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FISCAL AND PAYING AGENCY AGREEMENT
between
Bank of Montreal, Chicago Branch
and
Bank of Montreal Trust Company,
as fiscal and paying agent
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Dated as of April 6, 1995
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U.S. $300,000,000
7.80% Subordinated Notes due 2007
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FISCAL AND PAYING AGENCY AGREEMENT, dated as of April 6, 1995, between
BANK OF MONTREAL, a Canadian chartered bank (the "Bank") acting through its
CHICAGO BRANCH (the "Branch"), and BANK OF MONTREAL TRUST COMPANY, a trust
company organized and existing under the laws of the State of New York, as
fiscal and paying agent.
1. The Bank has, by an Underwriting Agreement dated March 30, 1995
(the "Underwriting Agreement") with the several underwriters named therein, for
whom Xxxxxxx, Xxxxx & Co., Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated and Xxxxxx Xxxxxxx Thomson Securities Inc. are acting as
representatives, agreed that the Bank shall issue U.S. $300,000,000 aggregate
principal amount of the Bank's 7.80% Subordinated Notes due 2007 (the "Notes").
The Notes will be issued in accordance with the written instructions of a duly
authorized officer of the Bank (the "Authorization") in substantially the form
of Exhibit A hereto. The Notes will be issued in substantially the form set
forth in Exhibit B hereto in denominations of U.S. $125,000 and in integral
multiples of U.S. $1,000 in excess thereof.
The Notes shall bear interest in the manner and be payable at the
times described, and at the rate specified, in the form of Note set forth in
Exhibit B hereto. Each Note shall be dated April 6, 1995. Unless otherwise
defined herein, the terms used herein shall have the meanings ascribed to them
in the Notes. Any reference herein to principal or interest shall be deemed also
to refer to any Additional Amounts (as hereinafter defined) which may be payable
under the Notes.
2. (a) The Bank hereby appoints Bank of Montreal Trust Company, at
present having its corporate trust office at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, as its fiscal agent in respect of the Notes upon the terms and subject to
the conditions set forth herein and in the Notes. Bank of Montreal Trust Company
and its successor or successors as such fiscal agent, qualified and appointed in
accordance with Section 9 hereof, are herein called the "Fiscal Agent". The
Fiscal Agent hereby agrees to act as the agent of the Bank for the purpose of
providing an office in The City of New York where payment of principal of and
interest on Notes shall be made, unless mailed or wired to the Holder as
provided in the Notes or unless, with respect to principal, such payment is made
at the principal office of the Branch, and where Notes may be presented for
registration of transfer or exchange. The Fiscal Agent further agrees to cause
to be kept at its corporate trust office in The City of New York a register (the
register maintained in such office being herein sometimes referred to as the
"Note
Register" and the Fiscal Agent, acting in such capacity, as the "Note
Registrar") in which, subject to such reasonable additional regulations as the
Bank may from time to time prescribe, the Bank shall provide for the
registration of Notes and the registration of transfers and exchanges of Notes.
The Note Registrar will not register a Note in the Note Register in the name of
a resident of Canada at any time prior to July 6, 1995. The term "Holder" when
used herein means the person in whose name the Note is registered in the Note
Register. The Fiscal Agent shall have the powers and authority granted to and
conferred upon it herein and in the Notes and such further powers and authority,
acceptable to it, to act on behalf of the Bank as the Bank may hereafter grant
to or confer upon it.
(b) The Bank, at any time and in its sole discretion, may appoint a
separate paying agent for purposes of providing an office in The City of New
York, and such additional paying agents in such locations as the Bank deems
appropriate, where payment of principal of and interest on the Notes shall be
made, unless mailed or wired to the Holder as provided in the Notes or unless,
with respect to principal, such payment is made at the principal office of the
Branch. Any paying agent so appointed and its successor or successors as such
principal paying agent, and such additional paying agents so appointed and their
successors as such paying agents, qualified and appointed in accordance with
Section 9 hereof, are herein collectively called the "Paying Agent." In the
event that the Bank so appoints a Paying Agent, the Fiscal Agent shall have the
powers and authority granted to and conferred upon it in accordance with Section
2(a) hereof except for such powers as are granted to and conferred upon the
Paying Agent, and the Paying Agent shall have the powers and authority granted
to and conferred upon it by the Bank and such further powers and authority,
acceptable to it, to act on behalf of the Bank as the Bank may thereafter grant
to or confer upon it. If the Bank appoints a Paying Agent as provided in this
Section 2(b), to the extent appropriate (taking into account the
responsibilities of and the powers granted to such Paying Agent) and, in
particular, in order to grant to the Paying Agent certain rights of
indemnification and reimbursement provided to the Fiscal Agent hereunder,
references herein to the Fiscal Agent shall mean the Paying Agent, or the Fiscal
Agent and the Paying Agent, as the case may be.
3. (a) The Notes shall be executed under the corporate seal of the
Bank (or a mechanical reproduction thereof) on behalf of the Bank by its
Chairman, its President or a Vice Chairman or one of its Vice Presidents, and by
its Secretary or one of its Assistant Secretaries.
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The signature of any of these officers on the Notes may be manual or facsimile.
Notes 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 Notes or did not hold
such offices at the date of such Notes.
At any time and from time to time after the execution and delivery of
this Agreement, the Bank may deliver Notes executed by the Bank to the Fiscal
Agent for authentication, together with an order from the Bank for the
authentication and delivery of such Notes; and the Fiscal Agent in accordance
with such order shall authenticate and deliver such Notes as in this Agreement
provided and not otherwise.
No Note shall be entitled to any benefit under this Agreement or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form included in Exhibit B
hereto executed by the Fiscal Agent by manual signature, and such certificate
upon any Note shall be conclusive evidence, and the only evidence, that such
Note has been duly authenticated and delivered hereunder.
(b) Pending the preparation of definitive Notes, the Bank may execute
and deliver to the Fiscal Agent, and upon an order from the Bank the Fiscal
Agent shall authenticate and deliver, temporary Notes which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Notes in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Notes may
determine, as evidenced by their execution of such Notes.
If temporary Notes are issued, the Bank will cause definitive Notes
to be prepared without unreasonable delay. After the preparation of definitive
Notes, the temporary Notes shall be exchangeable for definitive Notes upon
surrender of the temporary Notes at the corporate trust office of the Fiscal
Agent in The City of New York without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Notes, the Bank shall execute and the
Fiscal Agent shall authenticate and deliver in exchange therefor a like
principal amount of definitive Notes of authorized denominations. Until so
exchanged, temporary Notes shall in all respects be entitled to the same
benefits under this Agreement as definitive Notes.
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(c) This Section 3(c) shall apply only to Notes in global form
("Global Notes") deposited with or on behalf of a depositary located in the
United States (a "Depositary"), except as may otherwise be provided in the
Authorization.
