Exhibit 7.2
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXXX XXXX XX XXXXXX
TO
JPMORGAN CHASE BANK
Trustee
--------------
INDENTURE
Dated as of _______________, 2003
--------------
SUBORDINATED DEBT SECURITIES
(SUBORDINATED INDEBTEDNESS)
================================================================================
TABLE OF CONTENTS
Page
----
PARTIES.....................................................................................................1
RECITALS OF THE BANK........................................................................................1
ARTICLE ONE
Definitions and Other Provisions of General Application.....................................................1
Section 101. Definitions...............................................................................1
Section 102. Compliance Certificates and Opinions......................................................8
Section 103. Form of Documents Delivered to Trustee....................................................8
Section 104. Acts of Holders; Record Dates.............................................................9
Section 105. Notices, Etc., to Trustee and Bank.......................................................11
Section 106. Notice to Holders; Waiver................................................................11
Section 107. Conflict with Trust Indenture Act........................................................11
Section 108. Effect of Headings and Table of Contents.................................................11
Section 109. Successors and Assigns...................................................................12
Section 110. Separability Clause......................................................................12
Section 111. Benefits of Indenture....................................................................12
Section 112. Governing Law............................................................................12
Section 113. Legal Holidays...........................................................................12
ARTICLE TWO
Security Forms.............................................................................................12
Section 201. Forms Generally..........................................................................12
Section 202. Form of Face of Security.................................................................13
Section 203. Form of Reverse of Security..............................................................15
Section 204. Form of Legend for Global Securities.....................................................18
Section 205. Form of Trustee's Certificate of Authentication..........................................19
ARTICLE THREE
The Securities.............................................................................................19
Section 301. Amount Unlimited; Issuable in Series.....................................................19
Section 302. Denominations............................................................................22
Section 303. Execution, Authentication, Delivery and Dating...........................................22
Section 304. Temporary Securities.....................................................................23
Section 305. Registration, Registration of Transfer and Exchange......................................24
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.........................................25
Section 307. Payment of Interest; Interest Rights Preserved...........................................26
Section 308. Persons Deemed Owners....................................................................27
Section 309. Cancellation.............................................................................27
Section 310. Computation of Interest..................................................................27
Section 311. CUSIP Numbers............................................................................28
Section 312. Original Issue Discount..................................................................28
i
ARTICLE FOUR
Page
----
Satisfaction and Discharge.................................................................................28
Section 401. Satisfaction and Discharge of Indenture..................................................28
Section 402. Application of Trust Money...............................................................29
ARTICLE FIVE
Remedies...................................................................................................29
Section 501. Events of Default........................................................................29
Section 502. Acceleration of Maturity; Rescission and Annulment.......................................30
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee..........................31
Section 504. Trustee May File Proofs of Claim.........................................................31
Section 505. Trustee May Enforce Claims Without Possession of Securities..............................32
Section 506. Application of Money Collected...........................................................32
Section 507. Limitation on Suits......................................................................32
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest................33
Section 509. Restoration of Rights and Remedies.......................................................33
Section 510. Rights and Remedies Cumulative...........................................................33
Section 511. Delay or Omission Not Waiver.............................................................33
Section 512. Control by Holders.......................................................................34
Section 513. Waiver of Past Defaults..................................................................34
Section 514. Undertaking for Costs....................................................................34
Section 515. Waiver of Usury, Stay or Extension Laws..................................................34
ARTICLE SIX
The Trustee................................................................................................35
Section 601. Certain Duties and Responsibilities......................................................35
Section 602. Notice of Defaults.......................................................................35
Section 603. Certain Rights of Trustee................................................................35
Section 604. Not Responsible for Recitals or Issuance of Securities...................................36
Section 605. May Hold Securities......................................................................37
Section 606. Money Held in Trust......................................................................37
Section 607. Compensation and Reimbursement...........................................................37
Section 608. Conflicting Interests....................................................................38
Section 609. Corporate Trustee Required; Eligibility..................................................38
Section 610. Resignation and Removal; Appointment of Successor........................................38
Section 611. Acceptance of Appointment by Successor...................................................39
Section 612. Merger, Conversion, Consolidation or Succession to Business..............................40
Section 613. Preferential Collection of Claims Against Bank...........................................41
Section 614. Appointment of Authenticating Agent......................................................41
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Bank.............................................................42
Section 701. Bank to Furnish Trustee Names and Addresses of Holders...................................42
Section 702. Preservation of Information; Communications to Holders...................................43
Section 703. Reports by Trustee.......................................................................43
ii
Page
----
Section 704. Reports by Bank..........................................................................43
ARTICLE EIGHT
Consolidation, Amalgamation, Merger, Conveyance, Transfer or Lease........................................44
Section 801. Bank May Consolidate, Etc., Only on Certain Terms........................................44
Section 802. Successor Substituted....................................................................44
ARTICLE NINE
Supplemental Indentures....................................................................................45
Section 901. Supplemental Indentures Without Consent of Holders.......................................45
Section 902. Supplemental Indentures With Consent of Holders..........................................46
Section 903. Execution of Supplemental Indentures.....................................................47
Section 904. Effect of Supplemental Indentures........................................................47
Section 905. Conformity with Trust Indenture Act......................................................47
Section 906. Reference in Securities to Supplemental Indentures.......................................47
ARTICLE TEN
Covenants..................................................................................................47
Section 1001. Payment of Principal, Premium and Interest...............................................47
Section 1002. Maintenance of Office or Agency..........................................................48
Section 1003. Money for Securities Payments to Be Held in Trust........................................48
Section 1004. Statement by Officers as to Default......................................................49
Section 1005. Existence................................................................................49
Section 1006. Waiver of Certain Covenants..............................................................49
ARTICLE ELEVEN
Redemption of Securities...................................................................................50
Section 1101. Applicability of Article.................................................................50
Section 1102. Election to Redeem; Notice to Trustee....................................................50
Section 1103. Selection by Trustee of Securities to Be Redeemed........................................50
Section 1104. Notice of Redemption.....................................................................51
Section 1105. Deposit of Redemption Price..............................................................51
Section 1106. Securities Payable on Redemption Date....................................................52
Section 1107. Securities Redeemed in Part..............................................................52
ARTICLE TWELVE
Purchase or repayment of securities by the Bank at the option of the holder................................52
Section 1201. Applicability of Article.................................................................52
Section 1202. Notice of Repayment Date.................................................................53
Section 1203. Deposit of Repayment Price...............................................................53
Section 1204. Securities Payable on Repayment Date.....................................................53
iii
Page
----
Section 1205. Securities Repaid in Part................................................................54
ARTICLE THIRTEEN
Sinking Funds..............................................................................................54
Section 1301. Applicability of Article.................................................................54
Section 1302. Satisfaction of Sinking Fund Payments with Securities....................................54
Section 1303. Redemption of Securities for Sinking Fund................................................55
ARTICLE FOURTEEN
Defeasance and Covenant Defeasance.........................................................................55
Section 1401. Bank's Option to Effect Defeasance or Covenant Defeasance................................55
Section 1402. Defeasance and Discharge.................................................................55
Section 1403. Covenant Defeasance......................................................................56
Section 1404. Conditions to Defeasance or Covenant Defeasance..........................................56
Section 1405. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Miscellaneous Provisions..........................................................58
Section 1406. Reinstatement............................................................................58
ARTICLE FIFTEEN
Subordination of securities................................................................................59
Section 1501. Securities Subordinate to Deposit Liabilities and Other Indebtedness.....................59
Section 1502. Further Assurances of Subordination......................................................60
Section 1503. Reliance on Judicial Order or Certificate of Liquidating Agent...........................60
Section 1504. Trustee's Compensation Not Prejudiced....................................................61
ARTICLE SIXTEEN
Miscellaneous Provisions...................................................................................61
Section 1601. Consent to Jurisdiction and Service of Process...........................................61
Section 1602. Indenture and Securities Solely Corporate Obligations....................................62
Section 1603. Execution in Counterparts................................................................62
iv
INDENTURE, dated as of _____________, 2003, between Royal Bank of
Canada, a Canadian chartered bank (herein called the "BANK"), having its
corporate headquarters located at Royal Bank Plaza, 000 Xxx Xxxxxx, Xxxxxxx,
Xxxxxxx, Xxxxxx X0X 0X0 and its head office located at 0 Xxxxx Xxxxx Xxxxx,
Xxxxxxxx, Xxxxxx, Xxxxxx X0X 0X0, and JPMorgan Chase Bank, a New York banking
corporation, as Trustee (herein called the "TRUSTEE").
RECITALS OF THE BANK
The Bank has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated indebtedness (herein called the "Securities"), to be issued in one
or more series as provided in this Indenture.
All things necessary to make this Indenture a valid agreement of the
Bank, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in Canada, including the accounting requirements
of the Superintendent of Financial Institutions Canada, and, except as
otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Indenture;
(5) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision; and
(6) all references to dollars and $ shall mean U.S. dollars
unless otherwise indicated.
