AMENDMENT TO DEPOSIT AGREEMENT
EXHIBIT
10.1
AMENDMENT
TO DEPOSIT AGREEMENT
This
Amendment to the Deposit Agreement is made as of this 1st day of January, 2008
(together with all exhibits and schedules hereto, the “Amendment”), by and
between, Computershare Inc., a Delaware corporation (“Computershare”) and its
fully-owned subsidiary Computershare Trust Company, N.A., a federally chartered
trust company doing business at 000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 (the “Trust
Company”), and NB Capital Corporation, a Maryland corporation (the “Company”),
having an office at 000, xxx Xx Xx Xxxxxx xxxxx Xxxxx, 00x étage, Montréal,
Canada H3B 4L2 and National Bank of Canada, a Canadian chartered bank, having
an
office at 600, rue De La Gauche tière Ouest, 27e étage, Montréal, Canada H3B 4L2
(the “Bank”).
WHEREAS,
the
Company, the Bank, and The Bank of Nova Scotia Trust Company of New York, a
New
York banking corporation, are parties to a Deposit Agreement dated March 1998
(the “March 1998 Deposit Agreement”, and as amended hereby, the “Deposit
Agreement”), a copy of which is attached as Exhibit A hereto, pursuant to which
The Bank of Nova Scotia Trust Company of New York acts as the
depositary;
WHEREAS,
The
Bank of Nova Scotia Trust Company of New York is resigning as the depositary
effective January 1, 2008 and will cease performing any functions under the
March 1998 Deposit Agreement on such date;
WHEREAS,
the
Company and Bank wish to appoint the Trust Company as successor Depositary
and
Computershare as paying agent and processor
of all payments received or made by the Company or the Bank under the Deposit
Agreement;
WHEREAS,
the
Trust Company and Computershare will each separately provide specified services
covered by the Deposit Agreement and, in addition, the Trust Company may arrange
for Computershare to act on behalf of the Trust Company in providing certain
of
its services covered by the Deposit Agreement; and
WHEREAS,
the
Trust Company and Computershare agree to accept such appointments and provide
all services under the Deposit Agreement pursuant to the terms and conditions
thereof with the amendments thereto set forth in this Amendment;
NOW,
THEREFORE,
in
consideration of the terms and conditions contained herein, and intending to
be
legally bound hereby, the parties hereto agree to the following changes to
the
Deposit Agreement:
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1.
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The
Company hereby appoints the Trust Company as successor Depositary
under
the Deposit Agreement and appoints
Computershare as the service provider to the Trust Company and as
paying
agent and process of all payments received or made by or on behalf
of the
Company under the Deposit Agreement, and the Trust Company and
Computershare accept the respective appointments.
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2.
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Article
I - Definitions.
Article I of the Deposit Agreement is hereby amended as
follows:
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| (a) |
The
following new definition is added:
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“Depositary”
shall mean Computershare Trust Company, N.A. as successor Depositary under
the
Deposit Agreement, but shall also mean Computershare Trust Company, N.A. and
Computershare Inc. collectively in all instances in the Deposit Agreement in
which Computershare Inc. acts as service provider for Computershare Trust
Company, N.A.
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(b)
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The
definition of “Depositary’s Office” is hereby replaced with the
following:
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“Depositary’s
Office” shall mean the corporate office of the Depositary at which at any
particular time its business in respect to matters governed by this
Deposit Agreement shall be administered, which at the date of this
Deposit
Agreement is located at 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000.
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| (c) |
The
definition of “Xxxxxxx Xxxxx” is hereby deleted in its entirety.
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| 3. |
Section
2.01.
Section 2.01 is hereby amended as
follows:
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(a)
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The
first sentence is amended by adding the following after the word
“provided”: “, or shall be in such other form as may be agreed upon
between the Company and the
Depositary.”
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(b)
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The
paragraph beginning with the words “Receipts shall be in denominations of
any number” is amended by adding the following after the word “subject”:
“; it being understood by the parties that it shall be the obligation
of
the Company and the Bank to advise the Depositary of any such rules
and
regulations of any such securities
exchanges.”
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4.
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Section
2.06.
Section 2.06 is hereby amended by replacing subsection (b) with the
following: “(b) a sufficient open penalty surety bond satisfactory to the
Depositary and holding it and the Company
harmless”.