If the Bank shall establish in the Authorization that the Notes are to
be issued in whole or in part in the form of one or more registered Global Notes
deposited with or on behalf of a Depositary, then the Bank shall execute and the
Fiscal Agent shall, in accordance with this Section 3(c) and the Authorization,
authenticate and deliver one or more Global Notes in substantially the form of
Exhibit B hereto that (i) shall be registered in the name of the Depositary for
such Global Note or Notes or the nominee of such Depositary; (ii) shall be
delivered by the Fiscal Agent to such Depositary or pursuant to such
Depositary's instruction and (iii) except as otherwise provided in the
Authorization, shall bear a legend substantially to the following effect: "THIS
NOTE IS ISSUED IN GLOBAL FORM AND REGISTERED IN THE NAME OF A DEPOSITARY OR SUCH
DEPOSITARY'S NOMINEE. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN DEFINITIVE FORM IN ACCORDANCE WITH THE PROVISIONS OF THE FISCAL AGENCY
AGREEMENT AND THE TERMS OF THIS NOTE, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS
A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE BANK OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN". In the event that the Depositary
with respect to a Global Note is a person other than The Depository Trust
Company, the foregoing legend shall be amended to appropriately reflect that
fact.
Members of, or participants in, a Depositary ("Agent Members") shall
have no rights under this Agreement with respect to any Global Note held on
their behalf by a Depositary or under the Global Note so held, and such
Depositary may be treated by the Bank, the Fiscal Agent, and any agent of the
Bank or the Fiscal Agent as the owner of such Global Note for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
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the Bank, the Fiscal Agent, or any agent of the Bank or the Fiscal Agent, from
giving effect to any written certification, proxy or other authorization
furnished by a Depositary or impair, as between a Depositary and its Agent
Members, the operation of customary practices governing the exercise of the
rights of a holder of any Note.
4. (a) Except as provided in Section 4(c) hereof, at the option of the
Holder, Notes may be transferred or exchanged for a like aggregate principal
amount of Notes of different authorized denominations, upon surrender of Notes
for exchange or registration of transfer at the corporate trust office of the
Fiscal Agent in The City of New York or at the office of any other agent
designated by the Bank for such purpose in accordance with the terms of this
Agreement and the Notes. Every Note surrendered for exchange or presented for
registration of transfer shall (if so required by the Bank or the Fiscal Agent)
be duly endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Bank and the Fiscal Agent, duly executed by the Holder
thereof or his attorney duly authorized in writing. Notes issued upon any such
registration of transfer or exchange will be executed by the Bank and
authenticated by the Fiscal Agent. Notes issued upon any such registration of
transfer will be registered in the name of the designated transferee or
transferees and delivered at the corporate trust office of the Fiscal Agent in
The City of New York or mailed at the request, risk and expense of, and to the
address requested by, the designated transferee or transferees. Notes issued
upon any such exchange will be registered in the name of the Holder and
delivered at the Corporate trust office of the Fiscal Agent in The City of New
York or mailed at the request, risk and expense of such Holder at the address
shown for such Holder on the Note Register.
(b) All Notes issued upon any registration of transfer or exchange of
Notes shall be valid obligations of the Bank, evidencing the same debt and
entitled to the same benefits under this Agreement as the Notes surrendered upon
such registration of transfer or exchange.
(c) Global Notes. This Section 4(c) shall apply only to Global Notes
deposited with a Depositary unless otherwise provided in the Authorization.
Notwithstanding any other provision of this Agreement or the Notes, no
Global Note may be transferred to, or registered or exchanged for Notes
registered in the name of, any person other than the Depositary with respect to
such Global Note or any nominee thereof, and no such transfer may be registered,
unless (x) the Depositary with respect to such Global Note (A) notifies the Bank
that it is
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unwilling or unable to continue as Depositary for such Global Note or (B) ceases
to be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, (y) the Bank delivers to the Fiscal Agent a written notice executed by
a duly authorized officer of the Bank that such Global Note shall be
exchangeable for definitive Notes or (z) the Bank shall fail to make any payment
of principal of, or any interest or additional amount on, the Notes when due.
If the beneficial owners of interests in a Global Note are entitled to
exchange interests for definitive Notes in registered form, as provided in the
preceding paragraph, then without unnecessary delay, but in any event not later
than the earliest date on which such interests may be so exchanged, the Bank
shall execute and deliver to the Fiscal Agent definitive registered Notes in an
aggregate principal amount equal to the principal amount of such Global Note.
On or after the earliest date on which such interests may be so exchanged, such
Global Note shall be surrendered by the Depositary to the Fiscal Agent, as the
Bank's agent for such purpose, to be exchanged, in whole or from time to time in
part, for definitive registered Notes without charge and the Fiscal Agent shall
authenticate and deliver, in exchange for each portion of such Global Note, an
equal aggregate principal amount of definitive registered Notes of authorized
denominations as the portion of such Global Note to be exchanged. Any Global
Note that is exchangeable pursuant to this Section 4(c) shall be exchangeable
for Notes issuable in the denominations specified in Section 1 hereof and
registered in such names as the Depositary that is the holder of such Global
Note shall direct. If a Note is issued in exchange for any portion of a Global
Note after the close of business at the office or agency where such exchange
occurs on any Regular Record Date (as defined in the Notes) and before the
opening of business at such office or agency on the relevant Interest Payment
Date (as defined in the Notes), interest will not be payable on such Interest
Payment Date in respect of such Note, but will be payable on such Interest
Payment Date only to the person to whom interest in respect of such portion of
such Global Note is payable.
Every Note authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, a Global Note to which the restriction
set forth in the second preceding paragraph shall apply shall, except as
provided in the immediately preceding paragraph, be authenticated and delivered
in the form of, and shall be, a Global Note.
The Depositary may grant proxies and otherwise authorize any person,
including Agent Members and persons that may hold interests through Agent
Members, to take any
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action which a Holder is entitled to take under this Agreement or the Notes.
(d) No service charge (other than any cost of delivery) shall be
imposed for any registration of transfer or exchange of Notes, but the Bank may
require payment of a sum sufficient to reimburse it for any stamp or other tax
or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Notes other than an exchange of
temporary Notes for definitive Notes (or require the presentation of evidence
that such tax or charge has been paid).
(e) Neither the Bank nor the Fiscal Agent shall be required (i) to
issue, register the transfer of or exchange any Note during a period beginning
at the opening of business 15 days before the day of mailing of a notice of
redemption of Notes to the Holders thereof and ending on the day of such
mailing, or (ii) to register the transfer of or exchange any Note so selected
for redemption.
(f) All Notes surrendered for payment, redemption, registration of
transfer or exchange shall be delivered to the Fiscal Agent. In any such case,
the Fiscal Agent shall cancel all such Notes not previously cancelled and from
time to time destroy all such Notes and shall furnish to the Bank a certificate
with respect to such destruction.
5. (a) The Bank shall pay or cause to be paid to the Fiscal Agent the
amounts necessary to make all payments on the Notes, at the times and for the
purposes set forth herein and in the Notes, and the Bank hereby authorizes and
directs the Fiscal Agent to make payments of the principal of and interest on
the Notes solely out of amounts made available by the Bank, and the Fiscal Agent
shall make such payments in accordance with the payment provisions of the Notes
out of such amounts made available by the Bank.