"ACT", when used with respect to any Holder, has the meaning specified
in Section 104.
"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.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"BANK" means the Person named as the "Bank" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Bank" shall mean such
successor Person.
"BANK REQUEST" or "BANK ORDER" means a written request or order signed
in the name of the Bank by any one of its President and Chief Executive Officer,
Vice-Chairman, Senior Executive Vice-Presidents, Executive Vice-Presidents or
Senior Vice-Presidents, or any two Vice-Presidents acting together, and
delivered to the Trustee.
"BOARD OF DIRECTORS" means either the board of directors of the Bank
or any duly authorized committee of that board.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Bank to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"COMMISSION" means the Securities and Exchange Commission, 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 at such time.
"CORPORATE TRUST OFFICE" means the principal corporate trust office of
the Trustee in New York, New York at which at any particular time its corporate
trust business shall be administered.
2
"CORPORATION" means a corporation, association, company, limited
liability company, joint-stock company, business trust or other entity.
"COVENANT DEFEASANCE" has the meaning specified in Section 1403.
"DEBENTURES UNDER THE 0000 XXXXXXXXX" means the debentures of the Bank
issued and certified under the trust indenture made as of October 1, 1984 and
indentures supplemental to such trust indenture between the Bank and Montreal
Trust Company of Canada and subsequently assigned to Computershare Trust Company
of Canada and for the time being outstanding.
"DEBENTURES UNDER THE 1986 INDENTURE" means the debentures of the Bank
issued and certified under the trust indenture made as of June 6, 1986 and
indentures supplemental to such trust indenture between the Bank and Montreal
Trust Company of Canada and subsequently assigned to Computershare Trust Company
of Canada and for the time being outstanding.
"DEBENTURES UNDER THE 1994 INDENTURE" means the debentures of the Bank
issued and certified under the trust indenture made as of November 14, 1994 and
indentures supplemental to such trust indenture between the Bank and Montreal
Trust Company of Canada and subsequently assigned to Computershare Trust Company
of Canada and for the time being outstanding.
"DEBENTURES UNDER THE 1997 INDENTURE" means the debentures of the Bank
issued and certified under the trust indenture made as of May 21, 1997 and
indentures supplemental to such trust indenture between the Bank and Montreal
Trust Company of Canada and subsequently assigned to Computershare Trust Company
of Canada and for the time being outstanding.
"DEBENTURES UNDER THE PROGRAMME FOR THE ISSUANCE OF NOTES" means the
debentures of the Bank issued under the Programme for the Issuance of Notes
originally approved by the Board of Directors on July 8, 1997 as amended or
modified from time to time.
"DEBENTURES EVIDENCING THE BANK'S US$300 MILLION AGGREGATE PRINCIPAL
AMOUNT OF SUBORDINATED NOTES DUE OCTOBER 24, 2011" means the debentures of the
Bank issued under the Fiscal Agency Agreement between the Bank and Chase
Manhattan Bank dated November 25, 1996.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DEFEASANCE" has the meaning specified in Section 1402.
"DEPOSITARY" means, with respect to Securities of any series issuable
in whole or in part in the form of one or more Global Securities, any Person
that is designated to act as Depositary for such Securities as contemplated by
Section 301.
"EVENT OF DEFAULT" has the meaning specified in Section 501.
"EXCHANGE ACT" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"EXPIRATION DATE" has the meaning specified in Section 104.
3
"GLOBAL SECURITY" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 204 (or such
legend as may be specified as contemplated by Section 301 for such Securities).
"HOLDER" means a Person in whose name a Security is registered in the
Security Register.
"INDEBTEDNESS" at any time means:
(1) the deposit liabilities of the Bank at such time; and
(2) all other liabilities and obligations of the Bank to third
parties (other than fines or penalties which pursuant to the Bank Act
(Canada) are a last charge on the assets of a bank in the case of
insolvency of such bank and obligations to shareholders of the Bank,
as such) which would entitle such third parties to participate in a
distribution of the Bank's assets in the event of the insolvency or
winding-up of the Bank.
"INDENTURE" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"INTEREST", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"INTEREST PAYMENT DATE", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"MATURITY", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, exercise of a Holder's option
to require the Bank to purchase or repay the Security or otherwise.
"OFFICERS' CERTIFICATE" means a certificate signed by the Bank's Chief
Executive Officer or Vice-Chairman and Chief Financial Officer.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel for the Bank, and who shall be acceptable to the Trustee.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"OUTSTANDING", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
4
(1) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Bank) in trust or set aside and segregated
in trust by the Bank (if the Bank shall act as its own Paying Agent)
for the Holders of such Securities; provided that, if such Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(3) Securities as to which Defeasance has been effected
pursuant to Section 1402; and
(4) Securities that have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
protected purchaser in whose hands such Securities are valid
obligations of the Bank;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding shall be the amount of
the principal thereof that would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated
in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in
the manner provided as contemplated by Section 301, of the principal amount of
such Security (or, in the case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such Clause), and (D) Securities
owned by the Bank or any other obligor upon the Securities or any Affiliate of
the Bank or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent, waiver or other action, only Securities that a Responsible Officer of
the Trustee knows to be so owned shall be so disregarded.
"PAYING AGENT" means any Person authorized by the Bank to pay the
principal of or any premium or interest on any Securities on behalf of the Bank
and may be the Bank in such capacity.
"PERSON" means any individual, corporation, limited liability company,
partnership, joint venture, trust, unincorporated organization or government or
any agency or political subdivision thereof.
"PLACE OF PAYMENT", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
5
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"RECORD DATE" means any Regular Record Date or Special Record Date.
"REDEMPTION DATE", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"REDEMPTION PRICE", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"REPAYMENT DATE", when used with respect to Securities of any series
the terms of which provide each Holder an option to require the Bank to purchase
or repay the Securities held by such Holder, means the date, if any, fixed for
such purchase or repayment pursuant to this Indenture.
"REPAYMENT PRICE", when used with respect to Securities of any series
the terms of which provide each Holder an option to require the Bank to purchase
or repay the Securities held by such Holder, means the price, if any, at which
such purchase or repayment is to occur pursuant to this Indenture.
"RESPONSIBLE OFFICER" when used with respect to the Trustee, means any
officer of the Trustee with direct responsibility for administration of this
Indenture, and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of such person's
knowledge of and familiarity with the particular subject.
"SECURITY" has the meaning stated in the first recital of this
Indenture and more particularly means any Security authenticated and delivered
under this Indenture.
"SECURITIES ACT" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 305.
"SENIOR INDEBTEDNESS" means any Indebtedness other than Subordinated
Indebtedness, including any Indebtedness to which Securities are expressly
subordinated to pursuant to Article Fifteen.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"STATED MATURITY", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on
6
which the principal of such Security or such installment of principal or
interest is due and payable.
"SUBORDINATED INDEBTEDNESS" at any time means:
(1) the liability of the Bank in respect of the principal of
and premium, if any, and interest on the Securities, the debentures
under the 1984 Indenture, the debentures under the 1986 Indenture, the
debentures under the 1994 Indenture, the debentures under the 1997
Indenture, the debentures under the Programme for the Issuance of
Notes and the debentures evidencing the Bank's US$300 million
aggregate principal amount of Subordinated Notes due October 24, 2011;
(2) any Indebtedness which ranks equally with and not prior
to the Securities, the debentures under the 1984 Indenture, the
debentures under the 1986 Indenture, the debentures under the 1994
Indenture, the debentures under the 1997 Indenture, the debentures
under the Programme for the Issuance of Notes or the debentures
evidencing the Bank's US$300 million aggregate principal amount of
Subordinated Notes due October 24, 2011, in right of payment in the
event of the insolvency or winding-up of the Bank and which, pursuant
to the terms of the instrument evidencing or creating the same, is
expressed to be subordinate in right of payment to all Indebtedness to
which the Securities are subordinate in right of payment to at least
the same extent as the Securities are subordinate thereto under the
provisions of Article Fifteen; and
(3) any Indebtedness which ranks subordinate to and not
equally with or prior to the Securities, the debentures under the 1984
Indenture, the debentures under the 1986 Indenture, the debentures
under the 1994 Indenture, the debentures under the 1997 Indenture, the
debentures under the Programme for the Issuance of Notes or the
debentures evidencing the Bank's US$300 million aggregate principal
amount of Subordinated Notes due October 24, 2011, in right of payment
in the event of the insolvency or winding-up of the Bank and which,
pursuant to the terms of the instrument evidencing or creating the
same, is expressed to be subordinate in right of payment to all
Indebtedness to which the Securities are subordinate in right of
payment to at least the same extent as the Securities are subordinate
thereto under the provisions of Article Fifteen.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"U.S. GOVERNMENT OBLIGATION" has the meaning specified in Section 1404.
7
"VICE-PRESIDENT", when used with respect to the Bank or the Trustee,
means any vice-president, whether or not designated by a number or a word or
words added before or after the title "vice-president."
