DATED AS OF APRIL 26, 1984
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BANK OF MONTREAL -- BANQUE DE MONTREAL
AND
THE ROYAL TRUST COMPANY -- COMPAGNIE TRUST ROYAL
TRUSTEE
TRUST INDENTURE
PROVIDING FOR THE ISSUE OF
DEBENTURES
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TABLE OF CONTENTS
Section Page
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Recitals ...................................................... 1
ARTICLE ONE
Interpretation
1.01 Definitions ................................................... 2
1.02 Meaning of "outstanding" for Certain Purposes ................. 4
1.03 Interpretation not Affected by Headings, etc .................. 4
1.04 Applicable Law ................................................ 5
ARTICLE TWO
Issue of Debentures
2.01 Limit of Issue ................................................ 5
2.02 Bank Debentures ............................................... 5
2.03 Subordination ................................................. 6
2.04 Computation of Interest ....................................... 6
2.05 Creation and Issue of Additional Debentures ................... 7
2.06 Debentures to Rank Pari Passu ................................. 8
2.07 Signing of Debentures ......................................... 8
2.08 Certification by Trustee ...................................... 8
2.09 Interim Debentures ............................................ 9
2.10 Issue in Substitution for Lost Debentures ..................... 9
ARTICLE THREE
Issue of Series 9 Debentures
3.01 Limit of Issue and Designation ................................ 10
3.02 Definitions ................................................... 10
3.03 Forms and Terms ............................................... 15
3.04 Indemnity in Respect of Canadian Withholding Taxes ............ 17
3.05 Determination of Rate of Interest and Calculation of
Interest Amount ............................................ 18
3.06 Publication of Rate of Interest and Interest Amount ........... 19
3.07 Determination of Rate of Interest and Calculation of
Interest Amount by Trustee ................................. 19
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Section Page
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3.08 Agent Bank and Reference Banks ................................ 20
3.09 Notice to Series 9 Debentureholders ........................... 20
3.10 Issue of Series 9 Debentures .................................. 20
ARTICLE FOUR
Registration, Transfer, Exchange and Ownership of Debentures
4.01 Fully Registered Debentures ................................... 20
4.02 Coupon Debentures ............................................. 21
4.03 Transferee Entitled to Registration ........................... 22
4.04 Exchange of Debentures ........................................ 22
4.05 Charges for Registration, Transfer and Exchange ............... 23
4.06 Register Open for Inspection .................................. 23
4.07 Limitation on Obligation to Effect Transfers or Exchanges ..... 23
4.08 Ownership of Debentures and Coupons ........................... 24
4.09 Registration, Transfer and Exchange of Series 9 Debentures .... 25
ARTICLE FIVE
Redemption and Purchase of Debentures
5.01 Redemption .................................................... 25
5.02 Purchase ...................................................... 26
ARTICLE SIX
Redemption of Series 9 Debentures
6.01 Restriction on Redemption ..................................... 26
6.02 Redemption .................................................... 26
6.03 Places of Payment ............................................. 26
6.04 Notice of Redemption .......................................... 26
6.05 Payment of Redemption Price ................................... 26
6.06 Cancellation of Series 9 Debentures ........................... 27
ARTICLE SEVEN
Covenants of the Bank
7.01 General Covenants ............................................. 27
7.02 Trustee's Remuneration and Expenses ........................... 28
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Section Page
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7.03 Not to Accumulate Interest .................................... 28
7.04 Restriction on Senior Indebtedness ............................ 29
7.05 Annual Certificate of Compliance .............................. 29
ARTICLE EIGHT
Special Covenants Applicable to Series 9 Debentures
8.01 Changes in Paying Agent ....................................... 29
8.02 Arrangements with the Agent Bank and the Reference Banks ...... 30
8.03 Listing on The Stock Exchange ................................. 30
ARTICLE NINE
Series 9 Debenture Fund
9.01 Creation of the Fund .......................................... 31
9.02 Deposits into the Fund ........................................ 31
9.03 Covenant to Sell Capital and Deposit Proceeds ................. 32
9.04 Investment of Amounts in the Fund ............................. 32
9.05 Payment of Series 9 Debentures Prior to Stated Final Maturity
Date ....................................................... 33
9.06 Repayment to the Bank from the Fund ........................... 34
9.07 Payment to the Trustee or Principal Paying Agent
from the Fund .............................................. 34
ARTICLE TEN
Defaults and Enforcement
10.01 Events of Default ............................................. 35
10.02 Other Defaults ................................................ 35
10.03 Notice of Default by Trustee .................................. 35
10.04 Acceleration .................................................. 36
10.05 Covenant of the Bank to Pay to the Trustee Whole Amount
Due on Debentures Upon Occurrence of an Other Default ...... 36
10.06 Waiver of Default ............................................. 37
10.07 Proceedings by the Trustee .................................... 37
10.08 Suits by Debentureholders ..................................... 38
10.09 Application of Moneys Received by Trustee ..................... 39
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Section Page
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10.10 Distribution of Proceeds ...................................... 40
10.11 Immunity of Shareholders, etc. ................................ 40
ARTICLE ELEVEN
Satisfaction and Discharge
11.01 Cancellation and Destruction .................................. 41
11.02 Non-Presentation of Debentures and Coupons .................... 41
11.03 Repayment of Unclaimed Moneys to Bank ......................... 42
11.04 Release from Covenants ........................................ 42
ARTICLE TWELVE
Successor Banks
12.01 Certain Requirements in Respect of Merger, etc. ............... 43
12.02 Vesting of Powers in Successor ................................ 44
ARTICLE THIRTEEN
Meetings of Debentureholders
13.01 Right to Convene Meeting ...................................... 44
13.02 Notice ........................................................ 45
13.03 Chairman ...................................................... 45
13.04 Quorum ........................................................ 45
13.05 Power to Adjourn .............................................. 46
13.06 Show of Hands ................................................. 46
13.07 Poll .......................................................... 46
13.08 Voting ........................................................ 46
13.09 Regulations ................................................... 47
13.10 Bank and Trustee may be Represented ........................... 48
13.11 Powers Exercisable by Extraordinary Resolution ................ 48
13.12 Powers Cumulative ............................................. 50
13.13 Meaning of "Extraordinary Resolution" ......................... 50
13.14 Minutes ....................................................... 51
13.15 Instruments in Writing ........................................ 51
13.16 Binding Effect of Resolutions ................................. 51
13.17 Serial Meetings ............................................... 52
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Section Page
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ARTICLE FOURTEEN
Supplemental Indentures
14.01 Execution of Supplemental Indentures .......................... 53
ARTICLE FIFTEEN
Concerning the Trustee
15.01 Trust Indenture Legislation ................................... 55
15.02 Rights and Duties of Trustee .................................. 55
15.03 Evidence of Compliance ........................................ 56
15.04 Evidence, Experts and Advisers ................................ 57
15.05 Documents, Moneys, etc., Held by Trustee ...................... 58
15.06 Action by Trustee to Protect Interests ........................ 58
15.07 Trustee not Required to Give Security ......................... 58
15.08 Protection of Trustee ......................................... 59
15.09 Replacement of Trustee ........................................ 59
15.10 Conflict of Interest .......................................... 60
15.11 Acceptance of Trust ........................................... 60
ARTICLE SIXTEEN
Notices
16.01 Notice to Debentureholders .................................... 60
16.02 Notice to the Trustee ......................................... 61
16.03 Notice to the Bank ............................................ 61
ARTICLE SEVENTEEN
Forms of Series 9 Debentures
17.01 Form of Temporary Global Debenture ............................ 62
17.02 Form of Coupon Debenture ...................................... 66
17.03 Form of Registered Debenture .................................. 73
ARTICLE EIGHTEEN
Execution
18.01 Counterparts and Formal Date .................................. 79
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THIS INDENTURE made as of April 26, 1984.
BETWEEN
BANK OF MONTREAL -- BANQUE DE MONTREAL, a Canadian chartered bank
(hereinafter called the "Bank"),
OF THE FIRST PART,
-And-
THE ROYAL TRUST COMPANY -- COMPAGNIE TRUST ROYAL, a trust company
incorporated under the laws of the Province of Quebec (hereinafter
called the "Trustee"),
OF THE SECOND PART.
WHEREAS under the provisions of the Bank Act, the Bank may borrow money by
the issue of bank debentures in accordance with the provisions of the Bank Act
relating to bank debentures; and
WHEREAS the Bank deems it desirable for its corporate purposes to create
and issue from time to time its Debentures to be constituted in the manner
hereinafter appearing; and
WHEREAS all things necessary have been done and performed to make the
Debentures when certified by the Trustee and issued as in this Trust Indenture
provided valid, binding and legal obligations of the Bank with the benefits and
subject to the terms of the Trust Indenture;
NOW THEREFORE THIS INDENTURE WITNESSETH and it is hereby agreed and
declared as follows:
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ARTICLE ONE
INTERPRETATION
SECTION 1.01. Definitions. In this Trust Indenture, unless there is
something in the subject matter or context inconsistent therewith:
"Bank" means the Party of the First Part and every successor bank which
shall have complied with the provisions of Article Twelve;
"Bank Act" means the Bank Act of Canada, 00 Xxxxxxxxx XX, Xxxxxxx 00,
Xxxxxxxx xx Xxxxxx, 0000, and any Act that may be substituted therefor, as from
time to time amended; and reference to a particular section of the Bank Act
includes reference to a section of similar effect in any such substituted or
amended Act;
"certificate of the Bank" means a written certificate signed in the name of
the Bank by its chairman or its president or a vice-president and its secretary
or another vice-president or an assistant secretary, and may consist of one or
more instruments so executed;
"certified resolution" means a copy of a resolution certified by the
secretary or an assistant secretary of the Bank to have been duly passed by the
directors and to be in full force and effect on the date of such certification;
"counsel" means a barrister or solicitor or firm of barristers and
solicitors retained by the Trustee or retained by the Bank and acceptable to the
Trustee;
"Debentureholders" or "holders" means as regards registered Debentures the
several persons for the time being entered in the registers hereinafter
mentioned as holders thereof and as regards unregistered Debentures the bearers
thereof for the time being;
"Debentures" means the Debentures of the Bank issued and certified
hereunder and for the time being outstanding; "coupon Debentures" means
Debentures which are issued with interest coupons attached; "coupons" means the
interest coupons attached or appertaining to coupon Debentures; "fully
registered Debentures" means Debentures without coupons which are registered as
to principal and interest as hereinafter provided; "registered
2
Debentures" means and includes fully registered Debentures and coupon Debentures
registered as to principal only; and "unregistered Debentures" means Debentures
which are not so registered;
"Debentureholders' Request" means an instrument signed in one or more
counterparts by the holder or holders of not less than 10% in principal amount
of the Debentures, or in certain circumstances of any particular series,
outstanding for the time being, requesting the Trustee to take some action or
proceeding specified therein;
"director" means a director of the Bank for the time being, and reference
to action by the directors means action by the directors of the Bank as a board
or, whenever duly empowered, action by the executive committee of the board;
"event of default" has the meaning attributed to it in section 10.01;
"extraordinary resolution" has the meaning attributed to it in Article
Thirteen;
"other defaults" has the meaning attributed to it in section 10.02;
"person" means an individual, a corporation, a partnership, a trustee or an
unincorporated organization; and pronouns have a similarly extended meaning;
"Trust Indenture", "Indenture", "herein", "hereby", "hereof" and similar
expressions mean or refer to this indenture and any indenture, deed or
instrument supplemental or ancillary hereto; and the expressions "Article" and
"section" followed by a number mean and refer to the specified Article or
section of this indenture;
"Trustee" means the Party of the Second Part and its successors for the
time being in the trusts hereby created;
"written order of the Bank" means a written order signed in the name of the
Bank by its chairman or its president or a vice-president and its secretary or
another vice-president or an assistant secretary; and "written request of the
Bank" has a similar meaning;
3
and words importing the singular number include the plural and vice versa and
words importing gender include the masculine, feminine and neuter genders.
SECTION 1.02. Meaning of "outstanding" for Certain Purposes. Every
Debenture certified and delivered by the Trustee hereunder shall be deemed to be
outstanding until it shall be cancelled or delivered to the Trustee for
cancellation or moneys for the payment thereof shall have been set aside under
section 11.02, provided that:
(1) Debentures which have been partially redeemed shall be deemed to be
outstanding only to the extent of the unredeemed part of the principal amount
thereof;
(2) where a new Debenture has been issued in substitution for a Debenture
which has been lost, stolen or destroyed, only one of them shall be counted for
the purpose of determining the aggregate principal amount of Debentures
outstanding; and
(3) for the purpose of any provision of this Trust Indenture entitling
holders of outstanding Debentures to vote, sign consents, requisitions or other
instruments or take any other action under this Trust Indenture, Debentures
owned legally or equitably by the Bank shall be disregarded except that:
(a) for the purpose of determining whether the Trustee shall be
protected in relying on any such vote, consent, requisition, instrument or
other action only the Debentures which the Trustee knows are so owned shall
be so disregarded; and
(b) Debentures so owned which have been pledged in good faith other
than to the Bank shall not be so disregarded if the pledgee shall establish
to the satisfaction of the Trustee the pledgee's right to vote such
Debentures in his discretion free from the control of the Bank.
SECTION 1.03. Interpretation not Affected by Headings, etc. The division of
this Trust Indenture into Articles and Sections, the provision of a Table of
Contents and the insertion of headings are for convenience of reference only and
shall not affect the construction or interpretation hereof.
4
SECTION 1.04. Applicable Law. This Trust Indenture and the Debentures and
coupons shall be governed by and construed in accordance with the laws of the
Province of Quebec and the laws of Canada applicable therein.
ARTICLE TWO
ISSUE OF DEBENTURES
SECTION 2.01. Limit of Issue. Subject to the provisions of the Bank Act,
the aggregate principal amount of Debentures which may be authorized hereunder
is unlimited, but Debentures may be issued only upon and subject to the
conditions and limitations herein set forth. The Debentures may be issued in
several series as herein provided.
SECTION 2.02. Bank Debentures.
(1) The Debentures are bank debentures as that term is defined in the Bank
Act and accordingly:
(a) the Debentures of any series shall not be redeemed by the Bank at
any time during the period of five years commencing with the date of issue
of such Debentures;
(b) the principal amount of the indebtedness evidenced by the
Debentures of any series shall not be paid by the Bank at any time during
the period of five years commencing with the date of issue of such
Debentures except in the event of the insolvency or winding-up of the Bank;
(c) the Bank shall not issue Debentures dated more than sixty (60)
days before the date of issue thereof, but this restriction does not apply
to a Debenture issued in exchange for or in replacement of one that has the
same stated maturity and that is not then being redeemed or paid; and
(d) the conversion of the Debentures of any series into shares of the
Bank in accordance with the terms of such Debentures does not constitute a
payment of the principal amount of the Debentures within the meaning of
paragraph (b) of subsection (1) of this section 2.02.