(b) At least 30 days prior to the date on which any payment of
additional amounts ("Additional Amounts") in respect of Canadian withholding
taxes with respect to any Note shall be required to be made pursuant to Section
3 on the reverse of the Notes, the Bank shall furnish to the Fiscal Agent a
certificate of its Chairman, its President, a Vice chairman or any of its Vice
Presidents and the secretary or any Assistant Secretary which specifies by
country the amount, if any, required to be withheld for or on account of any
taxes described in Section 3 on the reverse of the Notes and such Additional
Amounts, if any, due to the Holders of Notes and shall pay to the Fiscal Agent
such amounts as shall be required to be paid as such Additional Amounts to such
Holders, except to the extent
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provided in the last sentence of the last paragraph of Section 3 on the reverse
of the Notes. The Bank hereby agrees to indemnify the Fiscal Agent for, and to
hold it harmless against, any loss, liability or expense incurred without bad
faith on its part arising out of or in connection with actions taken or omitted
by it in reliance on any certificate furnished pursuant to this Section 5(b) or
the Bank's failure to furnish such a certificate.
6. If, under the circumstances described in Section 3 on the reverse
of the Notes, the Bank shall elect to redeem outstanding Notes, and, to the
extent not inconsistent with the provisions of the Notes if the Bank shall
redeem the Notes as provided in the last sentence of the last paragraph of
section 3 on the reverse of the Notes, the following provisions shall be
applicable:
(a) The Bank shall, at least 75 days before the date designated for
such redemption, give notice to the Fiscal Agent of its election to redeem Notes
on the redemption date and at the redemption price specified in such notice. The
Bank shall also state in such notice the identity and principal amount of the
Notes to be redeemed and shall deliver to the Fiscal Agent the certificate
required by Section 3 on the reverse of the Notes.
(b) In case the Bank shall give notice to the Fiscal Agent of its
election to redeem outstanding Notes, the Fiscal Agent shall give notice by
mail, first-class postage prepaid, to each holder affected, at the address shown
for such Holder on the Note Register. Such notice shall be given once not more
than 60 days nor less than 30 days prior to the date fixed for redemption.
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.
Such notice of redemption shall be prepared by the Bank and shall
specify: (i) the date fixed for redemption; (ii) the redemption price; (iii) the
place or places of payment and that payment will be made upon presentation and
surrender at such place or places of the Notes to be redeemed; (iv) that, on the
date fixed for redemption, the redemption price will become due and payable on
each such Note to be redeemed and that, after such date, interest thereon shall
cease to accrue; (v) that the conditions precedent to such redemption have
occurred (and such notice shall describe the same); and (vi) in the case of a
partial redemption, the aggregate principal amount of the Notes to be redeemed
and the aggregate principal amount of the Notes that will be outstanding after
such partial redemption. In addition, in the case of a partial redemption, the
notice shall specify the serial numbers of the Notes called for
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redemption. The Fiscal Agent shall send a copy of such notice of redemption to
the Bank.
7. The Fiscal Agent, at its corporate trust office in The City of New
York, is hereby authorized, in accordance with the provisions of this Section 7,
from time to time to authenticate and deliver Notes in exchange for or in lieu
of Notes that become mutilated, destroyed, stolen or lost, upon payment of such
expenses, including a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto, as may be incurred in connection
therewith, and in each case on such terms as to indemnity and, in the case of
destruction, loss or theft, such evidence of such destruction, loss or theft, as
the Bank and the Fiscal Agent may require. In every case of mutilation of a
Note, the Holder shall surrender to the Fiscal Agent at its corporate trust
office in The City of New York the Note so mutilated. Each Note authenticated
and delivered in exchange for or in lieu of any such Note shall carry all the
rights that were carried by such Note, including any rights to interest accrued
and unpaid and to accrue. In case any Note which has matured or is about to
mature or has been redeemed or is about to be redeemed shall become mutilated,
destroyed, stolen or lost, the Bank may authorize payment of the same.
8. The Fiscal Agent accepts its obligations as are herein and in the
Notes set forth, upon the terms and conditions hereof and thereof, including the
following, to all of which the Bank agrees and to all of which the rights
hereunder of the Holders from time to time of Notes shall be subject.
(a) The Fiscal Agent shall be entitled to the compensation to be
agreed upon with the Bank for all services rendered by the Fiscal Agent, and the
Bank agrees promptly to pay such compensation and to reimburse the Fiscal Agent
for the reasonable expenses (including the reasonable compensation and expenses
of its agents and counsel) incurred by the Fiscal Agent in connection with the
services rendered by it hereunder. The Bank agrees to indemnify the Fiscal
Agent and to hold it harmless against any loss, liability or expense (including
the costs and expenses of defending against any claim of liability) incurred
without negligence or bad faith on the part of the Fiscal Agent arising out of
or in connection with its acting as agent of the Bank hereunder.
(b) In acting under this Agreement and in connection with the Notes,
the Fiscal Agent is acting solely as agent of the Bank, and the Fiscal Agent
does not assume any obligation or relationship of agency or trust for or with
any of the owners or Holders of Notes, except that all
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funds held by the Fiscal Agent for payment of principal of or interest on the
Notes shall be held in trust by it but need not be segregated from other funds
except as required by law or as set forth herein or in the Notes and shall be
applied as set forth herein and in the Notes; provided, however, that money paid
by the Bank to the Fiscal Agent for the payment of principal of or interest on
the Notes remaining unclaimed at the end of two years after such principal or
interest shall have become due and payable shall be repaid to the Branch upon
the Bank's request as provided and in the manner set forth in the Notes,
whereupon the aforesaid trust shall terminate and all liability of the Fiscal
Agent with respect thereto shall cease, and the Holder of such Note must
thereafter look solely to the Bank for payment thereof.
(c) The Fiscal Agent may consult with one or more counsel, which may
include such agent's in-house counsel or counsel for the Bank, and the written
opinion of such counsel shall be full and complete authorization and protection
in respect of any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the opinion of such counsel.
(d) The Fiscal Agent shall be protected and shall incur no liability
for or in respect of any action in good faith taken, omitted or suffered by it
in reliance upon any Note, instrument of transfer, notice, direction, consent,
certificate, affidavit, statement or other paper or document believed by it in
good faith to be genuine and to have been signed or presented by the proper
parties.
(e) The Fiscal Agent and its officers, directors and employees may
become the owner of, or acquire any interest in, any Notes, with the same rights
that it or they would have if it or they were not the Fiscal Agent or officers,
directors or employees thereof, and may engage or be interested in any financial
or other transaction with the Bank, as freely as if it or they were not the
Fiscal Agent or officers, directors or employees thereof.
(f) The Fiscal Agent shall not be under any liability for interest on
any moneys at any time received by it pursuant to any of the provisions of this
Agreement or of the Notes except such interest as it may agree with the Bank to
pay thereon.
(g) The recitals contained herein and in the Notes (except in the
Fiscal Agent's certificates of authentication) shall be taken as the statements
of the Bank and the Fiscal Agent assumes no responsibility for the correctness
of the same. The Fiscal Agent does not make any representation as to the
validity or sufficiency of this
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Agreement (except for its due authorization, execution and delivery hereof), or
the Notes (except for its certificate of authentication thereon). The Fiscal
Agent shall not be accountable for the use or application by the Bank of the
proceeds of any Notes authenticated and delivered by the Fiscal Agent in
conformity with the provisions of this Agreement.