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Bank to the Trustee to take any
action under any provision of this Indenture, the Bank shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Bank, or an Opinion
of Counsel, if to be given by counsel, and shall comply with the requirements of
the Trust Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for certificates
provided for in Section 1004) shall include,
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
such individual 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
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Bank may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Bank stating that the
information with respect to such factual matters is in the possession of the
Bank, 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.
8
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given, made 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 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 Trustee and, where it is hereby expressly required, to the Bank. 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
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Bank, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
For the purposes of this Indenture, the ownership of Securities shall
be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Bank in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Bank may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that the
Bank may not set a record date for, and the provisions of this paragraph shall
not apply with respect to, the giving or making of any notice, declaration,
request or direction referred to in the next paragraph. If any record date is
set pursuant to this paragraph, the Holders of Outstanding Securities of the
relevant series on such record date, and no other Holders, shall be entitled to
take the relevant action, whether or not such Holders remain Holders after such
record date; provided that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities of such series on such record date.
Nothing in this paragraph shall be construed to prevent the Bank from setting a
new record date for any action for which a record date has previously been set
pursuant
9
to this paragraph (whereupon the record date previously set shall automatically
and with no action by any Person be cancelled and of no effect), and nothing in
this paragraph shall be construed to render ineffective any action taken by
Holders of the requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after any record date
is set pursuant to this paragraph, the Bank, 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 Trustee in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any declaration of acceleration referred to in
Section 502, (ii) any request to institute proceedings referred to in Section
507(2) or (iii) any direction referred to in Section 512, in each case with
respect to Securities of such series. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities of such series on such record
date, and no other Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders remain Holders
after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of Outstanding Securities of such series on
such record date. Nothing in this paragraph shall be construed to prevent the
Trustee 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 of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Trustee,
at the Bank's expense, shall cause notice of such record date, the proposed
action by Holders and the applicable Expiration Date to be given to the Bank in
writing and to each Holder of Securities of the relevant series in the manner
set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto that sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto that set such record date 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.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
10
Section 105. Notices, Etc., to Trustee and Bank.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Bank shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
or
(2) the Bank by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Bank addressed to it at the address of its corporate
headquarters specified in the preamble to this Indenture, Attention
Executive Vice-President, Corporate Treasury, or at any other address
previously furnished in writing to the Trustee by the Bank.
Section 106. Notice to Holders; Waiver.
Where this Indenture 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 his or her address as it appears in the Security Register, not
later than the latest date (if any), and not earlier than the earliest date (if
any), 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 Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
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 Trustee shall
constitute a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
Section 108. 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.
11
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Bank shall bind
its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the law of the State of New York, except for Sections 1501,
1502, 1503 and 1504, which shall be governed by and construed in accordance with
the laws of the Province of Ontario and the laws of Canada applicable therein.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Repayment
Date or Stated Maturity of any Security shall not be a Business Day at any Place
of Payment, then (notwithstanding any other provision of this Indenture or of
the Securities (other than a provision of any Security which specifically states
that such provision shall apply in lieu of this Section)) payment of interest or
principal (and premium, if any) need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date,
Redemption Date, Repayment Date, or at the Stated Maturity; provided, however,
that no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date, Repayment Date, or Stated Maturity, as the case
may be, to the date of such payment.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary
12
therefor or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution thereof. If the form
of Securities of any series is established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by
the Secretary or an Assistant Secretary of the Bank and delivered to the Trustee
at or prior to the delivery of the Bank Order contemplated by Section 303 for
the authentication and delivery of such Securities. If all the Securities of any
series established by action taken pursuant to a Board Resolution are not to be
issued at one time, it shall not be necessary to deliver a record of such action
at the time of issuance of each Security of such series, but an appropriate
record of such action shall be delivered at or before the time of issuance of
the first Security of such series.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
Section 202. Form of Face of Security.
[Insert any legend required by Section 204]
[Insert any legend required by the Internal Revenue Code and the Income
Tax Act (Canada) and the regulations thereunder.]
ROYAL BANK OF CANADA
[Insert title of Securities]
Subordinated Indebtedness
This security will not constitute a deposit that is insured under
the Canada Deposit Insurance Corporation Act or by the
United States Federal Deposit Insurance Corporation.
No. CUSIP No.
-------- --------
Issue Date Stated Maturity:
-------- --------
Royal Bank of Canada, a Schedule I bank under the Bank Act (Canada)
(herein called the "Bank", which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to_____, or registered assigns, the principal sum of_____Dollars on_____[if the
Security is to bear interest prior to Maturity, insert -- , and to pay interest
thereon from _____or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, [semi-annually] on_____and _____in
each year, commencing_____, at the rate of_____% per annum, until the principal
hereof is paid or made available for payment, [if applicable, insert-- ;
provided that any overdue principal, if any, premium and any overdue installment
of interest shall bear interest at the rate of_____% per annum (to the extent
that the payment of such interest shall be legally enforceable), from the dates
such amounts are due until they are paid or made available for payment, and such
interest shall be payable on demand]. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor
13
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the_____or_____(whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.]
[If the Security is not to bear interest prior to Maturity, insert --
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of_____% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert - any such] interest on this Security will be made at the office or
agency of the Bank maintained for that purpose in_____, 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 [if applicable, insert -- ; provided,
however, that at the option of the Bank payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Bank has caused this instrument to be duly
executed.
Dated:
Royal Bank of Canada
By
-------------------------
By
-------------------------
14
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Bank (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of_____, 2003 (herein called the
"Indenture," which term shall have the meaning assigned to it in such
instrument), between the Bank and JPMorgan Chase Bank, as Trustee (herein called
the "Trustee", which term includes any successor trustee under the Indenture),
and reference is hereby made to the Indenture for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Bank, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof [if applicable, insert -- ,
[initially] limited in aggregate principal amount to $_____, provided that the
Bank may, without the consent of any Holder, at any time and from time to time,
increase the initial principal amount.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
(1) on_____in any year commencing with the year_____ and ending with the
year_____through operation of the sinking fund for this series at a Redemption
Price equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert -- on or after_____,_____], as a whole or in part, at the
election of the Bank, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [if applicable, insert -- on
or before_____,_____%, and if redeemed] during the 12-month period
beginning_____of the years indicated,
Redemption Redemption
Year Price Year Price
---- ----- ---- -----
and thereafter at a Redemption Price equal to_____% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.] [(if applicable, insert -- the securities of this series are also
redeemable as set forth hereinafter.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on_____in any year
commencing with the year_____and ending with the year_____through operation of
the sinking fund for this series at the Redemption Prices for redemption through
operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below, and (2) at any time [if applicable, insert -- on
or after_____], as a whole or in part, at the election of the Bank, at the
Redemption Prices for redemption otherwise than through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table
below: If redeemed during the 12-month period beginning of the years indicated,
15
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ------------ -------------------
and thereafter at a Redemption Price equal to_____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- The sinking fund for this series provides for
the redemption on_____in each year beginning with the year_____and ending with
the year_____of [if applicable, insert -- not less than $_____("mandatory
sinking fund") and not more than] $_____aggregate principal amount of Securities
of this series. Securities of this series acquired or redeemed by the Bank
otherwise than through [if applicable, insert -- mandatory] sinking fund
payments may be credited against subsequent [if applicable, insert -- mandatory]
sinking fund payments otherwise required to be made [if applicable, insert -- ,
in the inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert reference to any other right of the Bank to
redeem a Security of this series.]
[If applicable, insert -- The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security] [or]
[certain restrictive covenants and Events of Default with respect to this
Security] [, in each case] upon compliance with certain conditions set forth in
the Indenture.]
[If applicable, insert provisions with respect to the option of Holders
to require purchase or repayment of Securities of this series by the Bank at the
option of the Holder and the issuance of Securities in lieu of Securities
purchased or repaid by the Bank at the option of the Holder.]
[If applicable, insert provisions requiring an adjustment to the
interest rate in certain circumstances.]
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payment to the prior
payment in full of all Indebtedness, other than Subordinated Indebtedness, and
this Security is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Security, by accepting the same, (a) agrees to
16
and shall be bound by such provisions, (b) authorizes and directs the Trustee on
his or her behalf to take such actions as may be necessary or appropriate to
effectuate the subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each Holder hereof, by his or
her acceptance hereof, waives all notice of the acceptance of the subordination
provisions contained herein and in the Indenture by each holder of Indebtedness,
other than Subordinated Indebtedness, whether now outstanding or hereafter
created, incurred, assumed or guaranteed, and waives reliance by each such
holder upon said provisions.
[If the Security is not an Original Issue Discount Security, insert --
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Bank's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the Bank
and the rights of the Holders of the Securities of each series to be affected
under the Indenture at any time by the Bank and the Trustee with the consent of
the Holders of a majority in principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Bank with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
17
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Bank, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
For disclosure purposes under the Interest Act (Canada), whenever in
the Securities of this series or the Indenture interest at a specified rate is
to be calculated on the basis of a period less than a calendar year, the yearly
rate of interest to which such rate is equivalent is such rate multiplied by the
actual number of days in the relevant calendar year and divided by the number of
days in such period.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Bank in any place where the principal of and any premium
and interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Bank and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series and of like
tenor, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $....... and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Bank or the Trustee may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Bank, the Trustee and any agent of the Bank or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Bank, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Section 204. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN
18
THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Section 205. Form of Trustee's Certificate of Authentication.