5
(iii) If on any Interest Determination Date one only or none of the
Reference Banks provides the Agent Bank with such offered quotations, the Rate
of Interest for the relevant Interest Period shall, subject to (iv) below, be
the Reserve Interest Rate.
The "Reserve Interest Rate" shall be the rate per annum which the Agent
Bank determines to be either (1) 1/8 percent per annum above the arithmetic mean
(rounded upwards if necessary to the nearest 1/16 percent) of the United States
dollar lending rates which leading New York City banks selected by the Agent
Bank are quoting, on the relevant Interest Determination Date, for the next
Interest Period, to the Reference Banks or those of them (being at least two in
number) to which such quotations are, in the opinion of the Agent Bank, being so
made, or (2) in the event that the Agent Bank can determine no such arithmetic
mean, 1/8 percent per annum above the lowest United States dollar lending rate
which leading New York City banks selected by the Agent Bank are quoting on such
Interest Determination Date to leading European or Canadian banks for the next
Interest Period, or (3) if the banks selected as aforesaid by the Agent Bank are
not quoting as mentioned above, the Rate of Interest in effect for the Interest
Period to which (i) or (ii) above shall have applied which last preceded the
relevant Interest Period.
(iv) In no event shall the Rate of Interest be less than 5 percent per
annum.
(v) The yearly rate of interest to which the Rate of Interest is equivalent
is:
[ 365 ]
[ --- ]
[ D ]
100 [ (1 + CD) ]
[ ( ---) -1 ]
[ ( 360) ]
C = Rate of Interest for the Interest Period expressed as a percentage.
D = Number of days in the Interest Period.
"Reference Banks" means the principal offices in London (England) of
Barclays Bank plc, Citibank, N.A., The Chase Manhattan Bank, N.A. and Union Bank
of Switzerland and their respective successors and assigns;
14
"Tax Indemnity" has the meaning attributed thereto in subsection 3.04(2)
hereof;
"Temporary Global Debenture" means the interim global Series 9 Debenture
set forth in section 17.01;
"The Stock Exchange" means The Stock Exchange of the United Kingdom and the
Republic of Ireland;
"U.S.$" or "U.S. dollars" or "U.S. funds" or "United States dollars" or
"lawful money of the United States of America" or "lawful money of the United
States" means coin or currency of the United States of America which at the time
of payment is legal tender for the payment of private and public debts in the
United States of America.
SECTION 3.03. Forms and Terms.
(1) The Series 9 Debentures shall be issuable as coupon Debentures in
bearer form in the denomination of U.S. $10,000 ("coupon Series 9 Debentures")
and as fully registered Debentures in the denomination of U.S. $10,000 and
integral multiples thereof ("registered Series 9 Debentures"); shall be
substantially in one of the forms set out in Article Seventeen hereof with such
appropriate insertions, omissions, substitutions and variations and such
distinguishing letters and numbers as the Trustee may approve.
(2) The Series 9 Debentures shall be dated April 26, 1984; shall mature on
the Interest Payment Date in April 1996; shall entitle the holders thereof to
Tax Indemnity in accordance with the provisions of section 3.04 hereof; and
shall be redeemable as provided in Article Six hereof.
(3) (i) Coupon Series 9 Debentures shall bear interest from April 26, 1984
or from such other date on which the Series 9 Debentures are initially issued
hereunder, whichever is the later;
(ii) Registered Series 9 Debentures, whether initially issued or
issued upon exchange or in substitution for previously issued Series 9
Debentures, shall bear interest from April 26, 1984, or from such other date on
which the Series 9 Debentures are initially issued hereunder, or from the last
Interest Payment Date to which interest shall have been paid or made
15
available for payment on the outstanding Series 9 Debentures, whichever is the
latest;
and shall be payable four times yearly in arrears on the Interest Payment Dates
in January, April, July and October in each year at the Rate of Interest for
each Interest Period, with overdue interest, if any, to bear interest at the
Rate of Interest applicable during the period of default. Interest will be
calculated on the basis of the actual number of days elapsed divided by 360.
(4) The payment of the principal of, Tax Indemnity, if any, and interest on
the coupon Series 9 Debentures will be made in lawful money of the United States
of America against surrender of the coupon Series 9 Debentures or, as the case
may be, the appropriate coupon or coupons appertaining thereto, at the specified
offices of any of the paying agents outside of the United States as the Bank
shall from time to time appoint pursuant to subsection 3.03(8) and may, at the
holder's option and subject to applicable laws and regulations, be made by
cheque or bank draft in United States dollars drawn on, or by transfer to a
United States dollar account maintained by the holder with, a bank in New York
City. In the event that the full amount of the coupon Series 9 Debentures and
interest coupons appertaining thereto may not be so paid because such payments
would be illegal or effectively precluded due to the imposition of exchange
controls or other similar restrictions on the full payment or receipt of
principal or interest in United States dollars, then the Bank shall designate a
paying agent in New York City from which such payments will be made.
(5) The payment of Tax Indemnity, if any, and interest on registered Series
9 Debentures will be made in lawful money of the United States of America to the
holder by cheque or bank draft in United States dollars drawn on a bank in New
York City mailed to the holder at such holder's registered address, or, at the
holder's option, by transfer to a United States dollar account maintained by
the holder with a bank in New York City.
(6) The payment of the principal of registered Series 9 Debentures will be
made at the specified offices of any of the paying agents in New York City,
Montreal or any additional paying agents designated therefor, and will be made
by cheque or bank draft in United States dollars drawn on, or by transfer to a
United States dollar account maintained by the holder with, a bank in New York
City.
16
(7) In the case of any payment of principal, the Series 9 Debentures must
be surrendered for payment together with all unmatured coupons, if any,
appertaining thereto. Upon the date on which any Series 9 Debenture becomes due
and payable, interest thereon shall cease to accrue and all unmatured coupons
(if any) appertaining thereto (whether or not attached) shall become void and no
payment shall be made in respect thereof unless, upon due presentation of such
Series 9 Debenture for payment, payment of principal is improperly withheld or
refused.
(8) Subject to the provisions of section 8.01, the Bank shall have the
right to appoint paying agents in respect of the Series 9 Debentures and to
terminate the appointment of any such paying agent, provided, however, that so
long as any Series 9 Debentures are outstanding the Bank will maintain a paying
agent having a specified office in New York City and a paying agent having a
specified office in London. The paying agents initially appointed by the Bank,
as aforesaid, are the main office of Bank of Montreal in London as the Principal
Paying Agent, Bank of Montreal Trust Company in New York City (for registered
Series 9 Debentures only), Bank of Montreal in Montreal, Xxxxxx Guaranty Trust
Company of New York in Brussels, Union de Banques Suisses (Luxembourg) S.A. in
Luxembourg and Union Bank of Switzerland in Zurich.
SECTION 3.04. Indemnity in Respect of Canadian Withholding Taxes.
(1) The Bank shall make all payments of principal of and interest
(including interest on amounts in default) on, the Series 9 Debentures without
withholding of or deduction for or on account of any present or future taxes,
duties, assessments or governmental charges of whatsoever nature imposed or
levied by or on behalf of the Government of Canada or any province or any other
political subdivision thereof, or any authority or agency therein or thereof
having power to tax unless such taxes, duties, assessments or government charges
are required by law to be withheld or deducted.
(2) If the Bank is required to withhold or deduct any amount from the
principal of or interest (including interest on amounts in default) on the
Series 9 Debentures on account of any taxes mentioned in subsection 3.04 (1),
the Bank shall, notwithstanding subsection 7.01 (1) but subject to its right to
redeem all the Series 9 Debentures as provided in Article Six hereof, pay such
additional amounts as will result in the payment to the holders of the Series 9
Debentures or the coupons appertaining thereto of the amount which would
17
otherwise have been payable to them in respect of such Series 9 Debentures or
coupons (which additional amount is herein called "Tax Indemnity"); provided,
however, that no Tax Indemnity shall be payable with respect to any Series 9
Debenture or coupon:
(a) to a holder who is liable to tax thereon by reason of his being
connected with Canada otherwise than merely by the holding or ownership of
such Series 9 Debenture or coupon, or
(b) which is presented for payment more than 15 days after the
Relevant Date, except to the extent that the holder thereof would have been
entitled to Tax Indemnity on presenting the same for payment within such
period of 15 days.
For the purposes of this subsection 3.04 (2), the "Relevant Date"
means the later of:
(i) the date on which the payment in respect of such Series 9
Debenture or coupon first becomes due and payable, and
(ii) if the full amount of the moneys payable on such date has
not been received prior to such date by the Principal Paying Agent in
London or by the Trustee, the date on which notice is duly given to
the holders of Series 9 Debentures that such moneys have been so
received.
(3) Wherever in this Trust Indenture there is mention, in any context, of
payment of principal and/or interest (including interest on amounts in default)
of, on or in respect of the Series 9 Debentures, such mention shall be deemed to
include mention of the payment of Tax Indemnity to the extent that, in such
context, Tax Indemnity is, was or would be payable pursuant to the provisions.
of subsection 3.04 (2), and express mention of Tax Indemnity (if applicable) in
any provisions hereof shall not be construed as excluding Tax Indemnity in those
provisions hereof where such express mention is not made.
SECTION 3.05. Determination of Rate of Interest and Calculation of Interest
Amount. The Agent Bank Agreement shall provide that the Agent Bank will, on or
as soon as practicable after each Interest Determination Date, determine the
Rate of Interest and calculate the Interest Amount for the
18
relevant Interest Period. The Rate of Interest and the Interest Amount as
determined and calculated by the Agent Bank shall, in the absence of manifest
error, be final and binding.
SECTION 3.06. Publication of Rate of Interest and Interest Amount. The
Agent Bank Agreement shall provide that the Agent Bank will cause the Rate of
Interest and the Interest Amount for each Interest Period and the relevant
Interest Payment Date to be notified to The Stock Exchange and will use its best
endeavours to cause the same to be published in accordance with the provisions
of section 3.09 hereof as soon as possible but not later than two business days
after the date of commencement of the relevant Interest Period. The Interest
Amount and the Interest Payment Date so published may subsequently be amended
(or appropriate alternative arrangements made by way of adjustment) without
notice in the event of an extension or shortening of the Interest Period.
SECTION 3.07. Determination of Rate of Interest and Calculation of Interest
Amount by Trustee. If the Agent Bank does not at any material time for any
reason determine the Rate of Interest and calculate the Interest Amount, the
Trustee shall:
(i) determine the Rate of Interest at such rate as, in its absolute
discretion, but subject to the minimum Rate of Interest, it shall deem fair
and reasonable in all the circumstances;
(ii) calculate the Interest Amount; and
(iii) cause the Rate of Interest and the Interest Amount so determined
and so calculated by it for such Interest Period and the relevant Interest
Payment Date to be notified to The Stock Exchange and published as
described in section 3.06 hereof.
In determining the Rate of Interest and calculating the Interest Amount,
the Trustee shall have regard to the procedures described in section 3.02 hereof
and the Rate of Interest and Interest Amount so determined and so calculated by
it shall be deemed to be a determination and a calculation by the Agent Bank.
19
SECTION 3.08. Agent Bank and Reference Banks. So long as any of the Series
9 Debentures remains outstanding, the Bank shall at all times have an Agent Bank
and four Reference Banks for the purpose of determining the Rate of Interest on
the Series 9 Debentures. The Reference Banks initially appointed by the Bank
shall be the principal London offices of Barclays Bank plc, Citibank, N.A., The
Chase Manhattan Bank, N.A. and Union Bank of Switzerland and the Agent Bank
initially appointed by the Bank shall be Xxxxxx Guaranty Trust Company of New
York. In the event of the principal London office of any such bank being unable
or unwilling to continue to act as a Reference Bank or of Xxxxxx Guaranty Trust
Company, of New York being unable or unwilling to continue to act as Agent Bank,
the Bank shall appoint such other bank as may be approved by the Trustee to act
as such in its place. The Agent Bank Agreement shall provide that the Agent
Bank may not resign its duties without a successor having been appointed as
aforesaid.
SECTION 3.09. Notice to Series 9 Debentureholders. Notwithstanding the
provisions of Article Sixteen, but subject to the provisions of section 6.04 and
subsection 8.01(b), any notice to be given hereunder to Series 9
Debentureholders shall be deemed to be validly given if such notice is published
once in the English language in one leading London (England) daily newspaper
approved by the Trustee or, if such publication is not possible, in one other
leading English language daily newspaper of general circulation in Europe
approved by the Trustee.
SECTION 3.10. Issue of Series 9 Debentures. The Series 9 Debentures, in
interim or definitive form, to the aggregate principal amount of U.S.
$250,000,000, may forthwith be executed by the Bank and certified by or on
behalf of the Trustee and delivered by it to or upon the written order of the
Bank, without the Trustee receiving any consideration therefor.
ARTICLE FOUR
REGISTRATION, TRANSFER, EXCHANGE AND
OWNERSHIP OF DEBENTURES
SECTION 4.01. Fully Registered Debentures.
(1) With respect to each series of Debentures issuable as fully registered
Debentures, unless otherwise provided in the indenture establishing the terms
20
thereof or in the Debentures of a particular series, the Bank shall cause to be
kept by and at the principal office of the Trustee in the City of Montreal or at
such other place as the Bank, with the approval of the Trustee, may determine a
register in which shall be entered the names and addresses of the holders of
fully registered Debentures of such series and particulars of the Debentures
held by them respectively. Unless otherwise provided as aforesaid, the Bank
shall also, with respect to each series of Debentures issuable as fully
registered Debentures, cause to be provided by and at such principal office of
the Trustee facilities for the exchange and transfer of fully registered
Debentures, and by and at the principal offices of the Trustee in each of the
cities of Montreal, Toronto, Halifax, Winnipeg, Calgary and Vancouver facilities
for the registration, exchange and transfer of fully registered Debentures. The
Bank may from time to time provide additional facilities for such registration,
exchange and transfer at other offices of the Trustee or at other agencies.
(2) No transfer of a fully registered Debenture shall be valid unless made
at one of such offices or other agencies by the registered holder or his
executors, administrators or other legal representatives or his or their
attorney duly appointed by an instrument in writing in form and execution
satisfactory to the Trustee or other agent and upon compliance with such
reasonable requirements as the Trustee may prescribe, nor unless the name of the
transferee shall have been noted on the Debenture by the Trustee or other agent.
SECTION 4.02. Coupon Debentures.
(1) Coupon Debentures issued hereunder shall be negotiable and title
thereto shall pass by delivery unless registered as to principal for the time
being as hereinafter provided. Notwithstanding registration of coupon Debentures
as to principal, the coupons when detached shall continue to be payable to
bearer and title thereto shall pass by delivery.