(h) The Fiscal Agent shall be obligated to perform such duties and
only such duties as are herein and in the Notes specifically set forth and no
implied duties or obligations shall be read into this Agreement or the Notes
against the Fiscal Agent. The Fiscal Agent shall not be under any obligation to
take any action hereunder which may tend to involve it in any expense or
liability, the payment of which is not, in its reasonable opinion, assured.
(i) Unless herein or in the Notes otherwise specifically provided, any
order, certificate, notice, request, direction or other communication by the
Bank made or given under any provision of this Agreement shall be sufficient if
signed by the Chairman, the President, a Vice Chairman or any Vice President.
(j) No provision Of this Agreement shall be construed to relieve the
Fiscal Agent from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct or that of its officers, directors
or employees.
9. (a) The Bank agrees that, until none of the Notes authenticated and
delivered hereunder is outstanding or until moneys sufficient for the payment of
all principal of and interest on all outstanding Notes shall have been made
available at the principal corporate trust office of the Fiscal Agent and any
remaining balance thereof shall have been returned to the Bank as provided
herein and in the Notes, there shall at all times be (i) a Fiscal Agent in
respect of the Notes having offices in The City of New York, which shall be a
bank, trust company or other entity doing business under the laws of the United
States or any state thereof, in good standing and authorized under such laws to
act as such agent, and (ii) a Note Registrar in The City of New York. The Bank
shall cause notice to be given to the Holders of any change in the identity of
the Fiscal Agent.
(b) The Fiscal Agent may at any time resign as Fiscal Agent by giving
written notice to the Bank of such intention on its part, specifying the date on
which its desired resignation shall become effective; provided, however, that
such date shall never be less than three months after the receipt of such notice
by the Bank, unless the Bank agrees to accept a shorter notice period. The
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Fiscal Agent hereunder may be removed at any time by the filing with it of an
instrument in writing signed on behalf of the Bank and specifying such removal
and the date when it is intended to become effective. Any such resignation or
removal shall take effect only upon the date of the appointment by the Bank or
other appointment effected pursuant to Section 9(c) hereof of a successor Fiscal
Agent and the acceptance of such appointment by such successor Fiscal Agent.
Upon its resignation or removal, the Fiscal Agent shall be entitled to the
payment by the Bank of compensation for the services rendered hereunder and to
reimbursement of all reasonable expenses incurred prior to the date of such
resignation or removal (including the reasonable compensation and expenses of
its agents and counsel) incurred in connection with the services rendered by the
Fiscal Agent hereunder.
(c) If at any time the Fiscal Agent shall resign, be removed or become
incapable of acting, or shall be insolvent, consent to the appointment of a
receiver of all or any substantial part of its property or admit in writing its
inability to pay or meet its debts as they mature, or if a receiver of the
Fiscal Agent or of all or any substantial part of its property shall be
appointed, or any public officer shall take charge or control of it or of its
property or affairs, for the purpose of rehabilitation, conservation or
liquidation, a successor Fiscal Agent, qualified as aforesaid, shall be
appointed by the Bank by an instrument in writing. Upon the appointment as
aforesaid of a successor Fiscal Agent and acceptance by it of such appointment,
the Fiscal Agent so superseded shall cease to be such Fiscal Agent hereunder. If
no successor Fiscal Agent shall have been so appointed, or if so appointed,
shall not have accepted appointment as hereinafter provided, any Holder of a
Note, on behalf of itself and all others similarly situated, or the Fiscal Agent
may petition any court of competent jurisdiction for the appointment of a
successor Fiscal Agent.
(d) Any successor Fiscal Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Bank an instrument
accepting such appointment hereunder, and thereupon such successor Fiscal Agent,
without any further act, deed or conveyance, shall become vested with all the
authority, rights, powers, trusts, immunities, duties and obligations of such
predecessor with like effect as if originally named as such Fiscal Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay over
and such successor Fiscal Agent shall be entitled to receive, all money,
securities or other property on deposit
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with or held by such predecessor, as such Fiscal Agent hereunder.
(e) Any corporation or bank (i) into which the Fiscal Agent may be
merged or converted, (ii) with which the Fiscal Agent may be consolidated, (iii)
resulting from any merger, conversion or consolidation to which the Fiscal Agent
shall be a party, (iv) to which the Fiscal Agent shall sell or otherwise
transfer all or substantially all its assets and business or (v) to which the
Fiscal Agent shall sell or otherwise transfer all or substantially all its
corporate trust business, provided that it shall be qualified as aforesaid,
shall be the successor to such Fiscal Agent under this Agreement without the
execution or filing of any document or any further act on the part of either
party hereto.
10. The Branch and the Bank, acting through the Branch, hereby appoint
the Fiscal Agent as the authorized agent thereof upon whom process may be served
in any action arising out of or based on the Notes which may be instituted in
the Supreme Court of the State of New York or the United States District Court
for the Southern District of New York, in either case in the Borough of
Manhattan, The City of New York, by any Holder of a Note. The Branch and the
Bank, acting through the Branch, hereby expressly consent to the jurisdiction of
any such court. The Bank hereby agrees to reimburse the Fiscal Agent for
out-of-pocket expenses incurred by the Fiscal Agent in its capacity as agent for
service of process hereunder.
11. In connection with the original issuance and delivery of the Notes
at the closing as provided in the Underwriting Agreement, the Bank will bear and
pay any stamp or other similar duties or taxes.
12. (a) The Bank shall not enter into any transaction (whether by way
of reconstruction, reorganization, consolidation, amalgamation, merger,
transfer, sale or otherwise) whereby all or substantially all of its
undertaking, property and assets would become the property of any other person
or, in the case of any such amalgamation, of the continuing company resulting
therefrom, unless, but may do so if:
(i) the successor bank is an amalgamated bank resulting from the
amalgamation of the Bank with one or more other Canadian
chartered banks under an amalgamation agreement having the force
of law under the Bank Act (Canada) and by virtue of which the
successor bank is subject to all duties, liabilities and
-13-
obligations of the Bank under this Agreement and the Notes; or
(ii) the successor bank is a corporation lawfully entitled to acquire
and operate the undertaking and assets of the Bank and:
(A) the successor bank shall execute, prior to or
contemporaneously with the consummation of such transaction, an
amendment to this Agreement and such other instruments (if any)
as are, in the opinion of independent counsel to the Bank (which
may be counsel (other than an employee of the Bank) which
regularly provides services to the Bank), necessary or advisable
to evidence the assumption by the successor bank of liability for
the due and punctual payment of all the Notes and interest
thereon and the covenant of the successor bank to pay the same
and its agreement to observe and perform all the covenants and
obligations of the Bank under this Agreement;
(B) such transaction shall, in the opinion of independent
counsel to the Bank (which may be counsel (other than an employee
of the Bank) which regularly provides services to the Bank), be
upon terms substantially preserving and not materially impairing
any of the rights of the Holders under this Agreement; and
(C) no condition or event shall exist in respect of the
successor bank at the time of such transaction and after giving
full effect thereto which constitutes or would constitute an
Event of Default under the Notes.
(b) Whenever the conditions of Section 12(a) above have been duly
observed and performed, the successor bank shall possess and from time to time
may exercise each and every right and power of the Bank under this Agreement and
the Notes, and any act or proceeding by any provision of this Agreement or the
Notes required to be done or performed by any directors or officers of the Bank
may be done and performed with like force and effect by the like directors or
officers of such successor bank.