Subject to Section 614, each of the Trustee's certificates of
authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated: JPMorgan Chase Bank,
As Trustee
By
-----------------------------
Authorized Officer
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited.
The Securities are unsecured subordinated indebtedness of the Bank. The
Securities may be issued in one or more series. There shall be established in or
pursuant to a Board Resolution and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107
or 1303 and except for any Securities which, pursuant to Section 303,
are deemed never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest;
19
(4) the date or dates on which the principal of any Securities
of the series is payable;
(5) the rate or rates at which any Securities of the series
shall bear interest, if any, the date or dates from which any such
interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable and the Regular Record Date for any such
interest payable on any Interest Payment Date;
(6) the place or places where the principal of and any premium
and interest on any Securities of the series shall be payable, the
place or places where the Securities of such series may be presented
for registration of transfer or exchange, any restrictions that may be
applicable to any such transfer or exchange in addition to or in lieu
of those set forth herein, and the place or places where notices and
demands to or upon the Bank in respect of the Securities of such series
may be made;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which any Securities of the
series may be redeemed, in whole or in part, at the option of the Bank
and, if other than by a Board Resolution, the manner in which any
election by the Bank to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Bank to redeem or purchase
any Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of the Holder thereof and the period or
periods within which, the price or prices at which and the terms and
conditions upon which any Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Securities of the
series shall be issuable;
(10) if the amount of principal of or any premium or interest
on any Securities of the series may be determined with reference to an
index or pursuant to a formula, the manner in which such amounts shall
be determined;
(11) if other than the currency of the United States of
America, the currency, currencies or currency units in which the
principal of or any premium or interest on any Securities of the series
shall be payable and the manner of determining the equivalent thereof
in the currency of the United States of America for any purpose,
including for purposes of the definition of "Outstanding" in Section
101;
(12) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the Bank
or the Holder thereof, in one or more currencies or currency units
other than that or those in which such Securities are stated to be
payable, the currency, currencies or currency units in which the
principal of or any premium or interest on such Securities as to which
such election is made shall be payable, the periods within which and
the terms and conditions upon which such election is to be made and the
amount so payable (or the manner in which such amount shall be
determined);
20
(13) if other than the entire principal amount thereof, the
portion of the principal amount of any Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502;
(14) if the principal amount payable at the Stated Maturity of
any Securities of the series will not be determinable as of any one or
more dates prior to the Stated Maturity, the amount which shall be
deemed to be the principal amount of such Securities as of any such
date for any purpose thereunder or hereunder, including the principal
amount thereof which shall be due and payable upon any Maturity other
than the Stated Maturity or which shall be deemed to be Outstanding as
of any date prior to the Stated Maturity (or, in any such case, the
manner in which such amount deemed to be the principal amount shall be
determined);
(15) if applicable, that the Securities of the series, in
whole or any specified part, shall be defeasible pursuant to Section
1402 or Section 1403 or both such Sections and, if other than by a
Board Resolution, the manner in which any election by the Bank to
defease such Securities shall be evidenced;
(16) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective Depositaries for such
Global Securities, the form of any legend or legends which shall be
borne by any such Global Security in addition to or in lieu of that set
forth in Section 204 and any circumstances in addition to or in lieu of
those set forth in Clause (2) of the last paragraph of Section 305 in
which any such Global Security may be exchanged in whole or in part for
registered Securities, and any transfer of such Global Security in
whole or in part may be registered, in the name or names of Persons
other than the Depositary for such Global Security or a nominee thereof
and any other provisions governing exchanges or transfers of any such
Global Security;
(17) any addition to or change in the Events of Default which
applies to any Securities of the series and any change in the right of
the Trustee or the requisite Holders of such Securities to declare the
principal amount thereof due and payable pursuant to Section 502;
(18) any addition to, deletion from or change in the covenants
set forth in Article Ten which applies to Securities of the series; and
(19) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303) set
forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto. All Securities
of any one series need not be issued at one time and, unless otherwise provided
in or pursuant to the Board Resolution referred to above and (subject to Section
303) set forth, or determined in the manner provided, in the Officers'
Certificate referred to above or in any such indenture supplemental hereto with
respect to a series of Securities, additional Securities of a series may be
21
issued, at the option of the Bank, without the consent of any Holder, at any
time and from time to time.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Bank and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 302. Denominations.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Bank by its President
and Chief Executive Officer or a Vice-Chairman (or any Person designated by one
of them in writing as authorized to execute and deliver Securities), and by its
Executive Vice-President, RBC Corporate Treasury, Senior Vice-President, RBC
Corporate Treasury, Vice-President, Securitization and Term Funding (or any
Person designated by one of them in writing as authorized to execute and deliver
Securities). The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Bank shall bind the Bank,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Bank may deliver Securities of any series executed by the
Bank to the Trustee for authentication, together with a Bank Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Bank Order shall authenticate and deliver such Securities. If the form
or terms of the Securities of the series have been established by or pursuant to
one or more Board Resolutions as permitted by Sections 201 and 301, in
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
(2) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture; and
22
(3) that such Securities, when authenticated and delivered by
the Trustee and issued by the Bank in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Bank 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.
If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, including in the event that the size of a series of Outstanding Securities
is increased as contemplated by Section 301, it shall not be necessary to
deliver the Officers' Certificate otherwise required pursuant to Section 301 or
the Bank Order and Opinion of Counsel otherwise required pursuant to such
preceding paragraph at or prior to the authentication of each Security of such
series if such documents are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Bank, and the Bank shall deliver such Security
to the Trustee for cancellation as provided in Section 309, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Bank may execute, and upon Bank Order the Trustee shall authenticate and
deliver, temporary Securities that are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Bank will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Bank in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Bank shall execute and the Trustee shall
authenticate and deliver in exchange therefor one or more definitive Securities
of the same series, of any authorized denominations and of like tenor and
23
aggregate principal amount. 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 and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
The Bank shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Bank in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Bank shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series
at the office or agency of the Bank in a Place of Payment for that series, the
Bank shall execute, and the Trustee shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Securities of the
same series, of any authorized denominations and of like tenor and aggregate
principal amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Bank shall execute, and the Trustee shall
authenticate and deliver, the Securities that the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Bank, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Bank or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Bank and the Security Registrar duly executed, by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Bank or the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906, 1107 or 1303 not involving any
transfer.
If the Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Bank shall not be required (A) to issue,
register the transfer of or exchange any Securities of that series (or of that
series and specified tenor, as the case may be) during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under Section 1103 and
ending at the close of business on the day of such mailing, or (B) to register
the transfer of or exchange any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Security being redeemed in part.
24
The provisions of Clauses (1), (2), (3) and (4) below shall apply only
to Global Securities:
(1) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary designated for such
Global Security or a nominee thereof and delivered to such Depositary
or a nominee thereof or custodian therefor, and each such Global
Security shall constitute a single Security for all purposes of this
Indenture.
(2) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for registered
Securities, and no transfer of a Global Security in whole or in part
may be registered, in the name of any Person other than the Depositary
for such Global Security or a nominee thereof unless (A) such
Depositary has notified the Bank that it is unwilling or unable or no
longer permitted under applicable law to continue as Depositary for
such Global Security, (B) there shall have occurred and be continuing
an Event of Default with respect to such Global Security, (C) the Bank
so directs the Trustee by a Bank Order or (D) there shall exist such
circumstances, if any, in addition to or in lieu of the foregoing as
have been specified for this purpose as contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global
Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for a Global Security or any portion
thereof shall be registered in such names as the Depositary for such
Global Security shall direct.
(4) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Security or any portion thereof, whether pursuant to this Section,
Section 304, 306, 906, 1107 or 1303 or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global
Security, unless such Security is registered in the name of a Person
other than the Depositary for such Global Security or a nominee
thereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Bank shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Bank and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the Bank
or the Trustee that such Security has been acquired by a protected purchaser,
the Bank shall execute and the Trustee shall authenticate and deliver, in lieu
of any such destroyed, lost or stolen Security, a new Security of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Bank in its discretion may,
instead of issuing a new Security, pay such Security.
25
Upon the issuance of any new Security under this Section, the Bank may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any mutilated, destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Bank, whether or not the
mutilated, destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Bank, at its election in each case,
as provided in Clause (1) or (2) below:
(1) The Bank may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Bank shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Bank shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Bank of such Special Record Date
and, in the name and at the expense of the Bank, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record
Date therefor to be given to each Holder of Securities of such series
in the manner set forth in Section 106, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted
26
Interest shall be paid to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Bank may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Bank to the Trustee of the
proposed payment pursuant to this Clause, such manner of payment shall
be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Bank, the Trustee and any agent of the Bank or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and any premium and
(subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Bank, the Trustee nor any agent of the Bank or the Trustee shall be affected by
notice to the contrary.