(2) With respect to each series of Debentures issuable as coupon Debentures
registrable as to principal only, unless otherwise provided in the indenture
establishing the terms thereof, the Bank shall cause to be kept by and at the
principal office of the Trustee in the City of Montreal or at such other place
as the Bank, with the approval of the Trustee, may determine a register in which
holders of coupon Debentures of such series may register the same as to
principal only and in which shall be entered the names and addresses of the
holders of coupon Debentures of such series registered as to
21
principal and particulars of the coupon Debentures so registered held by them
respectively. Unless otherwise provided as aforesaid, the Bank shall also, with
respect to each series of Debentures issuable as coupon Debentures registrable
as to principal only, cause to be provided by and at such principal office of
the Trustee facilities for the exchange and transfer of such registered
Debentures, and by and at the principal offices of the Trustee in each of the
cities of Montreal, Toronto, Halifax, Winnipeg, Calgary and Vancouver facilities
for the registration, exchange and transfer of coupon Debentures registrable as
to principal only. The Bank may from time to time provide additional facilities
for such registration, exchange and transfer at other offices of the Trustee or
at other agencies. Such registration shall be noted on the Debentures by the
Trustee or other agent.
(3) After such registration of a coupon Debenture no transfer thereof shall
be valid unless made at one of such offices or other agencies by the registered
holder or his executors, administrators or other legal representatives or his or
their attorney duly appointed by an instrument in writing in form and execution
satisfactory to the Trustee or other agent upon compliance with such reasonable
requirements as the Trustee may prescribe, nor unless such transfer shall have
been noted on the Debenture by the Trustee or other agent; but any such
Debenture may be discharged from registry by being transferred to bearer, after
which it shall again be transferable by delivery, but may again from time to
time be registered and discharged from registry.
SECTION 4.03. Transferee Entitled to Registration. The transferee of a
registered Debenture shall, after the appropriate form of transfer is lodged
with the Trustee or other agent and upon compliance with all other conditions in
that behalf required by this Trust Indenture or by law, be entitled to be
entered on the register as the owner of such Debenture free from all equities or
rights of set-off or counterclaim between the Bank and his transferor or any
previous holder of such Debenture, save in respect of equities of which the Bank
is required to take notice by statute or by order of a court of competent
jurisdiction.
SECTION 4.04. Exchange of Debentures.
(1) Debentures in any authorized form or denomination may be exchanged upon
reasonable notice for Debentures in any other authorized form or denomination of
the same series and date of maturity, bearing the same
22
interest rate and of the same aggregate principal amount as the Debentures so
exchanged.
(2) Debentures of any series may be exchanged only at the principal office
of the Trustee in the City of Montreal or at such other place or places (if any)
as may be specified in the indenture establishing the terms thereof or in the
Debentures of such series and at such other place or places (if any) as may from
time to time be designated by the Bank with the approval of the Trustee. Any
Debentures tendered for exchange shall be surrendered to the Trustee together
with all unmatured coupons (if any) and all matured coupons in default (if any)
appertaining thereto. The Bank shall execute and the Trustee shall certify all
Debentures necessary to carry out exchanges as aforesaid. All Debentures and
coupons surrendered for exchange shall be cancelled.
SECTION 4.05. Charges for Registration, Transfer and Exchange.
(1) Unless otherwise provided in any indenture, for each Debenture
exchanged, registered, transferred or discharged from registration the Trustee
or other agent shall, if required by the Bank, make a reasonable charge for its
services and for each new Debenture issued (if any); provided that no charge to
a Debentureholder shall be made hereunder: (a) for any exchange, registration,
transfer or discharge from registration of any Debenture applied for within the
period of two months from and including the date of such Debenture; or (b) for
any exchange of any Debenture which has been issued under section 2.09.
(2) Payment of any such charges and reimbursement of the Trustee or other
agent or the Bank for any transfer taxes or governmental or other charges
required to be paid shall be made by the party requesting such exchange,
registration, transfer or discharge from registration as a condition precedent
thereto.
SECTION 4.06. Register Open for Inspection. The register referred to in
this Trust Indenture shall be open for inspection during normal business hours
by the Bank, the Trustee or any Debentureholder.
SECTION 4.07. Limitation on Obligation to Effect Transfers or Exchanges.
Neither the Bank nor the Trustee nor any other agent shall be required (a) to
make transfers or exchanges of fully registered Debentures of
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any series on any interest payment date for Debentures of that series or during
the twenty-one (21) preceding days, or (b) to make exchanges of Debentures of
any series on the day of any selection by the Trustee of Debentures of that
series to be redeemed or during the fifteen (15) preceding days.
SECTION 4.08. Ownership of Debentures and Coupons.
(1) The person in whose name any registered Debenture is registered shall
for all the purposes of this Trust Indenture be and be deemed to be the owner
thereof and payment of or on account of the principal of and premium (if any) on
such Debenture and, in the case of a fully registered Debenture, interest
thereon shall be made only to or upon the order in writing of such registered
holder.
(2) The Bank and the Trustee may deem and treat the bearer of any
unregistered Debenture and the bearer of any coupon, whether or not the
Debenture from which it has been detached shall be registered as to principal,
as the absolute owner of such Debenture or coupon, as the case may be, for all
purposes and neither the Bank nor the Trustee nor any other agent shall be
affected by any notice to the contrary.
(3) Neither the Bank nor the Trustee nor any other agent shall be bound to
take notice of or see to the execution of any trust, whether express, implied or
constructive, in respect of any Debenture and may transfer the same on the
direction of the person registered as the holder thereof, whether named as
trustee or otherwise, as though that person were the beneficial owner thereof.
(4) The registered holder for the time being of any registered Debenture
and the bearer of any unregistered Debenture and the bearer of any coupon shall
be entitled to the principal, premium (if any) and/or interest evidenced by such
instruments respectively free from all equities or rights of set-off or counter
claim between the Bank and the original or any intermediate holder thereof and
all persons may act accordingly and the receipt of any such registered holder or
bearer, as the case may be, for any such principal, premium or interest shall be
a good discharge to the Bank and the Trustee for the same and neither the Bank
nor the Trustee shall be bound to inquire into the title of any such registered
holder or bearer.
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(5) Upon receipt of a certificate of any bank, trust company or other
depositary satisfactory to the Trustee stating that the unregistered Debentures
specified therein have been deposited by a named person with such bank, trust
company or other depositary and will remain so deposited until the expiry of the
period specified therein, the Bank and the Trustee may treat the person so named
as the owner, and such certificate as sufficient evidence of the ownership by
such person during such period, of such Debentures, for the purpose of any
Debentureholders' Request, requisition, direction, consent, instrument or other
document to be made, signed or given by the holder of the Debentures so
deposited. The Bank and the Trustee may treat the registered holder of any
Debenture as the owner thereof without actual production of such Debenture for
the purpose of any Debentureholders' Request, requisition, direction, consent,
instrument or other document as aforesaid.
SECTION 4.09. Registration, Transfer and Exchange of Series 9 Debentures.
Registration, transfer or exchange of Series 9 Debentures may, in addition to
the principal office of the Trustee in the City of Montreal, be effected only
at the principal office of Bank of Montreal Trust Company in New York City and
the Bank and the Trustee shall cause to be kept at such principal office
facilities for those purposes.
Notwithstanding any provision herein, neither the Bank nor the Trustee will
be required to make an exchange of coupon Series 9 Debentures for registered
Series 9 Debentures or registered Series 9 Debentures for coupon Series 9
Debentures if as a result thereof it would incur adverse consequences under
United States tax law.
ARTICLE FIVE
REDEMPTION AND PURCHASE OF DEBENTURES
SECTION 5.01. Redemption. The Bank shall have the right at its option to
redeem either in whole at any time or in part from time to time prior to
maturity Debentures issued hereunder of any series which by their terms are made
so redeemable, subject, however, to any applicable law restricting the
redemption of Debentures of such series, at such rates of premium, if any, and
subject to such conditions, as shall be expressed in the indenture authorizing
or providing for the issue thereof.
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SECTION 5.02. Purchase. The Bank shall have the right at its option to
purchase Debentures issued hereunder of any series (other than the Series 9
Debentures) in the market or by private contract, subject, however, to any
applicable law restricting the purchase of Debentures of such series and subject
to such conditions as shall be expressed in the indenture authorizing or
providing for the issue thereof.
ARTICLE SIX
REDEMPTION OF SERIES 9 DEBENTURES
SECTION 6.01. Restriction on Redemption. The Bank shall not redeem
Series 9 Debentures for any purpose at any time on or before the Interest
Payment Date in April 1989.
SECTION 6.02. Redemption. After the Interest Payment Date in April 1989
the Series 9 Debentures may be redeemed at the option of the Bank in whole, but
not in part, on any Interest Payment Date at a price equal to the principal
amount thereof together with interest accrued to the date fixed for redemption
plus Tax Indemnity, if applicable.
SECTION 6.03. Places of Payment. The redemption price shall be payable
upon presentation and surrender of the Series 9 Debentures to be redeemed at any
of the places where the principal of such Series 9 Debentures is expressed to
be payable and at such other places (if any) as may be specified in the notice
of redemption.
SECTION 6.04. Notice of Redemption. Notice of redemption of not less than
thirty (30) days nor more than sixty (60) days prior to the date fixed for
redemption shall be given: (i) to the holders of coupon Series 9 Debentures in
the manner provided in section 3.09 hereof; and (ii) to the holders of
registered Series 9 Debentures in the manner provided in section 16.01. Such
notice shall specify the redemption date, the redemption price and the places of
payment and shall state that interest upon the principal amount of Series 9
Debentures shall cease to be payable from and after the redemption date.
SECTION 6.05. Payment of Redemption Price. Upon notice being given as
aforesaid, the principal amount of the Series 9 Debentures outstanding shall be
and become due and payable at the redemption price, on the redemption date
specified in such notice and with the same effect as if it were
26
the date of maturity, and from and after such redemption date interest upon the
principal amounts so becoming due and payable shall cease unless payment of the
redemption price shall not be made on presentation and surrender of the Series 9
Debentures and all unmatured coupons, if any, appertaining thereto at any of the
places specified in subsection 3.03(8) hereof or specified in the notice of
redemption, on or after the redemption date and prior to the setting aside of
the redemption price pursuant to Article Eleven hereof.
SECTION 6.06. Cancellation of Series 9 Debentures. All Series 9 Debentures
redeemed by the Bank under the provisions of this Article shall be forthwith
delivered to and cancelled by the Principal Paying Agent or the Trustee and
shall not be reissued.
ARTICLE SEVEN
COVENANTS OF THE BANK
SECTION 7.01. General Covenants. The Bank covenants with the Trustee that
so long as any Debentures remain outstanding:
(1) It will duly and punctually pay or cause to be paid to every holder of
Debentures issued hereunder the principal thereof, premium (if any) and interest
accrued thereon (including, in case of default, interest on all amounts overdue
at the rate specified therein) at the dates and places, in the currencies and in
the manner mentioned herein and in such Debentures and in the coupons, if any,
appertaining thereto. As interest becomes due on each fully registered Debenture
(except at maturity or on redemption, when interest may at the option of the
Bank be paid upon surrender of such Debenture for payment) the Bank, either
directly or through the Trustee, shall send by prepaid ordinary mail a cheque
for such interest (less any tax required to be withheld therefrom) payable to
the order of the then registered holder of such Debenture and addressed to him
at his last address appearing on the register, unless such holder otherwise
directs. In the case of joint holders the cheque shall be made payable to the
order of all such joint holders and addressed to them at the last address
appearing on the register, unless such joint holders otherwise direct. If more
than one address appears on the register in respect of such joint holding the
cheque shall be mailed to the first address so appearing. The mailing of such
cheque shall, to the extent of the sum represented thereby plus the amount of
any tax withheld as aforesaid, satisfy and discharge the
27
liability for interest on such Debenture, unless such cheque be not paid at par
on presentation at one of the places where such interest is, by the terms of
such Debenture, made payable. In the event of non-receipt of any cheque for
interest by the person to whom it is sent as aforesaid, the Bank will issue to
such person a replacement cheque for a like amount upon being furnished with
such evidence of non-receipt as it shall reasonably require and upon being
indemnified to its satisfaction.
(2) Except as herein otherwise expressly provided, it will at all times
maintain its corporate existence and will itself carry on and conduct its
business in a proper, efficient and businesslike manner and in accordance with
good business practice.
(3) It will keep proper books of account in accordance with generally
accepted accounting practice and will, if and whenever it is so required in
writing by the Trustee, file with the Trustee a copy of each annual and other
periodic report of the Bank furnished to its shareholders after the date hereof.
SECTION 7.02. Trustee's Remuneration and Expenses. The Bank covenants that
it will pay to the Trustee from time to time reasonable remuneration for its
services hereunder and will pay or reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by the
Trustee in the administration or execution of the trusts hereby created
(including the reasonable compensation and the disbursements of its counsel and
all other advisers and assistants not regularly in its employ), both before and
after default hereunder and thereafter until all duties of the Trustee under the
trusts hereof shall be finally and fully performed, except any such expense,
disbursement or advance as may arise from its negligence or wilful default. Any
amount due under this section and unpaid thirty days after request for such
payment shall bear interest at the rate of 10% per annum from the expiration of
such thirty days. After default all amounts so payable and the interest thereon
shall be payable out of any funds coming into the possession of the Trustee or
its successors in the trusts hereunder in priority to any payment of the
principal of or interest or premium on the Debentures.
SECTION 7.03. Not to Accumulate Interest. In order to prevent any
accumulation after maturity of coupons or interest the Bank covenants with the
Trustee that it will not, except with the approval of the Debentureholders
expressed by extraordinary resolution, directly or indirectly extend or assent
to
28
the extension of time for payment of any coupons or interest payable hereunder
or be a party to or approve any such arrangement by purchasing or funding any of
said coupons or interest or in any other manner. In case the time for payment of
any such coupons or interest shall be so extended, whether for a definite period
or otherwise, such coupons or interest shall not be entitled in case of default
hereunder to the benefit of these presents except subject to the prior payment
in full of the principal of and premium (if any) on all Debentures then
outstanding and of all matured coupons and interest on such Debentures the
payment of which has not been so extended, and of all other moneys payable
hereunder.
SECTION 7.04. Restriction on Senior Indebtedness. The Bank hereby covenants
with the Trustee that so long as any Debentures remain outstanding the Bank will
not create, issue, incur or reclassify any indebtedness subordinate in right of
payment to the deposit liabilities of the Bank which, in the event of the
insolvency or winding-up of the Bank, would rank in right of payment in priority
to the Debentures.
