with the Purchase Contract and Pledge Agreement in all material respects.
In any such case, the Corporation will use commercially reasonable efforts to appoint a successor Remarketing Agent[s] and enter into such a remarketing agreement with such person as soon as
reasonably practicable.
Section 9. Dealing in Securities.
[Each][The] Remarketing Agent, when acting as [the][a] Remarketing Agent or in its individual or any other capacity, may, to the extent permitted by law, buy, sell, hold and deal in any of
the Remarketed Notes, Corporate Units, Treasury Units or any of the securities of the Corporation (collectively, the “Securities”), but shall not be obligated to purchase any of the Remarketed Notes for
its own account. [Each][The] Remarketing Agent may exercise any vote or join in any action which any beneficial owner of such Securities may be entitled to exercise or take pursuant to the Indenture with like effect as if it did not act in
any capacity hereunder.
Section 10. Remarketing Agent[’s][s’] Performance; Duty of Care.
The duties and obligations of the Remarketing Agent[s] shall be determined solely by the express provisions of the Transaction Documents. No implied covenants or obligations of or against
[the][any] Remarketing Agent shall be read into any of the Transaction Documents. In the absence of bad faith, willful misconduct or gross negligence on the part of [the][a] Remarketing Agent, [the][such] Remarketing Agent may conclusively
rely upon any document furnished to it, as to the truth of the statements expressed in any of such documents. The Remarketing Agent[s] shall be protected in acting upon any document or communication reasonably believed by it to have been
signed, presented or made by the proper party or parties. The Remarketing Agent[s] shall have no obligation to determine whether there is any limitation under applicable law on the Reset Rate on the Notes or, if there is any such limitation,
the maximum permissible Reset Rate on the Notes, and [it][the Remarketing Agents] shall rely solely upon written notice from the Corporation (which the Corporation agrees to provide prior to the third Business Day before the applicable
Remarketing Date) as to whether or not there is any such limitation and, if so, the maximum permissible Reset Rate. [The][No] Remarketing Agent, acting under this Agreement, shall incur [no][any] liability to the Corporation or to any holder
of Remarketed Notes in its individual capacity or as Remarketing Agent for any action or failure to act, on its part in connection with a Remarketing or otherwise, except if such liability is (a) judicially determined to have resulted from
its failure to comply with the terms of this Agreement or bad faith, gross negligence or willful misconduct on its part or (b) determined pursuant to Section 7 of this Agreement. The provisions of this Section 10 shall survive the termination
of this Agreement and shall survive the resignation or removal of [the][any] Remarketing Agent pursuant to this Agreement.
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Section 11. Termination.
This Agreement shall automatically terminate (a) as to [the][any] Remarketing Agent on the effective date of the resignation or removal of [the][such] Remarketing Agent pursuant to Section 8
of this Agreement and (b) on the earlier of (i) the occurrence of a Termination Event and (ii) the Business Day immediately following the Purchase Contract Settlement Date. Notwithstanding any termination of this Agreement, in the event there
has been a Successful Remarketing, the obligations set forth in Section 4 hereof shall survive and remain in full force and effect until all amounts payable under said Section 4 hereof shall have been paid in full.
Section 12. Reimbursement of Remarketing Agent[’s][s’] Expenses.
If this Agreement shall be terminated pursuant to Section 11 hereof, then the Corporation shall not then be under any liability to [the][any] Remarketing Agent except as provided in
Sections 5(g) and 7 hereof; but, if for any other reason the settlement of the Remarketed Notes does not occur in connection with a Successful Remarketing, the Corporation will reimburse the Remarketing Agent[s] for all out-of-pocket
expenses, including fees and disbursements of counsel, reasonably incurred by the Remarketing Agent[s] in making preparations for the settlement of the Remarketed Notes, but the Corporation shall then be under no further liability to the
Remarketing Agent[s] with respect to such failed settlement of the Remarketed Notes except as provided in Sections 5(g) and 7 hereof.
Section 13. No Fiduciary Duty.
The Corporation acknowledges and agrees that:
(a) No Other Relationship. The Remarketing Agent[s] [has][have] been retained solely to act in the capacity as set forth in Section 2 hereof
and that no fiduciary, advisory or agency relationship between the Corporation and the Remarketing Agent[s] has been created in respect of any of the transactions contemplated by this Agreement or the Final Prospectus, irrespective of whether
[the][any] Remarketing Agent[s] [has][have] advised or is advising the Corporation on other matters;
(b) Arms’ Length Negotiations. The price of the Remarketing Notes set forth in the Final Prospectus was established by the Corporation
following discussions and arms’-length negotiations with [the][each] Remarketing Agent and the Corporation is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated
by this Agreement;
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(c) Absence of Obligation to Disclose. The Corporation has been advised that [the][each] Remarketing Agent and its affiliates are engaged in
a broad range of transactions which may involve interests that differ from those of the Corporation and that [the][such] Remarketing Agent has no obligation to disclose such interests and transactions to the Corporation by virtue of any
fiduciary, advisory or agency relationship; and
(d) Waiver. The Corporation waives, to the fullest extent permitted by law, any claims it may have against the Remarketing Agent[s] for breach
of fiduciary duty or alleged breach of fiduciary duty and agrees that [the Remarketing Agent shall have no liability][no Remarketing Agent shall have any liability] (whether direct or indirect) to the Corporation in respect of such a
fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Corporation, including shareholders, employees or creditors of the Corporation.
Section 14. Notices.
All statements, requests, notices and agreements hereunder shall be in writing, and:
(a) if to the Remarketing Agent[s], shall be delivered or sent by mail or facsimile transmission to:
[_______]
with a copy to:
[_______]
(b) if to the Corporation, shall be delivered or sent by mail or facsimile transmission to:
Algonquin Power & Utilities Corp.