Section 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Bank may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Bank may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Bank
has not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities held by the
Trustee shall be disposed of in accordance with its customary procedures.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 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. For disclosure
purposes under the Interest Act (Canada), whenever in this Indenture or any
Securities issued hereunder interest at a specified rate is to be calculated on
the basis of a period less than a calendar year, the yearly rate of interest to
which such rate is equivalent is such rate multiplied by the actual number of
days in the relevant calendar year and divided by the number of days in such
period.
27
Section 311. CUSIP Numbers.
The Bank in issuing any series of the Securities may use CUSIP numbers,
if then generally in use, and thereafter with respect to such series, the
Trustee may use such numbers in any notice of redemption with respect to such
series, 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 of
that series 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 of
that series, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Bank shall promptly notify the Trustee in writing
of any change of such CUSIP numbers.
Section 312. Original Issue Discount.
If any of the Securities is an Original Issue Discount Security, the
Bank shall file with the Trustee promptly at the end of each calendar year (i) a
written notice specifying the amount of original issue discount (including daily
rates and accrual periods) accrued on such Outstanding Original Issue Discount
Securities as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Bank Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Bank, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
mutilated, destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Bank
and thereafter repaid to the Bank or discharged from such
trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
28
(iii) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Bank,
and the Bank, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose money in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal and any premium and interest to
the date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Bank has paid or caused to be paid all other sums
payable hereunder by the Bank; and
(3) the Bank has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Bank to the Trustee under Section 607, and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Bank acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) if the Bank shall become insolvent or bankrupt or subject
to the provisions of the Winding-Up and Restructuring Act of Canada, or
go into liquidation either voluntarily or under an order of a court of
competent jurisdiction, or otherwise acknowledge its insolvency
(provided that a resolution or order for winding-up the Bank, with a
view to its consolidation, amalgamation or merger with another bank or
the
29
transfer of its assets as an entirety to such other bank, as provided
in Article Eight, shall not constitute an event of default under this
Section 501 if such last-mentioned bank shall, as a part of such
consolidation, amalgamation, merger or transfer, and, within 90 days
from the passing of the resolution or the date of the order for the
winding-up or liquidation of the Bank or within such further period of
time as may be allowed by the Trustee, comply with the conditions to
that end stated in Article Eight); or
(2) any other Event of Default provided with respect to
Securities of that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount of all the Securities
of that series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) to be due and payable immediately, by a notice
in writing to the Bank (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Bank and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Bank has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on) any
Securities of that series that have become due otherwise than
by such declaration of acceleration and any interest thereon
at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series that have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
30
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Bank covenants that if:
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof and such
default continues for a period of five days,
the Bank will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Bank (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a
31
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and any
premium and interest, respectively.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 90 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 90-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
32
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption or repayment, on the Redemption Date or
date for repayment, as the case may be) and to institute suit for the
enforcement of any such payment and such rights shall not be impaired without
the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Bank, the Trustee and the Holders shall be
restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or 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.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the 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 or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
33
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
Subject to Section 502, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences, except a default:
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series 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.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess reasonable
costs against any such party litigant, in the manner and to the extent provided
in the Trust Indenture Act; provided that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Bank.
Section 515. Waiver of Usury, Stay or Extension Laws.
The Bank 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 usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Bank (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee,
34
but will suffer and permit the execution of every such power as though no such
law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the 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 it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act. For the
purpose of this Section, the term "default" 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.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(2) any request or direction of the Bank mentioned herein
shall be sufficiently evidenced by a Bank Request or Bank Order, and
any resolution of the Board of Directors shall be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, conclusively rely upon an
Officers' Certificate;
(4) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and
35
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee security or indemnity
reasonably satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Bank, personally or by agent or
attorney during the Bank's normal business hours; provided, however,
that the Trustee shall cause its agents and attorneys to hold in
confidence all such information except to the extent disclosure may be
required by law and except to the extent that the Trustee, in its sole
judgment, may determine that such disclosure is consistent with its
obligations hereunder;
(7) the Trustee 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 Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(8) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder;
(9) the Trustee shall not be charged with knowledge of any
default or Event of Default with respect to the Securities, unless
either (1) a Responsible Officer shall have actual knowledge of such
default or Event of Default or (2) written notice of such default or
Event of Default shall have been given to the Trustee by the Bank or by
any Holder of the Securities; and
(10) the permissive rights of the Trustee enumerated herein
shall not be construed as duties.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Bank, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the use
or application by the Bank of Securities or the proceeds thereof.
36
Section 605. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar or any other
agent of the Bank, in its individual or any other capacity, may become the owner
or pledgee of Securities and, subject to Sections 608 and 613, may otherwise
deal with the Bank with the same rights it would have if it were not Trustee,
Paying Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Bank.
Section 607. Compensation and Reimbursement.
The Bank agrees:
(1) to pay to the Trustee from time to time such compensation
as shall be agreed to in writing between the Bank and the Trustee for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the reasonable expenses and disbursements
of its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith;
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the reasonable costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder;
(4) when the Trustee incurs any expenses or renders any
services after the occurrence of an Event of Default specified in
Section 501(3), such expenses and the compensation for such services
are intended to constitute expenses of administration under the
Winding-Up and Restructuring Act of Canada or any similar Canadian or
United States federal or state law for the relief of debtors; and
(5) the obligations of the Bank under this Section to
compensate and indemnify the Trustee and to pay or reimburse the
Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture and the removal and resignation of the
Trustee. Such additional indebtedness shall be a senior claim and lien
to that of the Securities upon all property and funds held or collected
by the Trustee as such, except funds held in trust for the benefit of
the Holders of particular Securities, and the
37
Securities are hereby subordinated to such senior claim. In no event
shall the lien granted hereunder attach to any assets of the Bank.
Section 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, has a combined
capital and surplus of at least $50,000,000 and has its Corporate Trust Office
in the Borough of Manhattan, The City of New York. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section
and to the extent permitted by the Trust Indenture Act, 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. If at any time
the Trustee with respect to the Securities of any series 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 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Bank. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the Bank.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Bank or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
38
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Bank or
by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Bank by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Bank shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of Section
611. If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Bank and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 611, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Bank. If no successor Trustee with respect to
the Securities of any series shall have been so appointed by the Bank or the
Holders and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
The Bank shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series to all Holders of
Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Bank and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Bank or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument
39
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Bank, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and that (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Bank 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 that or those series to which the appointment of
such successor Trustee relates.
Upon request of any such successor Trustee, the Bank shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion, consolidation or sale to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
40
Section 613. Preferential Collection of Claims Against Bank.
If and when the Trustee shall be or become a creditor of the Bank (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Bank (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Bank and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent 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, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent (including the
authenticating agency contemplated by this Indenture), shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Bank. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Bank. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent that shall be acceptable to the Bank and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. 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
41
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Bank agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated:
JPMorgan Chase Bank,
As Trustee
By
--------------------------,
As Authenticating Agent
By
---------------------------
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND BANK
Section 701. Bank to Furnish Trustee Names and Addresses of Holders.
The Bank will furnish or cause to be furnished to the Trustee
(1) semi-annually either (i) not later than January 15 and
July 15 in each year in the case of any series of Securities consisting
solely of Original Issue Discount Securities, which by their terms do
not bear interest prior to Maturity, or (ii) not more than 15 days
after each Regular Record Date in the case of Securities of any other
series, a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders of Securities of each series as
of the preceding January 1 or July 1 or as of such Regular Record Date,
as the case may be, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Bank of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
excluding from any such list names and addresses received by the
Trustee in its capacity as Security Registrar.
42
Section 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees
with the Bank and the Trustee that neither the Bank nor the Trustee nor any
agent of either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to the Trust
Indenture Act.
Section 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Bank. The Bank will
notify the Trustee when any Securities are listed on any stock exchange.
Section 704. Reports by Bank.
The Bank shall file with the Trustee and the Commission, and transmit
to Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; provided that any such information,
documents or reports filed electronically with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be deemed filed with, and
delivered to, the Trustee at the same time as filed with the Commission.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Bank's compliance
with any of its covenants hereunder (as to which the Trustee is entitled to
conclusively rely exclusively on Officers' Certificates).
43
ARTICLE EIGHT
CONSOLIDATION, AMALGAMATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Bank May Consolidate, Etc., Only on Certain Terms.
The Bank shall not merge, amalgamate, consolidate or otherwise combine
with another other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, unless:
(1) in case the Bank shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by, or
resulting from, such consolidation or amalgamation or into which the
Bank is merged or the Person that acquires by conveyance or transfer,
or which leases, the properties and assets of the Bank substantially as
an entirety shall be a corporation, partnership or trust, shall be
organized and validly existing and shall be legally responsible for the
Securities, whether by agreement, operation of law or otherwise;
(2) the consolidation, amalgamation, merger, conveyance,
transfer or lease must not cause an Event of Default including any
event which, after notice or lapse of time or both, would become an
Event of Default, shall have happened and be continuing; and
(3) the Bank has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, amalgamation, merger, conveyance, transfer or lease and,
if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
Section 802. Successor Substituted.