SECTION 7.05. Annual Certificate of Compliance. Within ninety (90) days
after the end of each fiscal year of the Bank, and at any other time if
requested by the Trustee, the Bank shall furnish the Trustee with a certificate
of an officer of the Bank stating that in the course of the performance by the
signer of his duties as an officer of the Bank he would normally have knowledge
of any default by the Bank in the performance of its covenants under this Trust
Indenture or of any event of default or of an other default and certifying that
the Bank has complied with all covenants, conditions or other requirements
contained in this Trust Indenture non-compliance with which would, with
notification or with the lapse of time or otherwise, constitute an event of
default or an other default or a breach of any covenant hereunder, or, if such
is not the case, setting forth with reasonable particulars the circumstances of
any failure to comply.
ARTICLE EIGHT
SPECIAL COVENANTS APPLICABLE TO SERIES 9 DEBENTURES
SECTION 8.01. Changes in Paying Agent. The Bank covenants with the Trustee
that, so long as any Series 9 Debentures remain outstanding:
29
(a) it will maintain a paying agent in New York City and London (England)
and, subject to applicable laws and regulations, maintain at least one paying
agent for the payment of the Series 9 Debentures in each country in which such
an agent has been initially appointed as set out in subsection 3.03(8) and, to
the extent within its reasonable control, it will not appoint any paying agent
or terminate the appointment of any paying agent for the Series 9 Debentures
within twenty-one (21) days before or after the due date of any payment on or in
respect of the Series 9 Debentures;
(b) it will give to the holders of Series 9 Debentures, in the manner
provided in section 3.09, notice of the appointment, or of the termination of
the appointment (whether by the Bank or by resignation or in any other manner),
or of any change in the specified office, of any paying agent for the Series 9
Debentures, such notice to be published within the period of twenty-one (21)
days preceding the next Interest Payment Date in respect of the Series 9
Debentures following the effective date of such appointment, termination or
change, as the case may be, save that if the paying agent in New York City is
thereby affected, the Trustee will give notice to the holders of registered
Series 9 Debentures in the manner provided in section 16.01; and
(c) it will give written notice to the Trustee and to the Principal Paying
Agent of the appointment, or the termination of the appointment (whether by the
Bank or by resignation or in any other manner) of any paying agent for the
Series 9 Debentures prior to or forthwith upon such appointment or termination,
as the case may be.
SECTION 8.02. Arrangements with the Agent Bank and the Reference Banks. The
Bank covenants with the Trustee that, so long as any Series 9 Debentures remain
outstanding: (a) it will comply with and perform all its duties and obligations,
and use its best efforts to ensure that the Agent Bank complies with and
performs all its duties and obligations, under the Agent Bank Agreement and
further that the Bank will not make or acquiesce in any amendment or
modification to the Agent Bank Agreement without the prior written approval of
the Trustee; and (b) it will use its best efforts to ensure that the Reference
Banks carry out their duties as such.
SECTION 8.03. Listing on The Stock Exchange. The Bank hereby covenants with
the Trustee that, so long as any of the Series 9 Debentures remain outstanding,
it will use all reasonable endeavours to maintain the listing
30
of the Series 9 Debentures on The Stock Exchange in London and will also use its
best endeavours to ensure that there will at all times be furnished to such
stock exchange such information as such stock exchange may require in accordance
with its normal requirements or in accordance with any arrangements for the time
being made with such stock exchange.
ARTICLE NINE
SERIES 9 DEBENTURE FUND
SECTION 9.01. Creation of the Fund. There is hereby created for certain
United States bank regulatory purposes and established with the Trustee a
segregated fund (the "Fund") to be designated "Bank of Montreal Floating Rate
Debentures, Series 9, Due 1996 Fund", into which funds shall be deposited by the
Bank as provided in section 9.02, which funds shall be used to pay the
principal of the Series 9 Debentures on the terms and subject to the conditions
set forth in this Indenture. Notwithstanding any provision to the contrary
contained in this Indenture, neither funds deposited in the Fund, nor any other
property from time to time held in the Fund, shall be deemed to be for any
purpose property of the holders of the Series 9 Debentures or trust funds and
the Fund shall not constitute security for the payment of the Series 9
Debentures.
SECTION 9.02. Deposits into the Fund. Amounts in the Fund will consist
solely of U.S. dollars and will represent the net proceeds of the sale by the
Bank for cash from time to time of Capital or, in the case of any sale of
Capital in Canadian dollars, the U.S. dollar equivalent of such net proceeds
computed on the basis of the Bank of Canada noon spot rate of exchange at the
date of deposit thereof into the Fund (such net proceeds in U.S. dollars or
the equivalent amount thereof in U.S. dollars being herein called the "Cash
Proceeds"). Any amount deposited by the Bank with the Trustee shall be
accompanied by a certificate of the Bank stating that such amount, together with
all amounts theretofore deposited into the Fund, do not exceed the aggregate
Cash Proceeds from the sale of Capital after the date of initial issuance of the
Series 9 Debentures. All amounts received by the Trustee which are accompanied
by a certificate of the Bank to the foregoing effect (and no other amounts)
shall be deposited by the Trustee into the Fund.
31
SECTION 9.03. Covenant to Sell Capital and Deposit Proceeds.
Notwithstanding anything else contained herein, the Bank hereby covenants and
agrees that (i) by the Interest Payment Date in April 1988, it will have sold
Capital in a sufficient amount so that the aggregate of the Cash Proceeds will
equal at least one-third of the original aggregate principal amount of the
Series 9 Debentures (or such lesser amount as the primary United States bank
regulatory supervisor of the Bank may permit from time to time), and will have
deposited funds equivalent to such amount into the Fund, (ii) by the Interest
Payment Date in April 1992, it will have sold Capital in a sufficient amount so
that the aggregate of the Cash Proceeds will equal at least two-thirds of the
original aggregate principal amount of the Series 9 Debentures (or such lesser
amount as the primary United States bank regulatory supervisor of the Bank may
permit from time to time) and will have deposited funds equivalent to such
amount into the Fund, and (iii) by 60 days prior to the Interest Payment Date in
April 1996, it will have sold Capital in a sufficient amount so that the
aggregate of the Cash Proceeds will equal not less than the original aggregate
principal amount of the Series 9 Debentures (or such lesser amount as the
primary United States bank regulatory supervisor of the Bank may permit from
time to time) and will have deposited funds equivalent to such amount into the
Fund; provided, however, that such covenant and agreement of the Bank shall be
cancelled, and any amounts theretofore deposited into the Fund will, at the
request of the Bank, be repaid to it, in the event that the primary United
States bank regulatory supervisor of the Bank shall determine that the
indebtedness represented by the Series 9 Debentures in excess of amounts
theretofore deposited into the Fund will not be treated for United States bank
regulatory purposes as "primary capital" of the Bank or in the event that the
Series 9 Debentures shall cease being, treated as "primary capital" of the Bank,
or in the event that the Bank shall have redeemed the Series 9 Debentures
pursuant to subsection 9.05(2)(ii) hereof.
SECTION 9.04. Investment of Amounts in the Fund. Amounts held in the Fund
shall be invested and reinvested by the Trustee in specified Qualifying
Investments, and such investments and reinvestments shall be liquidated or
disposed of, all at the direction of the Bank, each such direction to be in a
written order of the Bank. All such investments shall be held by or under the
control of the Trustee and shall be deemed at all times to be a part of the
Fund. All interest or discount earned on such investments and any profit
realized therefrom shall be promptly paid to the Bank and will not be deemed to
be part of the Fund. The Bank shall not direct the Trustee to make any
32
investments or reinvestments other than those permitted by law and this
Indenture. In making, disposing of or liquidating any such investments and
reinvestments, the Trustee shall rely on directions delivered to it pursuant to
this section 9.04, and the Trustee (or its agent) shall be relieved of all
liability with respect to making, disposing of or liquidating such investments
or reinvestments in accordance with such directions and shall not be responsible
for any losses incurred in connection with such investments or reinvestments or
the disposition or liquidation thereof.
SECTION 9.05. Payment of Series 9 Debentures Prior to Stated Final
Maturity Date.
(1) Unless the Series 9 Debentures have been accelerated upon the
occurrence of an event of default or except as otherwise provided in subsections
9.05(2) and 9.05(3), the principal of the Series 9 Debentures shall be payable
prior to their final maturity on the Interest Payment Date in April 1996 solely
from funds in the Fund. Amounts in the Fund will not be available for the
payment of interest on the Series 9 Debentures. Notwithstanding anything herein
contained to the contrary, the obligation of the Bank to make payment of the
principal of the Series 9 Debentures upon redemption at their final maturity on
the Interest Payment Date in April 1996 and in the event of acceleration of the
Series 9 Debentures upon the occurrence of an event of default, and the
indebtedness of the Bank for such principal amounts, will not be affected by
whether or to what extent amounts are in the Fund.
(2) Except as stated in subsection 9.05(3), any redemption of Series 9
Debentures pursuant to Article Six may be made (i) solely out of funds in the
Fund, provided that no notice of any such redemption to be made solely out of
funds in the Fund may be given unless there are sufficient funds available in
the Fund to pay the principal of the Series 9 Debentures to be redeemed; or
(ii) from any source, irrespective of the amount of funds available in or
theretofore deposited in the Fund (x) if the primary United States bank
regulatory supervisor of the Bank shall approve the redemption of Series 9
Debentures from a source other than funds in the Fund or (y) if the primary
United States bank regulatory supervisor of the Bank shall determine that the
indebtedness represented by the Series 9 Debentures in excess of amounts
theretofore deposited into the Fund will not be treated for United States bank
regulatory purposes as "primary capital" of the Bank or (z) if the Series 9
Debentures
33
shall cease being treated as "primary capital" of the Bank. The Series 9
Debentures will not be entitled to the benefit of any sinking fund.
(3) Should the Bank determine to redeem the Series 9 Debentures pursuant to
Article Six and upon satisfying the Trustee that on the occasion of the next
payment of interest on the Series 9 Debentures it would be obliged by the laws
of Canada, or any province or other political subdivision thereof, or any
authority or agency therein, or by reason of the administration of such laws,
to pay Tax Indemnity pursuant to section 3.04, then, so long as the
indebtedness represented by the Series 9 Debentures in excess of the amounts in
the Fund shall be deemed for United States bank regulatory purposes to
constitute "primary capital", no such redemption will be effected other than out
of funds deposited in the Fund without the prior consent of the primary United
States bank regulatory supervisor of the Bank, if the consent of such authority
is then required to be given prior to any such redemption.
SECTION 9.06. Repayment to the Bank from the Fund. In the event that the
Bank shall have redeemed any of the Series 9 Debentures as provided in
subsections 9.05(2)(ii) or 9.05(3), there shall forthwith be repaid by the
Trustee to the Bank from the Fund an amount of funds not in excess of the
principal amount of Series 9 Debentures so redeemed. Any amounts remaining in
the Fund after redemption of all the Series 9 Debentures or after payment in
full of the principal of and interest on all the Series 9 Debentures (or
provision for the payment thereof is made) and of the remuneration and expenses
of the Trustee shall be repaid to the Bank. Prior to any repayment by the
Trustee to the Bank of amounts from the Fund as provided in this section 9.06,
the Trustee shall be furnished with a certificate of the Bank attesting that the
conditions precedent to any such repayment have been satisfied and, in the case
of a repayment based upon the redemption of Series 9 Debentures pursuant to
subsections 9.05(2)(ii) or 9.05(3), certifying as to the principal amount of
the Series 9 Debentures so redeemed.
SECTION 9.07. Payment to the Trustee or Principal Paying Agent from the
Fund. On the business day next preceding the final Interest Payment Date in
April 1996 of the Series 9 Debentures or the redemption date of the Series 9
Debentures, the Trustee shall pay to the Principal Paying Agent such amount as
is available in the Fund and necessary to pay the principal of the Series 9
Debentures. Subject to the provisions of Article Ten and of the last sentence
of section 9.01, upon declaration of acceleration upon the occurrence of an
event
34
of default, the Trustee shall apply such amount as is available in the Fund and
necessary to pay the principal of and interest on the Series 9 Debentures.
ARTICLE TEN
DEFAULTS AND ENFORCEMENT
SECTION 10.01. Events of Default. The following events are herein referred
to collectively as "events of default" and individually as "an event of
default":
(a) if an order shall be made or an effective resolution be passed for the
winding-up or liquidation of the Bank, or if a liquidator of the Bank be
appointed, except in the course of carrying out or pursuant to a transaction
which is permitted by section 12.01;
(b) if the Bank shall become insolvent or bankrupt or if a curator,
receiver or receiver and manager of the Bank, or any other officer with similar
powers, be appointed; or
(c) if the Bank fails generally to pay its debts as such debts become due.
SECTION 10.02. Other Defaults. The following defaults are herein referred
to collectively as "other defaults" and individually as "an other default":
(a) if the Bank makes default in payment of the principal of or premium on
any Debentures when the same become due under any provision hereof or of the
Debentures; or
(b) if the Bank makes default in payment of any interest due on any
Debenture, and such default shall have continued for a period of thirty (30)
days.
SECTION 10.03. Notice of Default by Trustee. If an event of default or an
other default shall occur and be continuing the Trustee shall, within thirty
(30) days after it becomes aware of the occurrence of such default, give notice
of such default to the Debentureholders, provided that, notwithstanding the
foregoing, the Trustee shall not be required to give such notice if the Trustee
35
in good faith determines that the withholding of such notice is in the best
interests of the Debentureholders and gives notice of such determination to the
Bank.
SECTION 10.04. Acceleration.
(1) Only in case an event of default, as defined in section 10.01, has
occurred, the Trustee may in its discretion and shall upon receipt of a
Debentureholders' Request, subject to the provisions of section 10.06, declare
the principal of and interest on all Debentures then outstanding and other
moneys payable hereunder to be due and payable and the same shall forthwith
become immediately due and payable to the Trustee on demand, anything therein or
herein to the contrary notwithstanding, and the Bank shall on such demand
forthwith pay to the Trustee for the benefit of the Debentureholders the
principal of and accrued and unpaid interest (including interest on all amounts
overdue) on the Debentures, premium (if any), and all other moneys payable
hereunder, together with subsequent interest thereon at the rates borne by the
Debentures from the date of the said declaration until payment is received by
the Trustee, such subsequent interest to be payable at the times and places and
in the moneys mentioned in and according to the tenor of the Debentures and
coupons. Such payment when made shall be deemed to have been made in discharge
of the Bank's obligations hereunder and any moneys so received by the Trustee
shall be applied as herein provided.
(2) Nothing in this section shall require the Bank to pay the principal of
any Debenture at a time when such payment would be contrary to the provisions of
subsection 2.02(1); provided that nothing herein shall be deemed to prevent the
Trustee or, subject to section 10.08, the holder of any Debenture from proving
claims in any insolvency or winding-up proceedings for such amounts in respect
of the Debentures as they may be permitted to claim under the laws applicable to
such insolvency or winding-up proceedings or from receiving payment of any such
amounts.