354 Davis Road
Oakville, Ontario L6J 2X1
Attention: Ms. Jennifer Tindale
with a copy (which shall not constitute notice) to: [email protected]
354 Davis Road
Oakville, Ontario L6J 2X1
Attention: Ms. Jennifer Tindale
with a copy (which shall not constitute notice) to: [email protected]
with a copy to:
Gibson, Dunn & Crutcher LLP
200 Park Ave, 47th Floor
New York, NY 10166
Telephone: 212-351-2626
Telephone: 212-351-2626
Attention: Mr. John T. Gaffney
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(c) if to the Purchase Contract Agent, shall be delivered or sent by mail or facsimile transmission to:
The Bank of New York Mellon Trust Company, N.A.
4655 Salisbury Road, Suite 300
Jacksonville, FL 32256
Attention: Corporate Trust Administration
Any such statements, requests, notices or agreements shall take effect at the time of receipt thereof.
Section 15. Persons Entitled to Benefit of Agreement.
This Agreement shall inure to the benefit of and be binding upon each party hereto and its respective successors. This Agreement and the terms and provisions hereof are for the sole benefit
of only those persons, except that (x) the representations, warranties, indemnities and agreements of the Corporation contained in this Agreement shall also be deemed to be for the benefit of [the][each] Remarketing Agent and the person or
persons, if any, who control [the][such] Remarketing Agent within the meaning of Section 15 of the Securities Act and (y) the indemnity agreement of the Remarketing Agent[s] contained in Section 7 of this Agreement shall be deemed to be for
the benefit of the Corporation’s directors and officers who sign the Registration Statement, if any, and any person controlling the Corporation within the meaning of Section 15 of the Securities Act. Nothing contained in this Agreement is
intended or shall be construed to give any person, other than the persons referred to herein, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein.
Section 16. Survival.
The respective agreements, representations, warranties, indemnities and other statements of the Corporation or its officers and the Remarketing Agent[s] set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of the Remarketing Agent[s], the Corporation or any of the indemnified persons referred to in Section 7 hereof, and will survive delivery of
the Remarketed Notes. The provisions of Sections 7, 10 and 12 hereof shall survive the resignation or removal of [the][any] Remarketing Agent pursuant to this Agreement or the termination and cancellation of this Agreement.
Section 17. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 18. Judicial Proceedings.
The Corporation hereby submits to the exclusive jurisdiction of the U.S. federal and New York state courts in the Borough of Manhattan in The City of New York in any suit or proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby. The Corporation and each Remarketing Agent waives any objection which it may now or hereafter have to the laying of venue of any such suit or proceeding in
such courts. The Corporation and each Remarketing Agent agrees that final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon the Corporation or such Remarketing Agent[s], as applicable,
and may be enforced in any court to the jurisdiction of which the Corporation or such Remarketing Agent[s], as applicable, is subject by a suit upon such judgment. The Corporation irrevocably appoints CT Corporation as its agent to receive
service of process or other legal summons for purposes of any such suit, action or proceeding that may be instituted in any state or federal court in the City and County of New York.
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Section 19. Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic
Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be
valid and effective for all purposes.
Section 20. Headings.
The headings herein are inserted for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
Section 21. Severability.
If any provision of this Agreement shall be held or deemed to be or shall, in fact, be invalid, inoperative or unenforceable as applied in any particular case in any or all jurisdictions
because it conflicts with any provisions of any constitution, statute, rule or public policy or for any other reason, then, to the extent permitted by law, such circumstances shall not have the effect of rendering the provision in question
invalid, inoperative or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provision or provisions of this Agreement invalid, inoperative or unenforceable to any extent whatsoever.
Section 22. Amendments.
This Agreement may be amended by an instrument in writing signed by the parties hereto. Each of the Corporation and the Purchase Contract Agent agrees that it will not enter into, cause or
permit any amendment or modification of the Transaction Documents or any other instruments or agreements relating to the Applicable Ownership Interests in Notes, the Notes or the Corporate Units that would in any way materially adversely
affect the rights, duties and obligations of [the][any] Remarketing Agent, without the prior written consent of [the][such] Remarketing Agent.
Section 23. Successors and Assigns.
Except in the case of a succession pursuant to the terms of the Purchase Contract and Pledge Agreement, the rights and obligations of the Corporation hereunder may not be assigned or
delegated to any other Person without the prior written consent of the Remarketing Agent[s]. The rights and obligations of [the][such] Remarketing Agent hereunder may not be assigned or delegated to any other Person (other than an affiliate
of [the][such] Remarketing Agent) without the prior written consent of the Corporation.
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Section 24. Rights of the Purchase Contract Agent.
Notwithstanding any other provisions of this Agreement, the Purchase Contract Agent shall be entitled to all the rights, protections, immunities and privileges granted to the Purchase
Contract Agent in the Purchase Contract and Pledge Agreement.
[Signatures on the following page]
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If the foregoing correctly sets forth the agreement by and among the Corporation, the Remarketing Agent[s], The Bank of New York Mellon Trust Company, N.A., not individually but solely as
Purchase Contract Agent and as attorney-in-fact of the Holders of the Purchase Contracts, please indicate your acceptance in the space provided for that purpose below.
Very truly yours
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ALGONQUIN POWER & UTILITIES CORP.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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CONFIRMED AND ACCEPTED:
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[_______]
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as [a] Remarketing Agent | ||
By:
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Name:
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Title:
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
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as Purchase Contract Agent and attorney-in-fact of the Holders of the Purchase Contracts | ||
By:
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Name:
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Title:
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