Upon any consolidation or amalgamation of the Bank with, or merger of
the Bank into, any other Person or any conveyance, transfer or lease of the
properties and assets of the Bank substantially as an entirety in accordance
with Section 801, the successor Person formed by or resulting from such
consolidation or amalgamation or into which the Bank is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Bank under this Indenture with
the same effect as if such successor Person had been named as the Bank herein,
and thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
44
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Bank and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Bank
and the assumption by any such successor of the covenants of the Bank
herein and in the Securities; or
(2) to add to the covenants of the Bank for the benefit of the
Holders of all or any series of Securities (and if such covenants are
to be for the benefit of less than all series of Securities, stating
that such covenants are expressly being included solely for the benefit
of such series) or to surrender any right or power herein conferred
upon the Bank; or
(3) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such additional
Events of Default are to be for the benefit of less than all series of
Securities, stating that such additional Events of Default are
expressly being included solely for the benefit of such series); or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or
to permit or facilitate the issuance of Securities in uncertificated
form; or
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities, provided
that any such addition, change or elimination (A) shall neither (i)
apply to any Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such
provision nor (ii) modify the rights of the Holder of any such Security
with respect to such provision or (B) shall become effective only when
there is no Security described in clause (i) Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611; or
45
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided that such
action pursuant to this Clause (9) shall not adversely affect the
interests of the Holders of Securities of any series in any material
respect.
Section 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Bank and the
Trustee, the Bank and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security or any other Security
which would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 502, or change any Place of
Payment where, or the coin or currency in which, any Security or any
premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) if any Security provides that the Holder may require the
Bank to repurchase such Security, impair such Holder's right to require
repurchase of such Security on the terms provided therein, or
(3) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(4) modify any of the provisions of this Section, Section 513
or Section 1006, 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 Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this Section
and Section 1006, or the deletion of this proviso, in accordance with
the requirements of Sections 611 and 901(8).
A supplemental indenture that changes or eliminates any covenant or other
provision of this Indenture that has expressly been included solely for the
benefit of one or more particular series of Securities, or that modifies the
rights of the Holders of Securities of such series with respect to
46
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.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
in addition to the documents required by Section 102, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Bank shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Bank, to any such supplemental indenture may be
prepared and executed by the Bank and authenticated and delivered by the Trustee
in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
The Bank covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
47
Section 1002. Maintenance of Office or Agency.
The Bank will maintain in each Place of Payment, and in the State of
New York, for any series of Securities an office or agency where Securities of
that series may be presented or surrendered for payment, where Securities of
that series may be surrendered for registration of transfer or exchange, and
where notices and demands to or upon the Bank in respect of the Securities of
that series and this Indenture may be served. The Bank will give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Bank shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Bank hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Bank may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Bank of its obligation to maintain an office or agency in
each Place of Payment for Securities of any series for such purposes. The Bank
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
If the Bank issues Securities of any series through a branch, agency or
office other than its head or home office, the Bank represents that,
notwithstanding the place of booking office or jurisdiction of incorporation or
organization of the Bank, the obligations of the Bank in respect of such
Securities are the same as if it had issued such Securities through its head or
home office.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Bank shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
deposit in an account established for the purpose of providing the Persons
entitled thereto a sum sufficient to pay the principal and any premium and
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee of
its action or failure so to act.
Whenever the Bank shall have one or more Paying Agents for any series
of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Bank
will promptly notify the Trustee of its action or failure so to act.
The Bank will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Bank (or any other obligor upon the Securities
of that series) in the making of any payment in respect of the Securities of
that series, upon the written request of
48
the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent for payment in respect of the Securities of that series.
The Bank may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Bank Order
direct any Paying Agent to pay, to the Trustee all sums held by the Bank or such
Paying Agent, such sums to be held by the Trustee in trust for the benefit of
the Persons entitled thereto; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent in trust for
the payment of the principal of or any premium or interest on any Security of
any series and remaining unclaimed for two years after such principal, premium
or interest has become due and payable shall be paid to the Bank on Bank
Request; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Bank for payment thereof, and all liability
of the Trustee or such Paying Agent with respect to such trust money, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the Bank
cause to be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in the
Borough of Manhattan, The City of New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Bank.
Section 1004. Statement by Officers as to Default.
The Bank will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Bank ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Bank is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Bank shall be in
default, specifying all such defaults and the nature and status thereof of which
they may have knowledge.
Section 1005. Existence.
Subject to Article Eight, the Bank will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence.
Section 1006. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for
Securities of such series, the Bank may, with respect to the Securities of any
series, omit in any particular instance to comply with any term, provision or
condition set forth in any covenant provided pursuant to Section 301(18), 901(2)
or 901(7) for the benefit of the Holders of such series or in Section 1005 if
before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities of such series shall, by Act of
such Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Bank
49
and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Subject to any applicable law restricting the redemption of the
Securities, Securities of any series that are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for such Securities) in
accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Bank to redeem any Securities shall be evidenced by
a Board Resolution or in another manner specified as contemplated by Section 301
for such Securities. In case of any redemption at the election of the Bank of
less than all the Securities of any series (including any such redemption
affecting only a single Security), the Bank shall, at least 60 days prior to the
Redemption Date fixed by the Bank (unless a shorter notice shall be satisfactory
to the Trustee), notify the Trustee of such Redemption Date, of the principal
amount of Securities of such series to be redeemed and, if applicable, of the
tenor of the Securities to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Bank shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all the Securities of such series and of a specified tenor are to be
redeemed or unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of a portion of the principal amount of any Security of such series,
provided that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security. If less than all the Securities of
such series and of a specified tenor are to be redeemed (unless such redemption
affects only a single Security), the particular Securities to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series and specified tenor not
previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Bank in writing of the Securities
selected for redemption as aforesaid and, in case of any Securities selected for
partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or
50
in part. In the case of any such redemption in part, the unredeemed portion of
the principal amount of the Security shall be in an authorized denomination
(which shall not be less than the minimum authorized denomination) for such
Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities that has been or is to be
redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series
consisting of a single Security are to be redeemed, the principal
amount of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where each such Security is to be
surrendered for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the
case; and
(7) if applicable, the CUSIP numbers of the Securities of that
series.
Notice of redemption of Securities to be redeemed at the election of
the Bank shall be given by the Bank or, at the Bank's request, by the Trustee in
the name and at the expense of the Bank and, unless otherwise specified or
contemplated by Section 301, shall be irrevocable.
Section 1105. Deposit of Redemption Price.
One Business Day prior to any Redemption Date, the Bank shall deposit
with the Trustee or with a Paying Agent (or, if the Bank is acting as its own
Paying Agent, deposit in an account established for the purpose as provided in
Section 1003) an amount of money sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date or the
51
Securities of the series provide otherwise) accrued interest on, all the
Securities which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Bank shall default in the payment of the Redemption Price and accrued interest)
such Securities shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with said notice, such Security shall be
paid by the Bank at the Redemption Price, together, if applicable, with accrued
interest to the Redemption Date; provided, however, that, unless otherwise
specified as contemplated by Section 307, installments of interest whose Stated
Maturity is on or prior to the Redemption Date will be payable to the Holders of
such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 1107. Securities Redeemed in Part.
Any Security that is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Bank or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Bank and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Bank shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of the same series and of like tenor, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
PURCHASE OR REPAYMENT OF SECURITIES BY THE BANK AT THE OPTION OF THE HOLDER
Section 1201. Applicability of Article.
Subject to any applicable law restricting the purchase or repayment of
the Securities by the Bank at the option of the Holder, Securities of any series
the terms of which provide to each Holder the option to require the Bank to
purchase or repay such Securities in certain circumstances shall, upon exercise
of such option, be repayable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
52
Section 1202. Notice of Repayment Date.
Notice of any Repayment Date with respect to Securities of any series
shall, unless otherwise specified by the terms of the Securities of such series,
be given by the Bank not less than 30 nor more than 90 days prior to such
Repayment Date to each Holder of Securities of such series in accordance with
Section 106.
Such notice shall state:
(a) the Repayment Date;
(b) the Repayment Price;
(c) the place or places where, and the date by which, such
Securities are to be surrendered for payment of the Repayment Price;
(d) a description of the procedure which a Holder must follow
to exercise the purchase or repayment option;
(e) that exercise of the purchase or repayment option to elect
repayment is irrevocable; and
(f) such other information as the Bank may consider
appropriate for inclusion.
No failure of the Bank to give the foregoing notice shall limit any
Holder's right to exercise a repayment right.
Section 1203. Deposit of Repayment Price.