SECTION 10.05. Covenant of the Bank to Pay to the Trustee Whole Amount Due
on Debentures upon Occurrence of an Other Default. The Bank covenants that upon
the occurrence of an other default, upon demand of the Trustee, it will pay to
the Trustee, for the benefit of the holders of the Debentures, the whole amount
that then shall have become due and payable on all such Debentures for
principal, premium (if any) and/or interest, as the case
36
may be, with interest upon the overdue principal and interest at the rate of
interest borne by the Debentures.
SECTION 10.06. Waiver of Default. In case an event of default or an other
default has occurred otherwise than by default in payment of any principal
moneys at maturity on any Debenture:
(a) the holders of more than 50% in principal amount of the Debentures then
outstanding shall have power (in addition to and subject to the powers
exercisable by extraordinary resolution as hereinafter provided) by instrument
in writing to instruct the Trustee to waive the default and/or to annul any
declaration made by the Trustee pursuant to section 10.04 and the Trustee shall
thereupon waive the default and/or annul such declaration upon such terms and
conditions as such Debentureholders shall prescribe in such instrument; and
(b) the Trustee, so long as it has not become bound to institute any
proceeding hereunder, shall have power to waive the event of default or, as the
case may be, the other default if, in the Trustee's opinion, the same shall have
been cured or adequate satisfaction made therefor, and in the event of waiver of
an event of default to annul any such declaration theretofore made by the
Trustee in the exercise of its discretion, upon such terms and conditions as to
the Trustee may seem advisable;
provided that no act or omission either of the Trustee or of the
Debentureholders in the premises shall extend to or be taken in any manner
whatsoever to affect any subsequent default or the rights resulting therefrom.
SECTION 10.07. Proceedings by the Trustee.
(1) Whenever an event of default or an other default has occurred, but
subject to the provisions of section 10.06 and to the provisions of any
extraordinary resolution:
(a) the Trustee, in the exercise of its discretion, may proceed to enforce
the rights of the Trustee and the Debentureholders by any action, suit, remedy
or proceeding authorized or permitted by law or by equity and may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee and of the
37
Debentureholders lodged in any winding-up or other proceedings relative to the
Bank; and
(b) upon receipt of a Debentureholders' Request the Trustee, subject to
section 15.02, shall exercise or take such one or more of the said remedies as
the Debentureholders' Request may direct or, if such Debentureholders' Request
contains no direction, as the Trustee may deem expedient.
(2) No such remedy for the enforcement of the rights of the Trustee or of
the Debentureholders shall be exclusive of or dependent on any other such remedy
but any one or more of such remedies may from time to time be exercised
independently or in combination.
(3) All rights of action hereunder may be enforced by the Trustee without
the possession of any of the Debentures or coupons or the production thereof on
the trial or other proceedings relative thereto.
(4) No delay or omission of the Trustee or of the Debentureholders to
exercise any remedy referred to in subsection 10.07(1) shall impair any such
remedy or shall be construed to be a waiver of any event of default or other
default hereunder or acquiescence therein.
SECTION 10.08. Suits by Debentureholders. No holder of any Debenture or
coupon shall have the right to institute any action or proceeding or to exercise
any other remedy authorized by this Trust Indenture for the purpose of enforcing
any rights on behalf of the Debentureholders or for the execution of any trust
or power hereunder or for the appointment of a curator or liquidator or receiver
or to have the Bank wound up or to file or prove a claim in any liquidation or
insolvency proceedings, unless the Trustee shall have failed to act within a
reasonable time after the Debentureholders' Request referred to in section 10.07
has been delivered to the Trustee or after breach by the Bank of the covenant
set forth in section 10.05 and any indemnity required by it under section 15.02
has been tendered to it; in such case, but not otherwise, any Debentureholder
acting on behalf of himself and all other Debentureholders shall be entitled to
take proceedings in any court of competent jurisdiction such as the Trustee
might have taken under section 10.07; it being understood and intended that no
one or more holders of Debentures or coupons shall have any right in any manner
whatsoever to affect, disturb or prejudice the rights hereby created by his or
their action or to
38
enforce any right hereunder or under any Debenture or coupon, except subject to
the conditions and in the manner herein provided, and that all powers and trusts
hereunder shall be exercised and all proceedings at law shall be instituted and
maintained by the Trustee, except only as herein provided, and in any event for
the equal benefit of all holders of all outstanding Debentures and coupons.
SECTION 10.09. Application of Moneys Received by Trustee.
(1) Except as otherwise herein provided, all moneys arising from any
enforcement hereof shall be held by the Trustee and by it applied, together with
any other moneys then or thereafter in the hands of the Trustee available for
the purpose, as follows:
(a) firstly, in payment or reimbursement to the Trustee of the
remuneration, expenses, disbursements and advances of the Trustee earned,
incurred or made in the administration or execution of the trusts hereunder or
otherwise in relation to this Trust Indenture with interest thereon as herein
provided; and
(b) secondly, but subject to the provisions of section 7.03, in or towards
payment of the principal of and premium (if any) and accrued and unpaid interest
(including interest on all amounts overdue) on the Debentures and coupons which
shall then be outstanding, in that order of priority unless otherwise directed
by extraordinary resolution and in that case in such order of priority as
between principal, premium and interest as may be directed by such extraordinary
resolution.
The surplus (if any) of such moneys shall be paid to the Bank or its
assigns.
(2) The holders of Debentures in respect of which no payments of principal
have been received by the Trustee by reason of the restrictions contained in
subsection 10.04(2) shall not be entitled to participate in any distribution
under clause (b) of subsection 10.09(1) (except a distribution on account of
interest) until such restrictions shall cease to apply to such Debentures;
thereafter the holders of such Debentures shall be entitled to participate in
distributions under said clause (b) in priority to the holders of
39
Debentures which were not so restricted until the amounts distributed to the
holders of all Debentures are proportionate to the amounts owing thereon.
SECTION 10.10. Distribution of Proceeds. Payment to holders of Debentures
and coupons pursuant to clause (b) of subsection 10.09(1) shall be made as
follows:
(1) At least fifteen days' notice of every such payment shall be given in
the manner provided in Article Sixteen specifying the time when and the place or
places where the Debentures and coupons are to be presented and the amount of
the payment and the application thereof as between principal, premium and
interest.
(2) Payment of any Debenture or coupon shall be made upon presentation
thereof at any one of the places specified in such notice and any such Debenture
or coupon thereby paid in full shall be surrendered, otherwise a memorandum of
such payment shall be endorsed thereon; but the Trustee may in its discretion
dispense with presentation and surrender or endorsement in any special case upon
such indemnity being given as it shall deem sufficient.
(3) From and after the date of payment specified in the notice interest
shall accrue only on the amount owing on each Debenture and coupon after giving
credit for the amount of the payment specified in such notice unless it be duly
presented on or after the date so specified and payment of such amount be not
made.
(4) The Trustee shall not be required to make any interim payment to
Debentureholders unless the moneys in its hands, after reserving therefrom such
amount as the Trustee may think necessary to provide for the payments mentioned
in clause (a) of subsection 10.09(1), exceed 5% of the principal amount of the
outstanding Debentures.
SECTION 10.11. Immunity of Shareholders, etc. The Debentureholders and the
Trustee hereby waive and release any right, cause of action or remedy now or
hereafter existing in any jurisdiction against any past, present or future
incorporator, shareholder, director or officer (as such) of the Bank or of any
successor company for the payment of the principal of or premium or interest on
any of the Debentures or on any covenant, agreement, representation or
40
warranty by the Bank herein or in the Debentures contained; provided that
nothing in this section shall prevent recourse to and the enforcement of
liability of any shareholder for uncalled capital or upon unsatisfied calls.
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
SECTION 11.01. Cancellation and Destruction. All matured coupons and
Debentures shall forthwith after payment thereof be cancelled and delivered to
the Trustee. All Debentures and coupons cancelled or required to be cancelled
under this or any other provision of this Trust Indenture may be destroyed by or
under the direction of the Trustee by cremation or otherwise (in the presence of
a representative of the Bank if the Bank shall so require) and the Trustee shall
prepare and retain a certificate of such destruction and deliver a duplicate
thereof to the Bank.
SECTION 11.02. Non-Presentation of Debentures and Coupons. In case the
holder of any Debenture or coupon shall fail to present the same for payment on
the date on which the principal thereof, the premium (if any) thereon and/or the
interest thereon or represented thereby becomes payable either at maturity or on
redemption or otherwise:
(a) the Bank shall be entitled to pay to the Trustee and direct it to set
aside, or
(b) in respect of moneys in the hands of the Trustee which may or should be
applied to the payment or redemption of the Debentures, the Bank shall be
entitled to direct the Trustee to set aside,
the principal moneys and premium (if any) and/or the interest, as the case may
be, in trust to be paid to the holder of such Debenture or coupon upon due
presentation and surrender thereof in accordance with the provisions of this
Trust Indenture; and thereupon the principal moneys and premium (if any) and/or
the interest payable on or represented by each Debenture and each coupon in
respect whereof such moneys have been set aside shall be deemed to have been
paid and the holder thereof shall thereafter have no right in respect thereof
except that of receiving payment of the moneys so set aside by
41
the Trustee (without interest on such moneys) upon due presentation and
surrender thereof, subject always to the provisions of section 11.03.
SECTION 11.03. Repayment of Unclaimed Moneys to Bank. Any moneys set aside
under section 11.02 in respect of any Debenture or coupon and not claimed by
and paid to the holder thereof, as provided in section 11.02, within six years
after the date of such setting aside shall be repaid to the Bank by the Trustee
on demand, and thereupon the Trustee shall be released from all further
liability with respect to such moneys, and thereafter such holder shall have no
rights in respect of such Debenture or coupon except to obtain payment of such
moneys (without interest thereon) from the Bank.
SECTION 11.04. Release from Covenants. Upon proof being given to the
reasonable satisfaction of the Trustee of compliance with the following
conditions:
(1) that the Bank has paid and discharged or provided for the payment and
discharge of the entire indebtedness on all Debentures outstanding hereunder in
any one or more of the following ways:
(a) by paying or causing to be paid the principal of and premium (if
any) and interest on Debentures outstanding hereunder as and when the same
became due and payable;
(b) by paying to the Trustee, or making provision satisfactory to the
Trustee for the payment of, moneys sufficient to pay principal and interest
to maturity on Debentures outstanding hereunder and maturing within ninety
(90) days;
(c) by paying to the Trustee, or making provision satisfactory to the
Trustee for the payment of, moneys sufficient to redeem Debentures
outstanding hereunder together with (i) proof satisfactory to the Trustee
that notice of redemption of such Debentures within ninety (90) days has
been duly given or waived or (ii) a written order of the Bank, expressed to
be irrevocable, authorizing the Trustee to give notice of such redemption
for and on behalf of the Bank; and/or
(d) by delivering to the Trustee, for cancellation by it, Debentures
outstanding hereunder with all unpaid coupons appertaining thereto;
42
(2) that all other moneys (if any) payable hereunder have been paid or
satisfied; and
(3) that all costs, charges and expenses properly incurred by the Trustee
in relation to these presents and all interest thereon and the remuneration of
the Trustee have been paid or provision satisfactory to the Trustee has been
made therefor;
the Trustee shall, upon the written request and at the expense of the Bank,
execute and deliver to the Bank such instruments as shall be requisite to
evidence the satisfaction of the obligations of the Bank under this Trust
Indenture and to release the Bank from its covenants herein contained except
those relating to the indemnification of the Trustee.
ARTICLE TWELVE
SUCCESSOR BANKS
SECTION 12.01. Certain Requirements in Respect of Merger, etc. 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:
(1) 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 and by
virtue of which the successor bank is subject to all the duties, liabilities and
obligations of the Bank under this Trust Indenture and the Debentures; or
(2) 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 indenture supplemental hereto
and such other instruments (if any) as are satisfactory to the Trustee and
in the opinion of counsel are necessary or advisable to
43
evidence the assumption by the successor bank of liability for the due and
punctual payment of all the Debentures and the interest thereon and all
other moneys payable hereunder 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 Trust Indenture;
(b) such transaction shall to the satisfaction of the Trustee and in
the opinion of counsel be upon terms substantially preserving and not
materially impairing any of the rights and powers of the Trustee or of the
Debentureholders hereunder; 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 or an other default
hereunder.
SECTION 12.02. Vesting of Powers in Successor. Whenever the conditions of
section 12.01 have been duly observed and performed, the Trustee shall execute
and deliver the said supplemental indenture pursuant to Article Fourteen and
thereupon the successor bank shall possess and from time to time may exercise
each and every right and power of the Bank under this Trust Indenture in the
name of the Bank. or otherwise and any act or proceeding by any provision of
this Trust Indenture 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.
ARTICLE THIRTEEN
MEETINGS OF DEBENTUREHOLDERS
SECTION 13.01. Right to Convene Meeting. The Trustee may at any time and
from time to time and shall, on receipt of a written request of the Bank or a
Debentureholders' Request and upon being indemnified to its reasonable
satisfaction by the Bank or by the Debentureholders signing such
Debentureholders' Request against the costs which may be incurred in connection
with the calling and holding of such meeting, convene a meeting of the
Debentureholders. In the event of the Trustee failing within thirty (30) days
after receipt of such request and indemnity to give notice convening such
44
meeting, the Bank or such Debentureholders, as the case may be, may convene such
meeting. Every such meeting shall be held in the city of Montreal or in the
city of Toronto or at such other place as may be approved or determined by the
Trustee.
SECTION 13.02. Notice. At least thirty (30) days' notice of any meeting
shall be given to the Debentureholders in the manner provided in Article Sixteen
and a copy thereof shall be sent by mail to the Trustee unless the meeting has
been called by it and to the Bank unless the meeting has been called by it. Such
notice shall state the time when and the place where the meeting is to be held
and shall state briefly the general nature of the business to be transacted
thereat and it shall not be necessary for any such notice to set out the terms
of any resolution to be proposed or any of the provisions of this Article.
SECTION 13.03. Chairman. Some individual person, who need not be a
Debentureholder, nominated in writing by the Trustee shall be chairman of the
meeting and if no person is so nominated, or if the person so nominated is not
present within fifteen minutes from the time fixed for the holding of the
meeting, the Debentureholders present in person or by proxy shall choose some
person present to be chairman.