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5.
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Section
2.09.
Section 2.09 is hereby amended by adding the following new language
at the
end of the Section.
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The
Company or the Bank shall immediately notify the Depositary in writing of an
Exchange Event. In such case, the Company will determine if the Depositary
requires any regulatory licenses in Canada in order to perform the services
under the Deposit Agreement and shall provide the Depositary with written notice
of any such required licenses promptly upon such determination. The parties
hereto agree that the Depositary, upon its receipt of such notice, at its sole
discretion, shall have the right to (i) terminate this Deposit Agreement upon
not less than 60 days’ prior written notice to the Company or (ii) immediately
assign or subcontract the Deposit Agreement to an affiliate. The parties hereto
further agree that the Depositary, at its sole discretion, may obtain such
licenses or may consent to the Company obtaining such license on the
Depositary’s behalf, which consent shall not be unreasonably withheld or
delayed. The Company agrees to pay for all reasonable costs associated with
such
additional licensing.
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6.
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Section
4.01.
Section 4.01 is hereby amended by replacing all references to the
“Depositary” to “Computershare” and adding the following language at the
end of Section 4.01:
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The
Company acknowledges that the bank accounts maintained by Computershare in
connection with the services under the Agreement will be in Computershare’s name
and that Computershare may receive investment earnings in connection with the
investment at Computershare’s risk and for its benefit of funds held in those
accounts from time to time.
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7.
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Section
4.09 and Section 4.10. The
following new sections 4.09 and 4.10 are added to the Deposit
Agreement.
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SECTION
4.9. Tax and Regulatory Compliance. Computershare shall be responsible for
(i) preparation and mailing of form 1099s for all open and closed accounts,
(ii) all applicable withholding related to payments made with respect to the
Receipts, including withholding required pursuant to Sections 1441, 1442, 1445
and 3406 of the Internal Revenue Code of 1986, as amended, (iii) mailing
W-9 or W-8 forms, as the case may be, to new holders of Receipts without a
certified taxpayer identification number, (iv) processing certified W-9 or
W-8 forms, as the case may be, (v) preparation and filing of state
information returns and (vi) escheatment services.
SECTION
4.10. Withholding. Notwithstanding any other provision of this Deposit
Agreement, in the event that the Depositary determines that any distribution
in
property is subject to any tax which Computershare is obligated by law to
withhold, the Depositary may dispose of all or a portion of such property in
such amounts and in such manner as the Depositary deems necessary and
practicable to pay such taxes, by public or private sale, and Computershare
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the holders of Receipts entitled
thereto in proportion to the number of Depositary Shares held by them
respectively.
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8.
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Section
5.06.
Section 5.06 is hereby amended as
follows:
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(a)
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by
deleting the language “Subject to Section 5.07,” in the first
sentence;
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(b)
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by
adding the following language after “affiliates” in the first sentence: “,
or (iii) by any former Depositary for the Depositary Shares or the
Preferred Shares”; and
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(c)
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by
adding the following language to the first sentence of the second
paragraph, after “faith”:
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;
provided, however, that the Depositary’s aggregate liability during any term of
this Deposit Agreement with respect to, arising from, or arising in connection
with this Deposit Agreement, or from all services provided or omitted to be
provided under this Deposit Agreement, whether in contract, or in tort, or
otherwise, is limited to, and shall not exceed, the amounts paid hereunder
by
the Company or the Bank to the Depositary as fees and charges, but not including
reimbursable expenses, during the twelve (12) months immediately preceding
the
event for which recovery from the Depositary.
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9.
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Section
5.07.
Section 5.07 is hereby deleted and replaced with the
following:
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SECTION
5.07. Fees and Expenses.
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(a)
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The
Company agrees to pay the Depositary the fees and out-of-pocket expenses
for services performed pursuant to this Deposit Agreement as set
forth in
Schedule I hereto.
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(b)
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Holders
of Receipts evidencing Depositary Shares shall not be responsible
for
transfer and other taxes and governmental charges arising solely
from the
existence of the depositary arrangements. All other transfer and
other
taxes and governmental charges shall be at the expense of Holders
of
Receipts evidencing Depositary Shares. If, at the request of a holder
of
Receipts, the Depositary incurs charges or expenses for which it
is not
otherwise liable under the Deposit Agreement, such holder shall be
liable
for such charges and expenses.