One Business Day prior to the Repayment Date, the Bank shall deposit
with the Trustee or with a Paying Agent (or, if the Bank is acting as its own
Paying Agent, deposit in an account established for the purpose provided in
Section 1003) an amount of money sufficient to pay the Repayment Price of and
(unless the Repayment Date shall be an Interest Payment Date) accrued and unpaid
interest, if any, on all of the Securities of such series that are to be repaid
on that date.
Section 1204. Securities Payable on Repayment Date.
Holders having duly exercised the option to require purchase or
repayment by the Bank on any Repayment Date as specified in the form of Security
for such series as provided in Section 203, the Securities of such series so to
be purchased or repaid shall, on the Repayment Date, become due and payable at
the Repayment Price applicable thereto and from and after such date (unless the
Bank shall default in the payment of the Repayment Price and accrued interest
(including any Additional Interest)) such Securities shall cease to bear
interest. Upon surrender of any such Security for purchase or repayment in
accordance with the terms of such Security, provided the option has been duly
exercised and the Security duly surrendered as specified in the form of such
Security, such Security shall be paid by the Bank at the Repayment Price
together with accrued interest to the Repayment Date; provided, however, that
installments of interest whose Stated Maturity is on or prior to such Repayment
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
53
If any Security shall not be paid upon due exercise of the option and
surrender thereof for purchase or repayment, the Repayment Price shall, until
paid, bear interest from the Repayment Date at the rate prescribed therefor in
such Security.
Section 1205. Securities Repaid in Part.
Any Security that by its terms may be purchased or repaid by the Bank
in part at the option of the Holder and that is to be purchased or repaid only
in part by the Bank shall be surrendered at any office or agency of the Bank
designated for that purpose pursuant to Section 1002 (with, if the Bank or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Bank and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Bank shall execute,
and the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unpurchased or unrepaid portion of the
principal of the Security so surrendered.
ARTICLE THIRTEEN
SINKING FUNDS
Section 1301. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the
terms of any series of Securities is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of such Securities is herein referred to as an "optional sinking fund
payment". If provided for by the terms of any series of Securities, the cash
amount of any sinking fund payment may be subject to reduction as provided in
Section 1302. Each sinking fund payment shall be applied to the redemption of
Securities of the series as provided for by the terms of such Securities.
Section 1302. Satisfaction of Sinking Fund Payments with Securities.
The Bank (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the Bank (a)
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment with respect
to any Securities of such series required to be made pursuant to the terms of
such Securities as and to the extent provided for by the terms of such series or
(b) have been purchased or repaid by the Bank through the exercise of an option
by the Holder as provided for in the terms of such Securities; provided that the
Securities to be so credited have not been previously so credited. The
Securities to be so credited shall be received and credited for such purpose by
the Trustee at the Redemption Price, as specified in the Securities so to be
redeemed, for redemption through
54
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
Section 1303. Redemption of Securities for Sinking Fund.
Not less than [60] days prior to each sinking fund payment date for any
Securities, the Bank will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1302 and will also deliver to the Trustee any Securities to be so
delivered. Not less than [30] days prior to each such sinking fund payment date,
the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Bank in
the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1401. Bank's Option to Effect Defeasance or Covenant Defeasance.
Unless otherwise provided as contemplated by Section 301, Sections 1402
and 1403 shall apply to any Securities or any series of Securities, as the case
may be, in either case, denominated in U.S. dollars and bearing interest at a
fixed rate, in accordance with any applicable requirements provided pursuant to
Section 301 and upon compliance with the conditions set forth below in this
Article; and the Bank may elect, at its option at any time, to have Sections
1402 and 1403 applied to any Securities or any series of Securities, as the case
may be, designated pursuant to Section 301 as being defeasible pursuant to such
Section 1402 or 1403, in accordance with any applicable requirements provided
pursuant to Section 301 and upon compliance with the conditions set forth below
in this Article. Any such election to have or not to have Sections 1402 and 1403
apply, as the case may be, shall be evidenced by a Board Resolution or in
another manner specified as contemplated by Section 301 for such Securities.
Section 1402. Defeasance and Discharge.
Upon the Bank's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, or if
this Section shall otherwise apply to any Securities or any series of
Securities, as the case may be, the Bank shall be deemed to have been discharged
from its obligations with respect to such Securities as provided in this Section
on and after the date the conditions set forth in Section 1404 are satisfied
(hereinafter called "Defeasance"). For this purpose, such Defeasance means that
the Bank shall be deemed to have paid and discharged the entire indebtedness
represented by such Securities and to have satisfied all its other obligations
under such Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, at the expense of the Bank, shall execute proper
instruments acknowledging the same), subject to the following, which shall
survive until otherwise terminated or discharged hereunder: (1) the rights of
Holders of such Securities to receive, solely from the trust fund described in
Section 1404 and as more fully set forth in such Section, payments in
55
respect of the principal of and any premium and interest on such Securities when
payments are due, (2) the Bank's obligations with respect to such Securities
under Sections 304, 305, 306, 1002 and 1003, (3) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (4) this Article. Subject to
compliance with this Article, the Bank may exercise its option (if any) to have
this Section applied to the Securities of any series notwithstanding the prior
exercise of its option (if any) to have Section 1403 applied to such Securities.
Section 1403. Covenant Defeasance.
Upon the Bank's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, or if
this Section shall otherwise apply to any Securities or any series of
Securities, as the case may be, (1) the Bank shall be released from its
obligations under Sections 1005 and 1006 and any covenants provided pursuant to
Section 301(18), 901(2) or 901(7) for the benefit of the Holders of such
Securities and (2) the occurrence of any event specified in Section 501(2) shall
be deemed not to be or result in an Event of Default, in each case with respect
to such Securities as provided in this Section on and after the date the
conditions set forth in Section 1404 are satisfied (hereinafter called "Covenant
Defeasance"). For this purpose, such Covenant Defeasance means that, with
respect to such Securities, the Bank may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
specified Section, whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or by reason of any reference in any such
Section to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected thereby.
Section 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section
1402 or 1403 to any Securities or any series of Securities, as the case may be:
(1) The Bank shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee that satisfies the
requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article 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 benefits of the Holders
of such Securities, (A) money in an amount, or (B) U.S. Government
Obligations that 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,
money in an amount, or (C) a combination thereof, in each case
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or any such other qualifying trustee) to pay
and discharge, the principal of and any premium and interest on such
Securities on the respective Stated Maturities, in accordance with the
terms of this Indenture and such Securities. As used herein, "U.S.
Government Obligation" means (x) any security that is (i) a direct
obligation of the United States of America for the payment of which the
full faith and credit of the United States of America is pledged or
(ii) an obligation of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either
case (i) or (ii), is not
56
callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any U.S. Government
Obligation which is specified in Clause (x) above and held by such bank
for the account of the holder of such depositary receipt, or with
respect to any specific payment of principal of or interest on any U.S.
Government Obligation which is so specified and held, provided that
(except as required by law) such custodian is not authorized to make
any deduction from the amount payable to the holder of such depositary
receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of principal or
interest evidenced by such depositary receipt.
(2) In the event of an election to have Section 1402 apply to
any Securities or any series of Securities, as the case may be, the
Bank shall have delivered to the Trustee an Opinion of Counsel stating
that (A) the Bank has received from, or there has been published by,
the Internal Revenue Service a ruling or (B) since the date of this
instrument, there has been a change in the applicable Federal income
tax law, in either case (A) or (B) to the effect that, and based
thereon such opinion shall confirm that, the Holders of such Securities
will not recognize gain or loss for Federal income tax purposes as a
result of the deposit, Defeasance and discharge to be effected with
respect to such Securities and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would be
the case if such deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 1403 apply to
any Securities or any series of Securities, as the case may be, the
Bank shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of such Securities will not recognize gain or
loss for Federal income tax purposes as a result of the deposit and
Covenant Defeasance to be effected with respect to such Securities and
will be subject to Federal income tax on the same amount, in the same
manner and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(4) The Bank shall have delivered to the Trustee an Officers'
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities
exchange, will be delisted as a result of such deposit.
(5) No event that is, or after notice or lapse of time or both
would become, an Event of Default with respect to such Securities or
any other Securities shall have occurred and be continuing at the time
of such deposit or, with regard to any such event specified in Section
501(1), at any time on or prior to the 90th day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the
meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Bank is a party or by which it is
bound.
57
(8) Such Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act unless such trust
shall be registered under such Act or exempt from registration
thereunder.
(9) The Bank shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have
been complied with (in each case, subject to the satisfaction of the
condition in clause (5)).
Section 1405. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (solely for purposes of this
Section and Section 1406, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1404 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Bank 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 any
premium and interest, but money so held in trust need not be segregated from
other funds except to the extent required by law.
The Bank shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Bank from time to time upon Bank Request any money
or U.S. Government Obligations held by it as provided in Section 1404 with
respect to any Securities 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 the Defeasance or Covenant Defeasance, as
the case may be, with respect to such Securities.