-14-
13. This Agreement and the Notes shall be governed by, and construed
in accordance with, the laws of the State of New York.
14. This Agreement and/or the Notes may be amended by the parties
hereto, without the consent of the Holder of any Note, for the purposes of
curing any ambiguity, or of correcting or supplementing any defective or
inconsistent provisions contained herein or therein, or in any manner which the
parties may mutually deem necessary or desirable and which in any such case
shall not adversely affect the interests of the Holders of the Notes. The
Fiscal Agent shall not be required to enter into any amendment hereto or thereto
unless it shall have received a certificate of the Bank and a written opinion of
counsel (which may be counsel to the Bank) satisfactory to the Fiscal Agent,
each stating that such amendment is authorized by this Agreement or the Notes,
as the case may be.
15. All notices to the parties hereto shall be given by telecopy
(confirmed by letter), or by personal delivery, or by registered or certified
mail, return receipt requested, postage prepaid, addressed to such party as
follows:
Address
-------
The Bank ........................ Bank of Montreal,
Chicago Branch
c/o Bank of Montreal
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx, X0X 0X0
Attention: Xxxxxx X. Xxxxx
Secretary
Telecopier No.: (000) 000-0000
The Fiscal Agent ................ Bank of Montreal Trust Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx XxXxxxxxxx
General Manager
Telecopier No.: (000) 000-0000
or at any other address of which any of the foregoing shall have notified the
others in writing. Any such notice shall be effective upon receipt.
-15-
16. This Agreement may be executed by each party in separate
counterparts, each such counterpart, when so executed and delivered, will be
deemed to be an original. Such counterparts shall together constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
BANK OF MONTREAL, acting through
its CHICAGO BRANCH
by /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: Senior Vice-President and
Corporate Controller
BANK OF MONTREAL TRUST COMPANY
[SEAL] by /s/ Xxx Xxxxxxx
-------------------------------------
Name: Xxx Xxxxxxx
Title: Assistant Vice President
ATTEST:
by /s/ XXXXXXX RUSAKOUISKY
---------------------------------
Name: XXXXXXX RUSAKOUISKY
Title: Assistant Secretary
-16-
EXHIBIT A
BANK OF MONTREAL,
CHICAGO BRANCH
Authentication Order
April 6, 1995
Bank of Montreal Trust Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Pursuant to Section 1 of the Fiscal and Paying Agency Agreement dated
as of April 6, 1995 (the "Agreement"), between Bank of Montreal, acting through
its Chicago Branch (the "Bank"), and you, as Fiscal Agent, you are hereby
instructed to authenticate, in the manner provided by the Agreement,
$300,000,000 aggregate principal amount of the Bank's 7.80% Subordinated Notes
due 2007 (the "Notes") heretofore duly executed by duly authorized officers of
the Bank and delivered to you as provided in the Agreement, and to make
available said authenticated Notes at 10:00 A.M. on April 6, 1995 to or upon
the order of The Depository Trust Company. The Notes are to be registered in the
name of Cede & Co. and are to be delivered in the form of two Global Notes (as
defined in the Agreement), each of which shall be in the principal amount of
$150,000,000, in definitive registered form.
BANK OF MONTREAL, acting through its
CHICAGO BRANCH
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT B
[FORM OF FACE OF NOTE]
THIS NOTE IS NOT REQUIRED TO BE, AND IS NOT, REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED.
[IF A GLOBAL NOTE, INSERT - THIS NOTE IS ISSUED IN GLOBAL FORM AND REGISTERED IN
THE NAME OF A DEPOSITARY OR SUCH DEPOSITARY'S NOMINEE. UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM IN ACCORDANCE WITH
THE PROVISIONS OF THE FISCAL AGENCY AGREEMENT AND THE TERMS OF THIS NOTE, THIS
NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF
THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS NOTE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION ("DTC"), TO THE BRANCH OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE, OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS NOTE HAS BEEN ISSUED THROUGH THE CHICAGO BRANCH OF BANK OF MONTREAL AND IS
NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION.
THIS NOTE IS NOT A DEPOSIT INSURED UNDER THE CANADA DEPOSIT INSURANCE
CORPORATION ACT.
No. _________________________________ $_______________________________________
BANK OF MONTREAL, Chicago Branch
CUSIP 00000XXX0
7.80% SUBORDINATED NOTE
DUE 2007
(subordinated indebtedness )
BANK OF MONTREAL, a Canadian chartered bank acting through its Chicago
Branch (hereinafter called the "Bank", which term includes any successor
corporation under the Agreement referred to on the reverse hereof), for value
received, hereby promises to pay to _____________________________ or registered
assigns, upon presentation and surrender of this Note, the principal sum of
__________________________ United States dollars (U.S. $_________________), on
April 1, 2007 (unless earlier redeemed on the terms and in the manner described
on the reverse hereof), and to pay interest thereon from the date hereof or from
the most recent date that interest has been paid or duly provided for,
semiannually in arrears on April 1 and October 1 of each year, commencing on
October 1, 1995, and on the date of maturity (or, if any such date is not a
Business Day, on the next succeeding Business Day) (the "Interest Payment
Dates") at the rate of 7.80% per annum until the principal hereof is paid or
made available for payment, and at the same rate per annum on any overdue
principal and (to the extent that the payment of such interest shall be legally
enforceable) on any overdue installment of interest. Interest on the Notes will
be calculated on the basis of a 360-day year of twelve 30-day months. The term
"Business Day" means a day on which banks in The City of New York are not
authorized or required by law or executive order to be closed.
The principal of and interest on the Notes will be payable in U.S.
dollars or in such other coin or currency of the United States of America as at
the time of payment is legal tender for the payment of public and private debts.
The principal of the Notes will be payable, on the date of maturity or
redemption prior to maturity by check, drawn on a bank located in The City of
New York, upon presentation and surrender of the Notes at such principal office
of the Bank's Chicago Branch (the "Branch"), if then maintained, or at the
office of the Fiscal Agent referred to on the reverse hereof in The City of New
York, or at such other place or places as may be designated from time to time by
the Fiscal Agent or the Bank. Interest on the Notes will be payable by check,
drawn on a bank located in The City of New York, to the persons in whose names
such Notes are registered at the close of business on March 15 and September 15,
as the case may be, next preceding each Interest Payment Date (each a "Regular
Record Date"). Interest on the Notes will be paid by check mailed from the
Fiscal Agent's principal office in The City of New York, or any other designated
place or places to the persons entitled to receive such interest at
-2-
the address for each such person appearing on the Note Register referred to on
the reverse hereof at the close of business on the relevant Record Date (which
term is defined as any Regular Record Date or Special Record Date, as
hereinafter defined, as the case may be). Notwithstanding the foregoing, the
Holder of a Note may by written notice received by the Fiscal Agent prior to any
Record Date elect to, or a Depositary, at any time such Depositary or its
nominee is the registered holder of a Global Note shall, receive payments of
interest due subsequent to such Record Date (or principal due on the date of
maturity or redemption prior to maturity if such Holder shall have surrendered
such Note) by wire transfer in immediately available funds to a bank account in
The City of New York designated in such notice. The term "Holder" when used
herein means the person in whose name the Note is registered in the Note
Register.