SECTION 13.04. Quorum. Subject to the provisions of section 13.13:
(a) at any meeting of the Debentureholders a quorum shall consist of
Debentureholders present in person or by proxy and representing at least
25% in principal amount of the outstanding Debentures;
(b) if a quorum of the Debentureholders shall not be present within
one half hour after the time fixed for holding any meeting, the meeting, if
convened by the Debentureholders or on a Debentureholders' Request, shall
be dissolved, but if otherwise convened the meeting shall stand adjourned
without notice to the same day in the next week (unless such day is a
non-business day in which case it shall stand adjourned to the next
following business day thereafter) at the same time and place, unless the
chairman shall appoint some other place, day and/or time of which not less
than seven days' notice shall be given in the manner provided in Article
Sixteen; and
45
(c) at the adjourned meeting the Debentureholders present in person or
by proxy shall form a quorum and may transact the business for which the
meeting was originally convened notwithstanding that they may not represent
25% in principal amount of the outstanding Debentures.
SECTION 13.05. Power to Adjourn. The chairman of any meeting at which a
quorum of the Debentureholders is present may with the consent of the holders of
a majority in principal amount of the Debentures represented thereat adjourn any
such meeting and no notice of such adjournment need be given except such notice,
if any, as the meeting may prescribe.
SECTION 13.06. Show of Hands. Every question submitted to a meeting shall
be decided by a majority of the votes given on a show of hands except that votes
on extraordinary resolutions shall be given in the manner hereinafter provided.
At any such meeting, unless a poll is duly demanded as herein provided, a
declaration by the chairman that a resolution has been carried or carried
unanimously or by a particular majority or lost or not carried by a particular
majority shall be conclusive evidence of the fact.
SECTION 13.07. Poll. On every extraordinary resolution, and on any other
question submitted to a meeting when demanded after a vote by show of hands by
the chairman or by any Debentureholder, a poll shall be taken in such manner as
the chairman shall direct. Questions other than extraordinary resolutions
shall, if a poll be taken, be decided by the votes of the holders of more than
50% in principal amount of the Debentures represented at the meeting and voted
on the poll.
SECTION 13.08. Voting. On a show of hands every person who is present and
entitled to vote, whether as a Debentureholder or as proxy for one or more
absent Debentureholders or both, shall have one vote. On a poll each
Debentureholder present in person or represented by a proxy duly appointed by
instrument in writing shall be entitled to one vote in respect of each $1,000 or
U.S. $1,000 principal amount of Debentures, as the case may be, of which he
shall then be the holder. A proxy need not be a Debentureholder. In the case of
joint registered holders of a Debenture, any one of them present in person or by
proxy at the meeting may vote in the absence of the other or others; but in
case more than one of them be present in person or by proxy, they must vote
together in respect of the Debentures of which they are joint registered
holders.
46
SECTION 13.09. Regulations. The Trustee or the Bank with the approval of
the Trustee may from time to time make and from time to time vary such
regulations as it shall from time to time think fit:
(a) for the issue of voting certificates
(i) by any bank, trust company or other depositary approved by
the Trustee certifying that specified unregistered Debentures have
been deposited with it by a named holder and will remain on deposit
until after the meeting, or
(ii) by any bank, trust company, insurance company, governmental
department or agency approved by the Trustee certifying that it is the
holder of specified unregistered Debentures and will continue to hold
the same until after the meeting;
which voting certificates shall entitle the holders named therein to be
present and vote at any such meeting and at any adjournment thereof or to
appoint a proxy or proxies to represent them and vote for them at any such
meeting and at any adjournment thereof, in the same manner and with the
same effect as though the holders so named in such voting certificates were
the actual bearers of the Debentures specified therein;
(b) for the deposit of voting certificates and/or instruments
appointing proxies at such place as the Trustee, the Bank or the
Debentureholders convening the meeting, as the case may be, may in the
notice convening the meeting direct; and
(c) for the deposit of voting certificates and/or instruments
appointing proxies at some approved place or places other than the place at
which the meeting is to be held and enabling particulars of such voting
certificates and/or instruments appointing proxies to be mailed, cabled or
otherwise transmitted before the meeting to the Bank or to the Trustee at
the place where the same is to be held and for the voting of proxies so
deposited as though the instruments themselves were produced at the
meeting.
Any regulations so made shall be binding and effective and the votes given in
accordance therewith shall be valid and shall be counted. Save as such
47
regulations may provide, the only persons who shall be recognized at any meeting
as the holders of any Debentures, or as entitled to vote or be present at the
meeting in respect thereof, shall be persons who produce unregistered Debentures
at the meeting and the holders of registered Debentures and persons whom holders
of registered Debentures have by instrument in writing duly appointed as their
proxies.
SECTION 13.10. Bank and Trustee may be Represented. The Bank and the
Trustee, by their respective officers and directors, and the legal advisors of
the Bank and the Trustee may attend any meeting of the Debentureholders, but
shall have no vote as such.
SECTION 13.11. Powers Exercisable by Extraordinary Resolution.
(1) In addition to all other powers conferred upon them by any other
provisions of this Trust Indenture or by law, a meeting of the Debentureholders
shall have the following powers exercisable from time to time by extraordinary
resolution:
(a) power to agree to any modification, abrogation, alteration,
compromise or arrangement of the rights of Debentureholders and/or the
Trustee against the Bank or against its undertaking, property and assets or
any part thereof whether such rights arise under this Trust Indenture or
the Debentures or otherwise;
(b) power to direct or authorize the Trustee to exercise any power,
right, remedy or authority given to it by this Trust Indenture or the
Debentures in any manner specified in such extraordinary resolution or to
refrain from exercising any such power, right, remedy or authority;
(c) power to waive and direct the Trustee to waive any event of
default or other default on the part of the Bank in complying with any
provision of this Trust Indenture or the Debentures, and/or to annul and to
direct the Trustee to annul any declaration in respect of any such event of
default made by the Trustee pursuant to section 10.04, either
unconditionally or upon any conditions specified in such extraordinary
resolution;
(d) power to restrain any Debentureholder or the holder of any coupon
from taking, instituting or maintaining any suit, action or
48
proceeding for the payment of principal, interest or premium or for the
execution of any trust or power hereunder or for the appointment of a
liquidator or receiver or a trustee in bankruptcy or to have the Bank wound
up or for any other remedy hereunder;
(e) power to sanction the exchange of Debentures for or the conversion
of Debentures into shares, bonds, debentures, notes or any other securities
or obligations of the Bank or any other bank or corporation or proposed
bank or corporation;
(f) power to repeal, modify or amend any extraordinary resolution
previously passed by the Debentureholders; and
(g) power to assent to any modification of or change in or omission
from the provisions contained herein which shall be agreed to by the Bank
and to authorize the Trustee to concur in and execute any deed or
instrument supplemental hereto embodying such modification, change or
omission.
(2) A meeting of Debentureholders shall have the power, exercisable from
time to time by extraordinary resolution, to appoint and remove a committee to
consult with the Trustee and to delegate to such committee (subject to such
limitations, if any, as may be prescribed in such extraordinary resolution) all
or any of the powers which the Debentureholders could exercise by extraordinary
resolution under clauses (b), (c) and (d) of subsection 13.11(1). The
extraordinary resolution making such appointment may provide for payment of the
expenses and disbursements of and compensation to such committee. Such committee
shall consist of such number of persons as shall be prescribed in the
extraordinary resolution appointing it, and the members need not be themselves
Debentureholders. Subject to the extraordinary resolution appointing it, every
such committee may elect its chairman and may make regulations respecting its
quorum, the calling of its meetings, the filling of vacancies occurring in its
number, the manner in which it may act and its procedure generally and such
regulations may provide that the committee may act at a meeting at which a
quorum is present or may act by minutes signed by a majority of the members
thereof or the number of members thereof necessary to constitute a quorum,
whichever is the greater. All acts of any such committee within the authority
delegated to it shall be binding upon all Debentureholders. Neither such
committee nor any member thereof shall be
49
liable for any loss arising from or in connection with any action taken or
omitted to be taken in good faith.
SECTION 13.12 Powers Cumulative. It is hereby declared and agreed that any
one or more of the powers and/or any combination of the powers in this Trust
Indenture stated to be exercisable by the Debentureholders by extraordinary
resolution or otherwise may be exercised from time to time and the exercise of
any one or more of such powers or any combination of powers from time to time
shall not be deemed to exhaust the right of the Debentureholders to exercise
such power or powers or combination of powers then or any power or powers or
combination of powers thereafter from time to time.
SECTION 13.13 Meaning of "Extraordinary Resolution".
(1) The expression "extraordinary resolution" when used in this Trust
Indenture means, subject as hereinafter in this section 13.13 and in sections
13.15 and 13.17 provided, a resolution proposed to be passed as an extraordinary
resolution at a meeting of Debentureholders duly convened for the purpose and
held in accordance with the provisions of this Article Thirteen at which the
holders of more than 50% in principal amount of the Debentures then outstanding
are present in person or by proxy and passed by the favourable votes of the
holders of not less than 66(2/3)% of the principal amount of Debentures
represented at the meeting and voted on a poll upon such resolution.
(2) If at any such meeting the holders of more than 50% in principal amount
of the Debentures outstanding are not present in person or by proxy within one
half hour after the time appointed for the meeting, then the meeting, if
convened by Debentureholders or on a Debentureholder's Request, shall be
dissolved; but if otherwise convened the meeting shall stand adjourned to such
day, being not less than twenty-one (21) nor more than sixty (60) days later,
and to such place and time as may be appointed by the chairman. Not less than
ten (10) days' notice shall be given of the time and place of such adjourned
meeting in the manner provided in Article Sixteen. Such notice shall state that
at the adjourned meeting the Debentureholders present in person or by proxy
shall form a quorum but it shall not be necessary to set forth the purposes for
which the meeting was originally called or any other particulars. At the
adjourned meeting the Debentureholders present in person or by proxy
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shall form a quorum and may transact the business for which the meeting was
originally convened and a resolution proposed at such adjourned meeting and
passed by the requisite vote as provided in subsection 13.13(1) shall be an
extraordinary resolution within the meaning of this Trust Indenture,
notwithstanding that the holders of more than 50% in principal amount of the
Debentures then outstanding are not present in person or by proxy at such
adjourned meeting.
(3) Votes on an extraordinary resolution shall always be given on a poll
and no demand for a poll on an extraordinary resolution shall be necessary.
SECTION 13.14. Minutes. Minutes of all resolutions and proceedings at every
such meeting as aforesaid shall be made and duly entered in books to be from
time to time provided for that purpose by the Trustee at the expense of the
Bank, and any such minutes as aforesaid, if signed by the chairman of the
meeting at which such resolutions were passed or proceedings had, or by the
chairman of the next succeeding meeting of the Debentureholders, shall be prima
facie evidence of the matters therein stated and, until the contrary is proved,
every such meeting, in respect of the proceedings of which minutes shall have
been made, shall be deemed to have been duly held and convened, and all
resolutions passed thereat or proceedings had, to have been duly passed and had.
SECTION 13.15. Instruments in Writing. All actions that may be taken and
all powers that may be exercised by the Debentureholders at a meeting held as
hereinbefore in this Article Thirteen provided may also be taken and exercised
by the holders of not less than 66 2/3% in principal amount of all the
outstanding Debentures by an instrument in writing signed in one or more
counterparts and the expression "extraordinary resolution" when used in this
Trust Indenture shall include an instrument so signed.
SECTION 13.16. Binding Effect of Resolutions. Subject to the provisions of
section 13.17, every resolution and every extraordinary resolution passed in
accordance with the provisions of this Article Thirteen at a meeting of
Debentureholders shall be binding upon all the Debentureholders, whether present
at or absent from such meeting, and every instrument in writing signed by
Debentureholders in accordance with section 13.15 shall be binding upon all the
Debentureholders, whether signatories thereto or not, and each and every
Debentureholder and the Trustee (subject to the provisions for
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its indemnity herein contained) shall be bound to give effect accordingly to
every such resolution, extraordinary resolution and instrument in writing.
SECTION 13.17. Serial Meetings.
(1) If any business to be transacted at a meeting of Debentureholders, or
any action to be taken or power to be exercised by instrument in writing under
section 13.15, especially affects the rights of the holders of Debentures of one
or more series or maturities in a manner or to an extent substantially differing
from that in or to which it affects the rights of the holders of Debentures of
any other series or maturity (as to which an opinion of counsel shall be binding
on all Debentureholders, the Trustee and the Bank for all purposes hereof) then:
(a) reference to such fact, indicating each series or maturity so
especially affected, shall be made in the notice of such meeting and the
meeting shall be and is herein called a "serial meeting"; and
(b) the holders of Debentures of a series or maturity so especially
affected shall not be bound by any action taken at a serial meeting or by
instruments in writing under section 13.15 unless in addition to compliance
with the other provisions of this Article:
(i) at such serial meeting:
(A) there are present in person or by proxy holders of at
least 25% (or for the purpose of passing an extraordinary
resolution more than 50%) in principal amount of the outstanding
Debentures of such series or maturity, subject to the provisions
of this Article as to adjourned meetings; and
(B) the resolution is passed by the favourable votes of the
holders of more than 50% (or in the case of an extraordinary
resolution not less than 66 2/3%) in principal amount of
Debentures of such series or maturity voted on the resolution; or
(ii) in the case of action taken or power exercised by instrument
in writing under section 13.15, such instrument is signed in one or
more counterparts by the holders of not less than 66 2/3% in
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principal amount of the outstanding Debentures of such series or
maturity.
(2) If in the opinion of counsel any business to be transacted at any
meeting, or any action to be taken or power to be exercised by instrument in
writing under section 13.15, does not adversely affect the rights of the holders
of Debentures of one or more particular series or maturities, the provisions of
this Article Thirteen shall apply as if the Debentures of such series or
maturity were not outstanding and no notice of any such meeting need be given to
the holders of Debentures of such series or maturity. Without limiting the
generality of the foregoing, a proposal to modify or terminate any covenant or
agreement which by its terms is effective only so long as Debentures of a
particular series or maturity are outstanding shall be deemed not to adversely
affect the rights of the holders of Debentures of any other series or maturity.
(3) A proposal (i) to extend the maturity of Debentures of any particular
series or maturity or reduce the principal amount thereof or the rate of
interest or redemption premium thereon, (ii) to modify or terminate any covenant
or agreement which by its terms is effective only so long as Debentures of a
particular series are outstanding, or (iii) to reduce with respect to holders of
Debentures of any particular series any percentage stated in section 1.01,
10.06, 13.04, 13.07, 13.13 or 13.15 or in this section 13.17, shall be deemed to
especially affect the rights of the holders of Debentures of such series or
maturity, as the case may be, in a manner substantially differing from that in
which it affects the rights of holders of Debentures of any other series or
maturity, whether or not a similar extension, reduction, modification or
termination is proposed with respect to Debentures of any or all other series
and maturities.