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(c)
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The
Company agrees to pay all fees and expenses within 30 days of the
date of
the respective billing notice, except for any fees or expenses that
are
subject to good faith dispute. In the event of such dispute, the
Company
may only withhold that portion of the fee or expense subject to such
dispute. The Company shall settle such disputed amounts within five
(5)
business days of the day on which the parties agree on the amount
to be
paid by payment of the agreed amount. If no agreement is reached,
then
such disputed amounts shall be settled as may be required by law
or legal
process.
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(d)
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If
any undisputed amount in an invoice of the Depositary (for fees or
reimbursable expenses) is not paid within 30 days after receipt of
such
invoice, the Depositary shall provide the Company with notice of
such
unpaid invoice, and the Company shall pay the Depositary interest
thereon
(from the due date to the date of payment) at a per annum rate equal
to
eighteen percent (18%). Notwithstanding any other provision hereof,
such
interest rate shall be no greater than permitted under applicable
provisions of New York law.
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(e)
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The
failure by the Company to pay an invoice within 90 days after receipt
of
such invoice or the failure by the Company to timely pay two consecutive
invoices shall constitute a material breach for which the Depositary
may
terminate this Agreement pursuant to Section
6.02.
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10.
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Section
7.04.
Section 7.04 is amended by replacing the contact information for
The Bank
of Nova Scotia Trust Company of New York with the
following:
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Computershare
Trust Company, N.A.
c/o
Computershare Inc.
000
Xxxxxx Xxxxxx
Xxxxxx,
XX 00000
Attn:
President
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
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11.
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Section
7.05.
Section 7.05 is hereby amended by deleting the third sentence, and
replacing the second sentence with the following:
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The
Depositary shall notify the Company or the Bank of any appointment
of
non-affiliated agents and shall remain responsible for the performance
of
its obligations hereunder as if no Depositary Agent were
appointed.
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| 12. |
Sections
7.10, 7.11, 7.12, 7.13 and 7.14.
The following new sections are added to Article
7:
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SECTION
7.10. Force Majeure. Notwithstanding anything to the contrary contained herein,
the Depositary shall not be liable to the Company or the Bank for any delays
or
failures in performance resulting from acts beyond its reasonable control
including, without limitation, acts of God, terrorist acts, shortage of supply,
breakdowns or malfunctions, interruptions or malfunction of computer facilities,
labor difficulties, war, civil unrest, or loss of data due to power failures
or
mechanical difficulties with information storage or retrieval
systems.
SECTION
7.11 No Expenditure of Funds. No provision of this Deposit Agreement shall
require the Depositary 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 its rights if it shall believe in good faith that repayment of
such
funds or adequate indemnification against such risk or liability is not
reasonably assured to it.
SECTION
7.12. Confidentiality.
(a)
Definition.
Each
party acknowledges and understands that any and all technical, trade secret,
or
business information, including, without limitation, financial information,
business or marketing strategies or plans, product development, Company or
Bank
information, Holder information (including any non-public information of such
Holder), Proprietary Information, or proprietary software (including methods
or
concepts used therein, sources code, object code, or related technical
information) which has been or is disclosed to the other or has been or is
otherwise obtained by the other, its affiliates, agents or representatives
before or during the term of this Deposit Agreement (the “Confidential
Information”) is confidential and proprietary, constitutes trade secrets of the
owner (or its affiliates), and is of great value and importance to the success
of the owner’s (or its affiliates’) business. The parties shall treat the terms
and conditions (but not the existence) of this Deposit Agreement as the
Confidential Information of the other party. Confidential Information shall
not
include any information that is: (i) already known to the other party or its
affiliates at the time of the disclosure; (ii) publicly known at the time of
the
disclosure or becomes publicly known through no wrongful act or failure of
the
other party; (iii) subsequently disclosed to the other party or its affiliates
on a non-confidential basis by a third party not having a confidential
relationship with the owner and which rightfully acquired such information;
or
(iv) independently developed by one party without access to the Confidential
Information of the other.
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(b)
Use
and Disclosure.