Any such interest not so punctually paid or duly provided for
("Defaulted Interest") will forthwith cease to be payable to the Holder on the
Regular Record Date and may be paid to the person in whose name this Note (or
one or more predecessor Notes) is registered at the close of business on a
special record date to be fixed by the Bank ("Special Record Date") for the
payment of such Defaulted Interest. The Bank shall notify the Fiscal Agent of
the establishment of such Special Record Date at least 15 days prior to the date
thereof, and the Fiscal Agent shall cause notice thereof to be mailed
first-class, postage prepaid, to each Holder of a Note at such Holder's address
as it appears on the Note Register not less than 10 days prior to such Special
Record Date. Notwithstanding the foregoing, Defaulted Interest may be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes may be listed, and upon such notice
as may be required by such exchange.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Fiscal Agent, by the manual signature of an authorized officer, this Note
shall not be entitled to any benefit under the Agreement or be valid or
obligatory for any purpose.
-3-
IN WITNESS WHEREOF, the Bank has caused this instrument to be duly
executed under its corporate seal.
Dated: April 6, 1995 BANK OF MONTREAL, acting through its
Chicago Branch
by
-------------------------------------
[SEAL] Title:
---------------------------------
by
-------------------------------------
Title:
---------------------------------
-4-
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Fiscal
and Paying Agency Agreement.
Date of Authentication: April 6, 1995
BANK OF MONTREAL TRUST COMPANY,
as Fiscal Agent,
by
-------------------------------------
Authorized Officer
-5-
[FORM OF REVERSE OF NOTE]
BANK OF MONTREAL, Chicago Branch
7.80% SUBORDINATED NOTE
DUE 2007
1. This Note is one of a duly authorized issue of notes of the Bank
(herein called the "Notes"), limited in aggregate principal amount to U.S.
$300,000,000, issued and to be issued under a Fiscal and Paying Agency Agreement
dated as of April 6, 1995 (herein called the "Agreement"), between the Bank and
Bank of Montreal Trust Company as fiscal and paying agent (herein called the
"Fiscal Agent", which term includes any successor fiscal agent under the
Agreement), which Agreement was entered into by the Bank for the benefit of the
Holders from time to time of the Notes. Reference is hereby made to the
Agreement, copies of which are on file and available for inspection at the
principal office of the Fiscal Agent located in The City of New York, for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Bank, the Fiscal Agent and the Holders of the Notes and of the
terms upon which the Notes are, and are to be, authenticated and delivered. The
Notes are issuable only in fully registered form in denominations of U.S.
$125,000 and integral multiples of U.S. $1,000 in excess thereof.
The Notes constitute unsecured obligations of the Branch and the Bank
and rank pari passu among themselves and are subordinate to certain other
obligations of the Branch and the Bank as a whole as described in Section 7
hereof.
2. Pending the preparation of definitive Notes, the Bank may execute
and, upon its request, the Fiscal Agent shall authenticate and deliver,
temporary Notes in any authorized denominations and having the same terms and
substantially in the form of the definitive Notes but with such omissions,
insertions and variations as may be appropriate for temporary Notes, all as may
be determined by the Bank, as evidenced by its execution thereof. Every such
temporary Note shall be executed by the Bank and shall be authenticated by the
Fiscal Agent upon the same conditions and in substantially the same manner, and
with the same effect, as the definitive Notes. Without unreasonable delay
the Bank shall execute and deliver to the Fiscal Agent definitive Notes and
thereupon any or all temporary Notes may be surrendered in exchange for
definitive Notes at the corporate trust office of the Fiscal Agent in The City
of New York and the Fiscal Agent shall authenticate and deliver in exchange for
such temporary Notes an equal aggregate principal amount of definitive Notes.
Such exchange, in cases not involving also a registration of transfer or
exchange, shall be made by the Bank at its own expense and without any charge
therefor. Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits under the Agreement and the Notes as definitive
Notes authenticated and delivered under the Agreement.
At the option of the Holder, and subject to the restrictions contained
herein and in the Agreement, Notes may be transferred or exchanged for a like
aggregate principal amount of Notes of different authorized denominations, upon
surrender of the Notes for exchange or registration of transfer at the corporate
trust office of the Note Registrar in The City of New York or at the office of
any other agent designated by the Bank for such purpose in accordance with the
terms of the Agreement and the Notes. The Bank covenants with the Holder hereof
that so long as this Note remains outstanding or until moneys sufficient for the
payment of all principal of and interest on this Note shall have been made
available at the office of the Fiscal Agent for at least a period of two years
after the date such payment was or became due and payable, there shall at all
times be (i) a Fiscal Agent in respect of the Notes having offices in The City
of New York, which shall be a bank, trust company or other entity doing business
under the laws of the United States or any state thereof, in good standing and
authorized under such laws to act as such agent and (ii) a register (the "Note
Register") to be located at the principal office of the Fiscal Agent in The City
of New York in which the Fiscal Agent, on behalf of the Bank and subject to such
additional regulations as the Bank may from time to time prescribe, shall
provide for the registration of the Notes and the registration of transfers and
exchanges of Notes. Every Note surrendered for exchange or presented for
registration of transfer shall (if so required by the Bank or the Note
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer, in form satisfactory to the Bank and the Note Registrar, as the case
may be, duly executed by the Holder thereof or his attorney duly
-2-
authorized in writing. Notes issued upon any such transfer will be executed by
the Bank and authenticated by the Fiscal Agent, registered in the name of the
designated transferee or transferees and delivered at the corporate trust office
of the Note Registrar in The City of New York or mailed, at the request, risk
and expense of, and to the address requested by, the designated transferee or
transferees. No Note may be registered in the name of a resident of Canada
prior to July 6, 1995.
Notwithstanding any other provision of this Note or the Agreement to
the contrary, this Note, if in global form (a Note in such form being referred
to herein as the "Global Note"), may not be transferred to, or registered or
exchanged for Notes registered in the name of any person other than The
Depository Trust Company (or another depositary located in the United States in
whose name, or in the name of such depositary's nominee, the Global Note is
registered) (a "Depositary") or any nominee thereof, and no such transfer may be
registered, unless (x) the Depositary with respect to such Global Note (A)
notifies the Bank that it is unwilling or unable to continue as depositary for
the Global Note or (B) ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, (y) the Bank delivers to the Fiscal
Agent a written notice executed by a duly authorized officer of the Bank that
the Global Note shall be exchangeable for definitive Notes or (z) the Bank shall
fail to make any payment of principal of, or any interest or additional amount
on, the Notes when due. In any such case, this Note shall be exchangeable for
definitive Notes, as provided in the Agreement.
No service charge (other than any cost of delivery) shall be imposed
for any registration of transfer or exchange of Notes, but the Bank may require
payment of a sum sufficient to reimburse the Bank for any stamp or other tax or
other governmental charge that may be imposed in connection with any
registration of transfer or exchange of definitive Notes (or require the
presentation of evidence that such tax or charge has been paid).