ARTICLE FOURTEEN
SUPPLEMENTAL INDENTURES
SECTION 14.01. Execution of Supplemental Indentures. From time to time the
Bank (when authorized by a resolution of its directors) and the Trustee may,
subject to the provisions of these presents, and they shall, when so directed by
these presents, execute and deliver by their proper officers, indentures or
other instruments supplemental hereto, which thereafter shall form part hereof,
for any one or more or all of the following purposes:
53
(a) establishing the terms of any subsequent series of Debentures and
the forms and denominations in which they may be issued as provided in
Article Two;
(b) adding to the covenants of the Bank herein contained for the
protection of the holders of the Debentures, or of the Debentures of any
series, and providing for events of default in addition to those specified
in Article Ten;
(c) evidencing the succession of successor banks to the Bank and the
covenants of and obligations assumed by such successor banks in accordance
with the provisions of Article Twelve;
(d) giving effect to any extraordinary resolution passed as provided
in Article Thirteen;
(e) adding to or altering the provisions hereof in respect of the
registration and transfer of Debentures, making provision for the issue of
Debentures in forms or denominations other than those herein provided for
and for the exchange of Debentures of different forms and denominations and
making any modifications in the forms of the Debentures and coupons which
in the opinion of the Trustee do not affect the substance thereof;
(f) making any additions to, deletions from or alterations of the
provisions of this Trust Indenture which the Bank may deem necessary or
advisable in order to facilitate the sale of the Debentures and which, in
the opinion of the Trustee, do not adversely affect in any substantial
respect the interests of the holders of the Debentures, or any series or
maturity thereof then outstanding, including without limiting the
generality of the foregoing such additions, deletions and alterations,
including provision for the appointment of an additional trustee or a
co-trustee in any jurisdiction, as would be required to comply with the
provisions relating to trust indentures contained in any corporations act,
securities act, trust indenture act or similar legislation in any
jurisdiction in which the Bank may desire to sell the Debentures;
(g) making any additions to, deletions from or alterations of the
provisions of this Trust Indenture which in the opinion of counsel may
54
from time to time be necessary or advisable to conform the same to
applicable legislation as that term is defined in subsection 15.01(1); and
(h) for any other purpose not inconsistent with the terms of this
Trust Indenture, including the correction or rectification of any
ambiguities, defective provisions, errors or omissions herein, provided
that in the opinion of the Trustee the rights of the Trustee or of the
Debentureholders are in no way prejudiced thereby.
ARTICLE FIFTEEN
CONCERNING THE TRUSTEE
SECTION 15.01. Trust Indenture Legislation.
(1) In this Article the term "applicable legislation" means the provisions,
if any, of any statute of Canada or a province thereof, and of regulations under
any such statute, relating to trust indentures and to the rights, duties and
obligations of trustees under trust indentures and of corporations issuing debt
obligations under trust indentures, to the extent that such provisions are at
the time in force and applicable to this Trust Indenture.
(2) If and to the extent that any provision of this Trust Indenture limits,
qualifies or conflicts with a mandatory requirement of applicable legislation,
such mandatory requirement shall prevail.
(3) The Bank and the Trustee agree that each will at all times in relation
to this Trust Identure and any action to be taken hereunder, observe and comply
with and be entitled to the benefits of applicable legislation.
SECTION 15.02. Rights and Duties of Trustee.
(1) In the exercise of the rights, duties and obligations prescribed or
conferred by the terms of this Trust Indenture, the Trustee shall act honestly
and in good faith with a view to the best interests of the Debentureholders and
shall exercise that degree of care, diligence and skill that a reasonably
prudent trustee would exercise in comparable circumstances.
55
(2) Subject only to subsection 15.02(1), the obligation of the Trustee to
commence or continue any act, action or proceeding for the purpose of enforcing
any rights of the Trustee or the Debentureholders hereunder shall be conditional
upon the Debentureholders furnishing, when required by notice in writing by the
Trustee, sufficient funds to commence or continue such act, action or proceeding
and indemnity reasonably satisfactory to the Trustee to protect and hold
harmless the Trustee against the costs, charges and expenses and liabilities to
be incurred thereby and any loss and damage it may suffer by reason thereof.
None of the provisions contained in this Trust Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties or in the exercise of any of its rights
or powers unless indemnified as aforesaid.
(3) The Trustee may, before commencing or at any time during the
continuance of any such act, action or proceeding, require the Debentureholders
at whose instance it is acting to deposit with the Trustee the Debentures held
by them, for which Debentures the Trustee shall issue receipts.
(4) Every provision of this Trust Indenture that by its terms relieves the
Trustee of liability or entitles it to rely upon any evidence submitted to it,
is subject to the provisions of applicable legislation and of this section 15.02
and of sections 15.03 and 15.04.
SECTION 15.03. Evidence of Compliance.
(1) The Bank shall furnish the Trustee with evidence of compliance with the
conditions of this Trust Indenture:
(a) in respect of, and before doing any act relating to, the issue,
certification and delivery of Debentures hereunder or the satisfaction and
discharge of this Trust Indenture; and
(b) upon the demand of the Trustee, in respect of any act to be done
by the Trustee at the request of the Bank.
(2) Evidence of compliance required under subsection 15.03(1) shall consist
of (a) a statutory declaration or certificate made by a director or an officer
of the Bank stating that the conditions of this Trust Indenture have been
56
complied with and, where required by this Trust Indenture, (b) an opinion of
counsel that such conditions have been complied with.
(3) Evidence of compliance referred to in subsection 15.03(2) shall
include a statement by the person giving the evidence:
(a) declaring that he has read and understands the conditions of this
Trust Indenture referred to in subsection 15.03(1);
(b) describing the nature and scope of the examination or
investigation on which the certificate, statement or opinion is based; and
(c) declaring that he has made such examination or investigation as he
believes necessary to enable him to make the statements or give the
opinions contained or expressed therein.
SECTION 15.04. Evidence, Experts and Advisers.
(1) In addition to the reports, certificates, opinions and other evidence
required by this Trust Indenture, the Bank shall furnish to the Trustee such
additional evidence of compliance with any provision hereof, and in such form,
as may be prescribed by applicable legislation or as the Trustee may reasonably
require by written notice to the Bank.
(2) In the exercise of its rights, duties and obligations, the Trustee may,
if it is acting in good faith, rely as to the truth of the statements and the
accuracy of the opinions expressed therein, upon statutory declarations,
opinions, reports, certificates or other evidence referred to in subsection
15.04(1) provided that such evidence complies with applicable legislation and
that the Trustee examines the same in order to determine whether such evidence
indicates compliance with the applicable requirements of this Trust Indenture.
(3) Whenever applicable legislation requires that evidence referred to in
subsection 15.04(1) be in the form of a statutory declaration, the Trustee may
accept such statutory declaration in lieu of a certificate of the Bank required
by any provision hereof. Any such statutory declaration may be made by one or
more of the chairman, the president, the secretary, the comptroller, the chief
accountant, or any vice-president, assistant secretary or director of the Bank.
57
(4) Proof of the execution of an instrument in writing, including a
Debentureholders' Request, by any Debentureholder may be made by the certificate
of a notary public, or other officer with similar powers, that the person
signing such instrument acknowledged to him the execution thereof, or by an
affidavit of a witness to such execution or in any other manner which the
Trustee may consider adequate.
(5) The Trustee may employ or retain such counsel, accountants, engineers,
appraisers or other experts or advisers as it may reasonably require for the
purpose of discharging its duties hereunder and shall not be responsible for any
misconduct on the part of any of them.
SECTION 15.05. Documents, Moneys, etc., Held by Trustee. Any securities,
documents of title or other instruments that may at any time be held by the
Trustee subject to trusts hereof may be placed in the deposit vaults of the
Trustee or of the Bank or of any other Canadian chartered bank or deposited for
safekeeping with any such bank. Pending the application or withdrawal of any
moneys so held under any provision of this Trust Indenture, the Trustee, unless
it is herein otherwise expressly provided, may deposit the same in the name of
the Trustee in the Bank or in any other Canadian chartered bank at the rate of
interest (if any) then current on similar deposits or, if so directed by written
order of the Bank, shall (i) deposit such moneys in the deposit department of
the Trustee or any other loan or trust company authorized to accept deposits
under the laws of Canada or a province thereof, or (ii) invest such moneys in
securities issued or guaranteed by the Government of Canada or a province
thereof or in obligations, maturing not more than one year from the date of
investment, of the Bank or of any other Canadian chartered bank or loan or trust
company. Unless an event of default or an other default shall have occurred and
be continuing, all interest or other income received by the Trustee in respect
of such deposits and investments shall belong to the Bank.
SECTION 15.06. Action by Trustee to Protect Interests. The Trustee shall
have power to institute and to maintain such actions and proceedings as it may
consider necessary or expedient to preserve, protect or enforce its interests
and the interests of the Debentureholders.
SECTION 15.07. Trustee not Required to Give Security. The Trustee shall
not be required to give any bond or security in respect of the execution of
58
the trusts and powers of this Trust Indenture or otherwise in respect of the
premises.
SECTION 15.08. Protection of Trustee. By way of supplement to the
provisions of any law for the time being relating to trustees, it is expressly
declared and agreed as follows:
(1) The Trustee shall not be liable for or by any reason of any statements
of fact or recitals in this Trust Indenture or in the Debentures (except in the
certificate of the Trustee thereon) or required to verify the same, but all such
statements or recitals are and shall be deemed to be made by the Bank.
(2) Nothing herein contained shall impose any obligation on the Trustee to
see to or to require evidence of the registration or filing (or renewal thereof)
of this Trust Indenture or any instrument ancillary or supplemental hereto.
(3) The Trustee shall not be bound to give notice to any person or persons
of the execution hereof.
(4) The Trustee shall not incur any liability or responsibility whatever or
be in any way responsible for the consequence of any breach on the part of the
Bank of any of the covenants herein contained or of any acts of the agents or
servants of the Bank.
(5) The Trustee, in its personal or any other capacity, may buy, lend upon
and deal in shares in the capital of the Bank and in the Debentures and
generally may contract and enter into financial transactions with the Bank
without being liable to account for any profit made thereby.
SECTION 15.09. Replacement of Trustee. The Trustee may resign its trust and
be discharged from all further duties and liabilities hereunder by giving to the
Bank three months' notice in writing or such shorter notice as the Bank may
accept as sufficient. The Debentureholders by extraordinary resolutions shall
have power at any time to remove the Trustee and to appoint a new Trustee. In
the event of the Trustee resigning or being removed as aforesaid or being
dissolved, becoming bankrupt, going into liquidation or otherwise becoming
incapable of acting hereunder, the Bank shall forthwith appoint a new Trustee
unless a new Trustee has already been appointed by the Debentureholders; but any
new Trustee so appointed by the Bank shall be
59
subject to removal as aforesaid by the Debentureholders. Any new Trustee
appointed under any provision of this section 15.09 shall be a corporation
authorized to carry on the business of a trust company in Canada. On any new
appointment the new Trustee shall be vested with the same powers, rights, duties
and responsibilities as if it had been originally named herein as Trustee
without any further assurance, conveyance, act or deed; but there shall be
immediately executed, at the expense of the Bank, all such conveyances or other
instruments as may, in the opinion of counsel, be necessary or advisable for the
purpose of assuring the same to the new Trustee.
SECTION 15.10. Conflict of Interest. The Trustee represents that at the
time of the execution and delivery hereof no material conflict of interest
exists in the Trustee's role as a fiduciary hereunder and agrees that in the
event of a material conflict of interest arising hereafter it will, within
ninety days after ascertaining that it has such material conflict of interest,
either eliminate the same or resign its trust hereunder.
SECTION 15.11. Acceptance of Trust. The Trustee hereby accepts the trusts
in this Trust Indenture declared and provided for and agrees to perform the same
upon the terms and conditions herein set forth.
ARTICLE SIXTEEN
NOTICES
SECTION 16.01. Notice to Debentureholders. Unless herein otherwise
expressly provided, any notice to be given hereunder to Debentureholders shall
be deemed to be validly given:
(a) to the holders of registered Debentures if such notice is sent by
first class unregistered surface or air mail, postage prepaid, addressed to
such holders at their respective addresses appearing on the register
maintained under Article Four; and if in the case of joint holders of any
Debentures more than one address appears in the register of such joint
holding, such notice shall be addressed only to the first address so
appearing; and
(b) to the holders of unregistered Debentures if such notice is
published once in each of the cities of Xxxxxxxx, Xxxxxxx, Xxxxxxx and
60
Vancouver, each such publication to be made in a daily newspaper in the
English or French language, or both languages, of general circulation in
the designated cities and approved by the Trustee; provided that in the
case of notice convening a meeting of Debentureholders, the Trustee may
require such additional publications of such notice, in the same or in
other cities or both, as it may deem necessary for the reasonable
protection of the Debentureholders.
Any notice so given by mail shall be deemed to have been given on the day of
mailing. Any notice so given by publication shall be deemed to have been given
when such notice shall have been published once in each of the cities in which
publication thereof was required under the foregoing provisions. In determining
under any provision hereof the date when notice of any meeting, redemption or
other event must be given, the date of giving the notice shall be included and
the date of the meeting, redemption or other event shall be excluded. Accidental
error or omission in giving notice or accidental failure to mail notice to any
Debentureholder shall not invalidate any action or proceeding founded thereon.
SECTION 16.02. Notice to the Trustee. Any notice to the Trustee under the
provisions of this Trust Indenture shall be valid and effective if delivered to
an officer of the Trustee or if sent by registered mail, postage prepaid,
addressed to the Trustee at its principal office in Montreal, Quebec. Notice by
mail shall be deemed to have been effectively given at the time when in the
ordinary course of mail the same should have reached its destination.
SECTION 16.03. Notice to the Bank. Any notice to the Bank under the
provisions of this Trust Indenture shall be valid and effective if delivered to
an officer of the Bank or if sent by registered mail, postage prepaid, addressed
to the Bank at 000, xxx Xx-Xxxxxxx, Xxxxxxxx, Xxxxxx to the attention of the
secretary. Notice by mail shall be deemed to have been effectively given at the
time when in the ordinary course of mail the same should have reached its
destination. The Bank may from time to time notify the Trustee of a change in
address which thereafter, until changed by like notice, shall be the address of
the Bank for all purposes of this Trust Indenture.
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ARTICLE SEVENTEEN
FORMS OF SERIES 9 DEBENTURES
SECTION 17.01. Form of Temporary Global Debenture. The Series 9 Debentures
will initially be represented by the Temporary Global Debenture and the form of
the Temporary Global Debenture and Trustee's certificate shall be substantially
as follows:
(FORM OF GLOBAL DEBENTURE)
TEMPORARY GLOBAL DEBENTURE U.S. $250,000,000
BANK OF MONTREAL
(Incorporated under the laws of Canada)
FLOATING RATE DEBENTURES, SERIES 9, DUE 1996
This Temporary Global Debenture and the Debentures evidenced hereby have
not been registered under the United States Securities Act of 1933. Except for
certain sales to branches located outside the United States of United States
banks and to institutional investors in the United States, subject to
limitations referred to in the Issue Card dated April 10, 1984 circulated by
Exchange Statistical Services Ltd. relating hereto ("Qualified U.S.