Section 1406. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Bank has been discharged or
released pursuant to Section 1402 or 1403 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 1405 with respect to such Securities
in accordance with this Article; provided, however, that if the Bank makes any
payment of principal of or any premium or interest on any such Security
58
following such reinstatement of its obligations, the Bank shall be subrogated to
the rights (if any) of the Holders of such Securities to receive such payment
from the money so held in trust.
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
Section 1501. Securities Subordinate to Deposit Liabilities and Other
Indebtedness.
The Securities constitute subordinated indebtedness within the meaning
of the Bank Act (Canada) and, in the event of the insolvency or winding-up of
the Bank, the indebtedness evidenced by the Securities ranks in right of payment
equally with and not prior to:
(a) the debentures under the 1984 Indenture;
(b) the debentures under the 1986 Indenture;
(c) the debentures under the 1994 Indenture;
(d) the debentures under the 1997 Indenture;
(e) the debentures under the Programme for the Issuance of Notes;
and
(f) the debentures evidencing the Bank's US$300 million aggregate
principal amount of Subordinated Notes due October 24, 2011.
and subordinate in right of payment to the prior payment in full of
(1) Indebtedness of the Bank then outstanding, other than
Subordinated Indebtedness;
(2) all Indebtedness to which the debentures under the 1984
Indenture are subordinate in right of payment to the same extent as the
debentures under the 1984 Indenture are subordinate thereto under the
provisions of Article IV of the Trust Indenture made as of October 1,
1984 between the Bank and Montreal Trust Company of Canada, a trust
company incorporated under the laws of Canada (the "Montreal Trust
Company of Canada") and subsequently assigned to Computershare Trust
Company of Canada, a trust company incorporated under the laws of
Canada (the "Computershare Trust Company");
(3) all Indebtedness to which the debentures under the 1986
Indenture are subordinate in right of payment to the same extent as the
debentures under the 1986 Indenture are subordinate thereto under the
provisions of Article IV of the Trust Indenture made as of June 6, 1986
between the Bank and Montreal Trust Company of Canada and subsequently
assigned to Computershare Trust Company;
(4) all Indebtedness to which the debentures under the 1994
Indenture are subordinate in right of payment to the same extent as the
debentures under the 1994 Indenture are subordinate thereto under the
provisions of Article IV of the Trust
59
Indenture made as of November 14, 1994 between the Bank and Montreal
Trust Company of Canada and subsequently assigned to Computershare
Trust Company;
(5) all Indebtedness to which the debentures under the 1997
Indenture are subordinate in right of payment to the same extent as the
debentures under the 1997 Indenture are subordinate thereto under the
provisions of Article IV of the Trust Indenture made as of May 21, 1997
between the Bank and Montreal Trust Company of Canada and subsequently
assigned to Computershare Trust Company;
(6) all Indebtedness to which the debentures under the
Programme for the Issuance of Notes are subordinate to in right of
payment; and
(7) all Indebtedness to which the debentures evidencing the
Bank's US$300 million aggregate principal amount of Subordinated Notes
due October 24, 2011 are subordinated to in right of payment.
The Bank agrees and each holder of any Security, by his acceptance of
such Security, also agrees and shall be deemed conclusively to have agreed, for
the benefit of the present and future holders of Indebtedness, other than
Subordinated Indebtedness, for the benefit of all present and future holders of
Indebtedness to which the debentures under the 1984 Indenture are subordinate in
right of payment, for the benefit of all present and future holders of
Indebtedness to which the debentures under the 1986 Indenture are subordinate in
right of payment, for the benefit of all present and future holders of
Indebtedness to which the debentures under the 1994 Indenture are subordinate in
right of payment, for the benefit of all present and future holders of
Indebtedness to which the debentures under the 1997 Indenture are subordinate in
right of payment and for the benefit of all present and future holders of
Indebtedness to which the debentures under the Programme for the Issuance of
Notes are subordinate in right of payment and for the benefit of all present and
future holders of Indebtedness to which the debentures evidencing the Bank's
US$300 million aggregate principal amount of Subordinated Notes due October 24,
2011 are subordinate in right of payment, to the provisions of this Article
Fifteen and the Bank and each holder of any Security by his acceptance of such
Security shall be bound by such provisions.
Section 1502. Further Assurances of Subordination.
Each holder of Securities by his acceptance of such Security authorizes
and directs the Trustee on his behalf to take such action as may be necessary or
appropriate further to assure the subordination as provided in this Article
Fifteen.
Section 1503. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon payment or distribution of assets of the Bank, the Trustee,
subject to the provisions of Article Six hereof, and the Holders of the
Securities shall be entitled to rely upon any order or decree made by any court
of competent jurisdiction in which bankruptcy, dissolution, winding-up,
liquidation or reorganization proceedings are pending, or upon any certificate
of the receiver, trustee in bankruptcy, liquidating trustee, agent or other
Person making such payment or distribution, delivered to the Trustee or the
Holders of the Securities, for the purpose of ascertaining the Persons entitled
to participate in such distribution, the holders of the Senior Indebtedness and
other Indebtedness of the Bank, the amount thereof or payable thereon, the
60
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Fifteen.
Section 1504. Trustee's Compensation Not Prejudiced.
Nothing in this Article Fifteen will apply to amounts due to the
Trustee pursuant to other sections in this Indenture.
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
Section 1601. Consent to Jurisdiction and Service of Process.
The Bank irrevocably submits to the jurisdiction of any New York State
or Federal court sitting in The City of New York over any suit, action or
proceeding arising out of or relating to this Indenture or any Security. The
Bank irrevocably waives, to the fullest extent permitted by law, any objection
that it may have to the laying of the venue of any such suit, action or
proceeding brought in such a court and any claim that any such suit, action or
proceeding brought in such a court has been brought in any inconvenient forum.
The Bank agrees that final judgment in any such suit, action or proceeding
brought in such a court shall be conclusive and binding upon the Bank and may be
enforced in the courts of Canada (or any other courts to the jurisdiction of
which the Bank is subject) by a suit upon such judgment, provided that service
of process is effected upon the Bank in the manner specified in the following
paragraph or as otherwise permitted by law; provided, however, that the Bank
does not waive, and the foregoing provisions of this sentence shall not
constitute or be deemed to constitute a waiver of, (i) any right to appeal any
such judgment, to seek any stay or otherwise to seek reconsideration or review
of any such judgment or (ii) any stay of execution or levy pending an appeal
from, or a suit, action or proceeding for reconsideration or review of, any such
judgment.
As long as any of the Securities remain outstanding, the Bank will at
all times have an authorized agent in the Borough of Manhattan, The City of New
York upon whom process may be served in any legal action or proceeding arising
out of or relating to the Indenture or any Security. Service of process upon
such agent and written notice of such service mailed or delivered to the Bank
shall to the extent permitted by law be deemed in every respect effective
service of process upon the Bank in any such legal action or proceeding. The
Bank hereby appoints National Corporate Research, Ltd. as its agent for such
purpose, and covenants and agrees that service of process in any such legal
action or proceeding may be made upon it at the office of such agent at 000 Xxxx
00xx Xxxxxx, Xxxxx 000, Xxx Xxxx, XX 00000-0000 (or at such other address in the
Borough of Manhattan, The City of New York, as the Bank may designate by written
notice to the Trustee).
The Bank hereby consents to process being served in any suit, action or
proceeding of the nature referred to in the preceding paragraphs by service upon
such agent together with the mailing of a copy thereof by registered or
certified mail, postage prepaid, return receipt requested, to the address of the
Bank in Toronto set forth in the first paragraph of this instrument or to any
other address of which the Bank shall have given written notice to the Trustee.
The Bank irrevocably waives, to the fullest extent permitted by law, all claim
of error by reason of any such service (but does not waive any right to assert
lack of subject matter jurisdiction) and agrees that
61
such service (i) shall be deemed in every respect effective service of process
upon the Bank in any such suit, action or proceeding and (ii) shall, to the
fullest extent permitted by law, be taken and held to be valid personal service
upon and personal delivery to the Bank.
Nothing in this Section shall affect the right of the Trustee or any
Holder to serve process in any manner permitted by law or limit the right of the
Trustee to bring proceedings against the Bank in the courts of any jurisdiction
or jurisdictions.
Section 1602. Indenture and Securities Solely Corporate Obligations.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, any supplemental indenture, or of any Security, or for any claim
based thereon or otherwise in respect thereof, shall be had against any
incorporator, shareholder, officer or director, as such, past, present or
future, of the Bank or of any successor corporation, either directly or through
the Bank, 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 such personal liability whatever shall attach
to, or is or shall be incurred by, the incorporators, shareholders, officers or
directors, as such, of the Bank or of any successor corporation, 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 any of the Securities or implied therefrom; and that any and all such
personal liability, 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, shareholder, officer or director, 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.
Section 1603. Execution in Counterparts.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
62
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
ROYAL BANK OF CANADA
By:
-----------------------------------------------
Name:
Title:
By:
-----------------------------------------------
Name:
Title:
JPMORGAN CHASE BANK, as Trustee
By:
-----------------------------------------------
Name:
Title:
63