Neither the Bank nor the Fiscal Agent shall be required (i) to issue,
register the transfer of or exchange any Note during a period beginning at the
opening of business 15 days before the day of mailing of a notice of redemption
of Notes to the Holders thereof and ending on a
-3-
day of such mailing, or (ii) to register the transfer of or exchange any Note
selected for redemption.
3. All payments of principal of and interest on the Notes will be made
without withholding or deduction for, or on account of, any present or future
taxes, duties, assessments or governmental charges of whatever nature imposed or
levied by or on behalf of Canada, or any province, territory or political
subdivision thereof, or any authority therein or thereof having power to tax,
unless the withholding or deduction of such taxes, duties, assessments or
governmental charges is required by law or by the administration of such law. In
that event, the Bank will pay such additional amounts ("Additional Amounts") as
may be necessary in order that the net amounts received by the Holders of the
Notes after such withholding or deduction shall equal the respective amounts of
principal or interest which would have been receivable in respect of the Notes
in the absence of such withholding or deduction, except as provided in the last
sentence of the last paragraph of this Section 3 and except that no such
Additional Amounts shall be payable with respect to any Note presented for
payment:
(i) by or on behalf of a Holder who is liable for such taxes, duties,
assessments or governmental charges in respect of such Note (a) by reason
of his being a person with whom the Bank is not dealing at arm's length for
the purposes of the Income Tax Act (Canada) or (b) by reason of his having
a connection with Canada other than the mere holding, use or ownership or
deemed holding, use or ownership of such Note;
(ii) by or on behalf of a Holder who would not be liable for or
subject to such withholding or deduction by making a declaration of
non-residence or other similar claim for exemption to the relevant tax
authority; or
(iii) more than 30 days after the Relevant Date except to the extent
that the Holder thereof would have been entitled to Additional Amounts on
presenting the same for payment on the last day of such period of 30 days.
As used herein "Relevant Date" shall mean whichever is the later of
(a) the date on which such payment
-4-
first becomes due or (b) if the full amount of the moneys payable has not been
received by the Fiscal Agent on or prior to such date, the date on which the
full amount of such moneys having been so received, notice to that effect shall
have been duly provided in accordance with the procedures set forth in Section 5
hereof.
Any reference herein to principal or interest shall be deemed also to
refer to any Additional Amounts which may be payable under this provision.
If the Bank (whether at the Branch or otherwise) shall determine that
it (whether at the Branch or otherwise) has or will become obligated to pay
Additional Amounts in respect of a Note pursuant to this Section 3, then the
Bank, acting through the Branch, may, at its option and with the prior approval
of the Superintendent of Financial Institutions of Canada (the
"Superintendent"), redeem such Note at a redemption price equal to its principal
amount plus unpaid accrued interest to the date of redemption, if any. The date
of any such redemption shall be any Interest Payment Date that falls after April
7, 2000 and in any case an Interest Payment Date falling not earlier than the
Interest Payment Date immediately preceding the date on which the Bank (whether
at the Branch or otherwise) did or will become obligated to pay such Additional
Amounts. Whether the conditions precedent to the right of the Bank to redeem
such Note pursuant to the immediately preceding sentence have occurred shall be
determined by the Bank on the basis of such relevant evidence as shall be
available to the Bank and on the basis of the laws in effect on the date of such
determination or to become effective on or before the next succeeding Interest
Payment Date following the date of redemption. Prior to a redemption of any Note
under this Section 3, the Branch or the Bank shall certify to the Fiscal Agent
that it has made or will be required to make such a payment of Additional
Amounts with respect to such Note and upon receipt of such certification, the
Fiscal Agent shall promptly give a notice of redemption relating to such Note as
described in Section 4(b) hereof to the Holder thereof. Notwithstanding any
other provision contained in this Note concerning timing of the giving of notice
of redemption, if any Additional Amounts are required to be paid in respect of
any Note, but such payments are not permitted by applicable law, the Bank,
acting through the Branch, will so certify to the Fiscal Agent on or promptly
following the. Bank's receipt of notice thereof, to cause
-5-
notice thereof to be given promptly to the Holder of such Note and, subject to
receipt of the prior approval of the Superintendent, to redeem such Note at its
principal amount plus unpaid accrued interest, if any, on the first Interest
Payment Date for such Note on or after the later of (i) 30 days after such
certification, but not prior to the Interest Payment Date immediately preceding
the Interest Payment Date on which such Additional Amounts would otherwise
become due, and (ii) April 7, 2000 and no such Additional Amounts will be paid
during the interim.
4. (a) The Notes may not be redeemed for any purpose prior to the
first Interest Payment Date after April 7, 2000. On such Interest Payment Date
or any Interest Payment Date thereafter, the Notes may be redeemed by the Bank,
but only in the circumstances described in the last paragraph of Section 3
hereof.
(b) Notices of redemption shall be given in the name and at the
expense of the Bank by mail, first-class, postage prepaid, to each Holder of a
Note affected, at the address shown for such Holder on the Note Register. Notice
shall be given once not more than 60 days nor less than 30 days prior to the
date fixed for redemption.
Notices of redemption will specify: (i) the date fixed for redemption;
(ii) the redemption price; (iii) the place or places of payment and that payment
will be made upon presentation and surrender at such place or places of the
Notes to be redeemed; (iv) that, on the date fixed for redemption, the
redemption price will become due and payable on each such Note to be redeemed
and that, after said date, interest thereon shall cease to accrue; (v) that the
conditions precedent to such redemption have occurred (and such notice shall
describe the same); and (vi) in the case of a partial redemption, the aggregate
principal amount of the Notes to be redeemed and the aggregate principal amount
of the Notes that will be outstanding after such partial redemption. In
addition, in the case of a partial redemption, the notice shall specify the
serial numbers of the Notes called for redemption. The Fiscal Agent shall send a
copy of such notice of redemption to the Bank.
(c) If notice of redemption has been given as provided in Section 4(b)
above, the Notes with respect to which such notice has been given shall become
due and payable on the date, at the place or places and at the
-6-
redemption price stated in such notice, and on and after such date (unless the
Bank shall default in the payment of such Notes at the redemption price on such
date) interest on the Notes so called for redemption shall cease to accrue. Upon
presentation and surrender of such Notes at a place of payment, such Notes shall
be paid and redeemed by the Bank at the redemption price.
(d) After April 7, 2000, the Bank will have the right, with the prior
approval of the Superintendent, to purchase the Notes in the market or by tender
or by private contract at any price. All Notes, which are so purchased by or on
behalf of the Bank will forthwith be cancelled and accordingly may not be
reissued or resold.
5. Where this Note provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if such notice has been given by mail, first-class postage prepaid, by the
Fiscal Agent to each Holder affected by such event, at his address as it appears
on the Note Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. 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. Any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given to a Holder, whether or not such
Holder receives such notice. Where this Note or the Agreement provides for
notice in any manner, such notice may be waived in writing by the person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Fiscal Agent, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service in the United States, it shall be impractical to mail notice of any
event to Holders when such notice is required to be given pursuant to any
provision, of this Note or the Agreement, then any manner of giving such notice
as shall be satisfactory to the Fiscal Agent shall be deemed to be sufficient
giving of such notice.
-7-
6. An "Event of Default" shall occur only if the Bank shall have
become insolvent or be wound-up, as provided for in the Bank Act of Canada. The
Branch or the Bank will promptly notify the Fiscal Agent, which will promptly
notify the Holders, of the occurrence of an Event of Default.