All
Confidential Information relating to a party will be held in confidence by
the
other party to the same extent and with at least the same degree of care as
such
party protects its own confidential or proprietary information of like kind
and
import, but in no event using less than a reasonable degree of care. Neither
party will disclose, duplicate, publish, release, transfer or otherwise make
available Confidential Information of the other party in any form to, or for
the
use or benefit of, any person or entity without the other party’s consent. Each
party will, however, be permitted to disclose relevant aspects of the other
party’s Confidential Information to its officers, affiliates, agents,
subcontractors and employees to the extent that such disclosure is reasonably
necessary for the performance of its duties and obligations under this Agreement
and such disclosure is not prohibited by the Xxxxx-Xxxxx-Xxxxxx Act of 1999
(15
U.S.C. 6801 et seq.), as it may be amended from time to time (the “GLB Act”),
the regulations promulgated thereunder or other applicable law. Each party
will
establish commercially reasonable controls to ensure the confidentiality of
the
Confidential Information and to ensure that the Confidential Information is
not
disclosed contrary to the provisions of this Deposit Agreement, the GLB Act
or
any other applicable privacy law. Without limiting the foregoing, each party
will implement such physical and other security measures as are necessary to
(i) ensure the security and confidentiality of the Confidential
Information; (ii) protect against any threats or hazards to the security
and integrity of the Confidential Information; and (iii) protect against
any unauthorized access to or use of the Confidential Information. To
the
extent that any duties and responsibilities under this Deposit Agreement are
delegated to an agent or other subcontractor, the party ensures that such agent
and subcontractor are contractually bound to confidentiality terms consistent
with the terms of this Section 7.12.
(c)
Required
or Permitted Disclosure.
In the
event that any requests or demands are made for the disclosure of Confidential
Information, other than requests to the Depositary for records of Holders
pursuant to standard subpoenas from state or federal government authorities
(e.g., in divorce and criminal actions), the party receiving such request will
notify the other party to secure instructions from an authorized officer of
such
party as to such request and to enable the other party the opportunity to obtain
a protective order or other confidential treatment, unless such notification
is
otherwise prohibited by law or court order. Each party expressly reserves the
right, however, to disclose Confidential Information to any person whenever
it
is advised by counsel that it may be held liable for the failure to disclose
such Confidential Information or if required by law or court order.
(d)
Unauthorized
Disclosure.
As may
be required by law and without limiting either party’s rights in respect of a
breach of this Section, each party will:
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(i)
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promptly
notify the other party in writing of any unauthorized possession,
use or
disclosure of the other party’s Confidential Information by any person or
entity that may become known to such
party;
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(ii)
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promptly
furnish to the other party full details of the unauthorized possession,
use or disclosure; and
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(iii)
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promptly
use commercially reasonable efforts to prevent a recurrence of any
such
unauthorized possession, use or disclosure of Confidential
Information.
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(e)
Costs.
Each
party will bear the costs it incurs as a result of compliance with this Section
7.12.
SECTION
7.13. Damages.
No
party
shall be liable for any incidental, indirect, special or consequential damages
of any nature whatsoever, including, but not limited to, loss of anticipated
profits, occasioned by a breach of any provision of this Deposit Agreement
even
if apprised of the possibility of such damages.
SECTION
7.14. Survival. All provisions regarding indemnification, warranty, liability
and limits thereon, and confidentiality and protection of proprietary rights
and
trade secrets shall survive the termination or expiration of this Deposit
Agreement.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF,
the
parties hereto have duly executed this Deposit Agreement on the date first
written above.
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NB
CAPITAL CORPORATION
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By:
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/s/
Xxxxxx-Xxxxxx Xxxxxxxxx
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Name:
Xxxxxx-Xxxxxx Xxxxxxxxx
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Title:
Assistant Secretary
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NATIONAL
BANK OF CANADA
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By:
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/s/
Xxxxxx-Xxxxxx Xxxxxxxxx
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Name:
Xxxxxx-Xxxxxx Xxxxxxxxx
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Title:
Assistant Secretary
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COMPUTERSHARE
INC.
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By:
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/s/
Xxxxxx X. Xxxxxx
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Name:
Xxxxxx X. Xxxxxx
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Title:
Managing Director
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COMPUTERSHARE
TRUST COMPANY, N.A.
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By:
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/s/
Xxxxxx X. Xxxxxx
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Name:
Xxxxxx X. Xxxxxx
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Title:
Managing Director
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