If an "Event of Default" shall occur and be continuing, the Holder of
any Note may, at its option, declare the principal of and unpaid accrued
interest on such Note to the date payment is duly provided for, to be due and
payable on the seventh day (the "Acceleration Date") after written notice of
such declaration is delivered to the Fiscal Agent, unless such Event of Default
shall have been cured by the Bank prior to the Acceleration Date. There is no
right of acceleration in the case of a default in the payment of interest on any
Note or a default in the performance by the Bank of any covenant contained in
the Notes or the Agreement; provided, however, that the Holder hereof shall have
the right to institute suit against the Branch or the Bank for the enforcement
of any payment of interest due on this Note (whether or not the Bank has set a
Special Record Date for Defaulted Interest) or any other covenant contained in
the Notes or the Agreement.
7. In the event of the insolvency or winding-up of the Bank, as
provided for in the Bank Act of Canada the indebtedness evidenced by the Notes
will be subordinate in right of payment to the prior payment in full of the
deposit liabilities of the Branch and the Bank as a whole and all other
liabilities of the Branch and the Bank as a whole except liabilities which by
their terms rank in right of payment equally with or subordinate to the Notes.
In the event of the cessation of the operations of the Branch or upon the taking
of possession of the business and property of the Branch by the Commissioner of
Banks and Trust Companies of the State of Illinois at any time when no Event of
Default has occurred, the Holders will have no right to accelerate the payment
of principal and interest on the Notes but will only be entitled to proceed
against the Bank for payment of sums as they become due under the terms of the
Notes, subject to the subordination provisions described in the preceding
sentence. The Bank covenants that neither the Bank nor the Branch has created
and neither of them will create any indebtedness subordinate in right of payment
to the deposit liabilities of the Bank which, on the insolvency or winding-up of
the Bank, would rank for payment prior to
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the Notes, other than liabilities having priority to the Notes by virtue of any
law now or hereafter in force.
The Notes rank pari passu with the Bank's outstanding subordinated
debt.
8. (a) With the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes at the time outstanding, the Bank and
the Fiscal Agent may amend the Agreement or the Notes for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of the Agreement or the Notes or of modifying in any manner the rights of the
Holders; provided, however, that no such amendment shall, without the consent of
the Holder of each outstanding Note affected thereby:
(i) change the stated maturity of the principal of, or any installment
of interest on, any Note, or change the definition of Interest Payment
Date, or reduce the principal amount of or interest rate on any Note or
reduce any amount payable upon the redemption thereof, or change a place of
payment where, or the coin or currency in which, the principal of any Note
or the 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
modify the subordination provisions of the Notes in any manner adverse to
the Holders; or
(ii) reduce the percentage in principal amount of the outstanding
Notes, the consent of whose Holders is required for any such amendment
provided for in the Notes; or
(iii) modify any of the provisions of this subsection, except to
increase any such percentage or to provide that certain other provisions of
the Agreement or the Notes cannot be modified without the consent of the
Holder of each Note affected thereby.
It shall not be necessary for the Holders under this Section 8 to
approve the particular form of any proposed amendment, but it shall be
sufficient if such Holders shall approve the substance thereof.
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(b) The Agreement or the Notes may be amended by the parties to the
Agreement, without the consent of the Holder of any Note, for the purposes of
curing any ambiguity, or of correcting or supplementing any defective or
inconsistent provisions contained therein, or in any manner which the parties
may mutually deem necessary or desirable and which in any such case shall not
adversely affect the interests of the Holders of the Notes.
(c) Promptly after the execution of any amendment to the Agreement or
the implementation of any modification or amendment of the terms and conditions
of the Notes, a notice in writing of such amendment or modification shall be
given by the Bank or by the Fiscal Agent on behalf of and at the expense of the
Bank, to each Holder by mail, first-class postage prepaid, to each such Holder's
address. The failure to give such notice on a timely basis shall not invalidate
such amendment or modification, but the Bank shall cause the Fiscal Agent to
give such notice as soon as practicable upon discovering such failure or upon
any impediment to the giving of such notice being overcome.
9. The Bank, the Fiscal Agent and any agent of the Bank or the Fiscal
Agent may treat, prior to due presentation for registration of transfer, the
person in whose name a Note is registered, as the owner thereof for all
purposes, whether or not the Note be overdue, and neither the Bank, the Fiscal
Agent nor any such agent shall be affected by notice to the contrary.
10. If any mutilated Note is surrendered to the Fiscal Agent, the Bank
shall execute, and the Fiscal Agent shall authenticate and deliver in exchange
therefor, a new Note of like tenor and principal amount, bearing a number not
contemporaneously outstanding.
If there be delivered to the Bank and the Fiscal Agent (i) evidence to
their satisfaction of the destruction, loss or theft of any Note, and (ii) such
security or indemnity as may be required by them to hold each of them and any
agent of each of them harmless, then, in the absence of notice to the Bank or
the Fiscal Agent that such Note has been acquired by a bona fide purchaser, the
Bank shall execute, and upon its request the Fiscal Agent shall authenticate and
deliver in lieu of any such destroyed, lost or stolen Note, a new Note of like
tenor and principal
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amount and bearing a number not contemporaneously outstanding.
Upon the issuance of any new Note under this Section 10, 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 the expenses of the Fiscal Agent) connected therewith.
Every new Note issued pursuant to this Section 10 in lieu of any
destroyed, lost or stolen Note, shall constitute an original additional
contractual obligation of the Bank, whether or not the destroyed, lost or stolen
Note shall be at any time enforceable by anyone.
Any new Note delivered pursuant to this Section 10 shall bear interest
commencing from the date of authentication of such new Note, which shall be as
of a date such that neither gain nor loss in interest shall result from such
exchange.
The provisions of this Section 10 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 Notes.
11. The Branch and the Bank, acting through the Branch, have appointed
the Fiscal Agent as the authorized agent thereof upon whom process may be served
in any action arising out of or based on the Notes which may be instituted in
the Supreme Court of the State of New York or the United States District Court
for the Southern District of New York, in either case in the Borough of
Manhattan, The City of New York, by any Holder. The Branch and the Bank, acting
through the Branch, have expressly consented to the jurisdiction of any such
court.
12. The Agreement and the Notes appertaining thereto shall be governed
by and construed and interpreted in accordance with the laws of the State of New
York.
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FOR VALUE RECEIVED, the undersigned hereby sell (s), assign(s) and
transfer(s) unto ______________________________ (Please Insert Social
Security or Other Identifying Number of Assignee ______________________________)
the within Note of Bank of Montreal, acting through its Chicago Branch, and does
hereby irrevocably constitute and appoint _______________________ attorney to
transfer the same on the Note Register as maintained by the Fiscal Agent on
behalf of Bank of Montreal, acting through its Chicago Branch, with full power
of substitution in the premises.
Dated:
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Signature
NOTICE: The signature on this assignment must correspond with the name as
written upon the face of the written instrument in every particular, without
alteration or enlargement or any change whatsoever.
Guarantee of Signature(s)
Authorized Signature
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Name of Firm
-------------------------------------------
Date
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