Purchasers"), neither this Temporary Global Debenture nor any portion hereof may
be offered, sold or delivered, directly or indirectly, in the United States of
America (including Puerto Rico, territories and possessions of the United States
and any other area subject to its jurisdiction), or to or for the account of
persons ("U.S. Persons") who are residents or nationals thereof (including the
estate of any such person and any corporation, partnership or other entity
organized under the laws thereof or any political subdivision thereof).
This Temporary Global Debenture is an interim Series 9 Debenture without
coupons in respect of a duly authorized issue of Debentures of Bank of Montreal
(the "Bank") designated as specified in the title hereof (the "Series 9
Debentures") limited to an aggregate principal amount of U.S. $250,000,000 and
issued pursuant to an indenture bearing formal date of April 26, 1984 between
the Bank and The Royal Trust Company (the "Trustee"), as trustee for the
Debentureholders (the "Indenture"). This
62
Temporary Global Debenture is exchangeable in whole or in part upon request of
the holder for definitive Debentures in either of the forms set forth in the
Indenture ("Definitive Series 9 Debentures") at the offices of the Exchange
Agent at Xxxxx Xxxxx Xxxxx, 00-00 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxx on or after
(but not before) the Exchange Date; and the Exchange Agent shall deliver free
of charge in full or partial exchange for this Temporary Global Debenture,
Definitive Series 9 Debentures in an aggregate principal amount equal to the
principal amount of this Temporary Global Debenture submitted for exchange
provided that there shall have been presented to the Exchange Agent a
certificate or certificates as to beneficial ownership in the forms available at
the aforementioned offices of the Exchange Agent in London, England, to the
effect that the beneficial owners of such Series 9 Debentures are not U.S.
Persons or persons who have purchased such Series 9 Debentures for resale to any
such U.S. Person, or are Qualified U.S. Purchasers.
Except as provided herein, this Temporary Global Debenture must be
exchanged for Definitive Series 9 Debentures before interest can be collected.
Payment of interest upon the Series 9 Debentures due on an Interest Payment
Date occurring prior to the Exchange Date will be made by the Bank to the
Euro-clear Operator. Upon receipt by the Euro-clear Operator of a certificate
or certificates that as of such Interest Payment Date the portion of the
Temporary Global Debenture on which interest is to be credited as hereinafter
provided either (i) is not beneficially owned by a U.S. Person or any person who
has purchased its interest in the Temporary Global Debenture for resale to such
a U.S. Person or (ii) is beneficially owned by a Qualified U.S. Purchaser, it
will credit such interest to the respective accounts of the persons for whom it
holds this Temporary Global Debenture from whom it has received such a
certificate. On the Exchange Date, the Euro-clear Operator shall pay to the
Exchange Agent the amount, if any, of interest relating to portions of the
Temporary Global Debenture with respect to which no such certificate shall
have been received, and any beneficial owner of a portion of the Temporary
Global Debenture who did not receive payment of the interest due on such
Interest Payment Dates prior to the Exchange Date shall look only to the
Exchange Agent for any payment to which such beneficial owner may be entitled,
and all liability of the Euro-clear Operator with respect to such payment shall
thereupon cease. Upon delivery of each of the Definitive Series 9 Debentures in
exchange for the Temporary Global Debenture (or portions thereof), the Exchange
Agent will pay to such holders of Definitive Series 9
63
(Form of Trustee's Certificate)
TRUSTEE'S CERTIFICATE
This Temporary Global Debenture is an interim Series 9 Debenture issued
under the Indenture within mentioned.
THE ROYAL TRUST COMPANY
Trustee
By:
------------------------------------
Authorized Officer
SECTION 17.02. Form of Coupon Debenture. The form of the coupon Debenture
for the Series 9 Debentures, the Trustee's certificate and the interest coupon
appertaining thereto shall be substantially as follows:
(FORM OF COUPON DEBENTURE)
THIS IS NOT AN INSURED DEPOSIT AS DEFINED
BY THE CANADA DEPOSIT INSURANCE CORPORATION ACT
ANY UNITED STATES PERSON WHO HOLDS THIS DEBENTURE WILL BE SUBJECT TO LIMITATIONS
UNDER UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN
SECTIONS 165(j) and 1232(c) OF THE INTERNAL REVENUE CODE OF 1954 (AS AMENDED).
66
U.S. $10,000 No._______
BANK OF MONTREAL
(Incorporated under the laws of Canada)
FLOATING RATE DEBENTURES, SERIES 9, DUE 1996
BANK OF MONTREAL (hereinafter called the "Bank"), for value received hereby
acknowledges itself indebted and promises to pay to the bearer hereof on the
Interest Payment Date (as defined in the Indenture) in April 1996, or on such
earlier date as the principal hereof may become due in accordance with the
provisions of the Indenture, the principal sum of TEN THOUSAND DOLLARS ($10,000)
in lawful money of the United States of America, on presentation and surrender
of this Debenture at any of the places herein mentioned and to pay interest on
the said principal sum from April 26, 1984 or from such other date on which the
Series 9 Debentures are initially issued, whichever is the later, four times
yearly on the Interest Payment Dates in January, April, July and October in each
year, commencing with the Interest Payment Date in July 1984, at the Rate of
Interest for each Interest Period as determined by the Agent Bank (all as set
forth and as defined in the Indenture), together with the Tax Indemnity herein
mentioned, if applicable, upon presentation and surrender of the respective
interest coupons appertaining hereto as they severally become due; and should
the Bank at any time make default in the payment of any principal of or interest
on this Debenture or any Tax Indemnity, to pay interest on the amount in default
at the Rate of Interest applicable during such period of default, in like money,
at the same places and four times yearly on the same Interest Payment Dates,
together with Tax Indemnity, if applicable. The minimum rate of interest
payable by the Bank on the said principal sum shall not be less that five per
cent (5%) per annum.
The Series 9 Debentures are issuable in bearer form in the denomination of
U.S. $10,000, with interest coupons attached ("coupon Series 9 Debentures") or,
at the holder's option, in fully registered form in denominations of U.S.
$10,000 and integral multiples thereof ("registered Series 9 Debentures"). Title
to coupon Series 9 Debentures will pass by delivery.
Payment of the principal of, Tax Indemnity, if any, and interest on the
coupon Series 9 Debentures will be made at the specified offices of any of the
67
paying agents outside of the United States as the Bank shall from time to time
appoint pursuant to the Indenture and may, at the holder's option and subject to
applicable laws and regulations, be made by cheque or bank draft in U.S. dollars
drawn on, or by transfer to a U.S. dollar account maintained by the holder with,
a bank in New York City. In the event that the full amount of the coupon Series
9 Debentures and interest coupons appertaining thereto may not be so paid
because such payments would be illegal or effectively precluded due to the
imposition of exchange controls or other similar restrictions on the full
payment or receipt of principal or interest in U.S. dollars, then the Bank
shall designate a paying agent in New York City from which such payments will be
made. The paying agents initially appointed by the Bank outside of the United
States are the main offices of Bank of Montreal in London (the "principal paying
agent"), Bank of Montreal in Montreal, Xxxxxx Guaranty Trust Company of New York
in Brussels, Union de Banques Suisses (Luxembourg) S.A. in Luxembourg and Union
Bank of Switzerland in Zurich. The Bank reserves the right to terminate the
appointment of any paying agent and to appoint other such paying agents upon the
terms and subject to the conditions provided in the Indenture.
If the Bank is required to withhold or deduct any amount from the principal
of or interest (including interest on amounts in default) on this Debenture on
account of any present or future taxes, duties, assessments or governmental
charges of whatsoever nature imposed or levied by or on behalf of the Government
of Canada or any province or other political subdivision thereof or any
authority or agency therein or thereof having power to tax, the Bank shall pay
to the holder hereof such additional amounts ("Tax Indemnity") as will result in
the payment to the holder of this Debenture or to the holder of the respective
coupons appertaining hereto of the amount which would otherwise have been
payable in respect of this Debenture or such coupons; provided, however, that no
Tax Indemnity shall be payable with respect to this Debenture or any coupon: (a)
to a holder who is liable to tax thereon by reason of his being connected with
Canada otherwise than merely by the holding or ownership of this Debenture or
any coupon, or (b) if presented for payment more than 15 days after the Relevant
Date (as hereinafter defined), except to the extent that such holder would have
been entitled to Tax Indemnity on presenting the same for payment within such
period of 15 days. For the foregoing purpose, the "Relevant Date" means the
later of: (i) the date on which the payment in respect of this Debenture or any
coupon appertaining hereto first becomes due and payable, and (ii) if the full
68
amount of the moneys payable on such date has not been received prior to such
date by the principal paying agent in London or by the Trustee, the date on
which notice is duly given to the holders of Series 9 Debentures that such
moneys have been so received.
The Series 9 Debentures, of which this is one, are issued pursuant to an
indenture bearing formal date of April 26, 1984 between the Bank and The Royal
Trust Company (the "Trustee"), as trustee for the Debentureholders (the
"Indenture"). The Series 9 Debentures, in the event of the insolvency or
winding-up of the Bank, rank equally and rateably with all other debentures of
the Bank from time to time issued and outstanding under the Indenture, an
indenture dated as of February 1, 1978 and indentures supplemental thereto, and
a trust agreement dated as of April 1, 1972 and agreements supplemental thereto.
As provided in the indenture and in the Bank Act (Canada) payment of all amounts
owing hereunder is subordinated to the deposit liabilities and all other
liabilities of the Bank other than those ranking equally with or subordinate to
the Series 9 Debentures. Reference is made to the Indenture for a further
statement of the rights of the holders of Series 9 Debentures, of the Bank and
of the Trustee to the same effect as if the provisions of the Indenture were set
forth herein in full. A copy of the Indenture may be inspected at the principal
office of the Trustee in Montreal or at the main offices of the paying agents
referred to herein.
The Series 9 Debentures will not be redeemable on or before the Interest
Payment Date in April 1989. After the Interest Payment Date in April 1989, the
Series 9 Debentures may be redeemed at the option of the Bank, in whole, but not
in part, on any Interest Payment Date, on not less than 30 days' notice, at a
price equal to the principal amount thereof together with unpaid interest
accrued to the date fixed for redemption plus Tax Indemnity, if applicable.
The Indenture provides for the creation of a segregated fund (the "Fund")
to be held by the Trustee. Unless the Series 9 Debentures have been accelerated
upon the occurrence of an event of default or except as otherwise provided in
the Indenture with respect to redemption at the option of the Bank, the
principal of the Series 9 Debentures shall be payable prior to their stated
final maturity date solely from funds in the Fund. The Fund has been created for
certain United States bank regulatory purposes and, although it is expected
69
to provide a source of funds for the payment of the Series 9 Debentures, the
Fund will not constitute security for the Series 9 Debentures.
The Indenture provides that payment of principal of the Series 9 Debentures
may be accelerated only in case of certain events involving the insolvency or
winding-up of the Bank. There is no right of acceleration in the case of a
default in the performance of any covenant of the Bank in the Indenture or in
the Series 9 Debentures, including payment of interest on the Series 9
Debentures by the Bank.
The Indenture provides also, among other things, for: (a) the exchange of
coupon Series 9 Debentures for registered Series 9 Debentures or registered
Series 9 Debentures for coupon Series 9 Debentures, provided that neither the
Bank nor the Trustee will be required to make an exchange if as a result thereof
it would incur adverse consequences under United States tax law; and (b) the
holding of meetings of Debentureholders and for making binding on all
Debentureholders certain decisions taken thereat.
Any notice, including notice of redemption, to the holders of the coupon
Series 9 Debentures shall be given by publication once in one leading London
daily newspaper or, if that is not possible, in one other leading English
language daily newspaper of general circulation in Europe.
The Bank and the Trustee may deem and treat the bearer hereof and the
bearer of any coupon appertaining to this Series 9 Debenture as the absolute
owner thereof for all purposes and neither the Bank nor the Trustee shall be
affected by notice to the contrary.
The Indenture, this Debenture and the coupons appertaining hereto shall be
governed by and construed in accordance with the laws of the Province of Quebec
and the laws of Canada applicable therein.
This Debenture and the coupons appertaining hereto shall not become
obligatory for any purpose until this Debenture is certified by or on behalf of
the Trustee for the time being under the Indenture.
70
IN WITNESS WHEREOF this Debenture has been duly executed, the corporate
seal of the Bank affixed hereon and dated April 26, 1984.
BANK OF MONTREAL
By: And:
--------------------------------- -----------------------------------
Secretary Chairman
(Seal)
71
(Form of Trustee's Certificate)
TRUSTEE'S CERTIFICATE
This Debenture is one of the Series 9 Debentures issued under the Indenture
within mentioned.
THE ROYAL TRUST COMPANY
TRUSTEE
By
-------------------------------------
Authorized Officer
(Form of Interest Coupon)
BANK OF MONTREAL will pay to the bearer on the Interest Payment Date in
January (April, July or October) 19__, unless the undermentioned Debenture shall
have been previously ca11ed for redemption and payment thereof duly provided
for, the Interest Amount determined by the Agent Bank which will include Tax
Indemnity, if applicable, at any of the places herein referred to, being one of
the four times yearly interest payments on its Floating Rate Debenture, Series
9, Due 1996, No. _________. Payment as aforesaid will be made at the specified
office of any of the paying agents outside of the United States appointed by the
Bank from time to time by cheque or bank draft in United States dollars drawn
on, or by transfer to a United States dollar account maintained by the holder
with, a bank in New York City, or as otherwise provided in the Indenture.
Coupon No. F
------------------------------------- ---------------------------
Secretary
NOTE: The phrase "unless the undermentioned Debenture shall have been previously
called for redemption and payment thereof duly provided for" shall appear
on those coupons maturing after April 26, 1989.
72
SECTION 17.03. Form of Registered Debenture. The form of the registered
Debenture for the Series 9 Debentures, the Trustee's certificate and the
transfer form thereon shall be substantially as follows:
(FORM OF REGISTERED DEBENTURE)
THIS IS NOT AN INSURED DEPOSIT AS DEFINED
BY THE CANADA DEPOSIT INSURANCE CORPORATION ACT
THIS DEBENTURE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933 AND MAY NOT BE OFFERED OR SOLD EXCEPT IN COMPLIANCE WITH SUCH ACT AND THE
REQUIREMENTS OF THE INDENTURE REFERRED TO BELOW. SPECIAL RESTRICTIONS MAY APPLY
TO THE REGISTRATION OF TRANSFER OF THIS DEBENTURE AND TO THE EXCHANGE OF THIS
DEBENTURE FOR A COUPON DEBENTURE.
U.S. $______________ No. _____
BANK OF MONTREAL
(Incorporated under the laws of Canada)
FLOATING RATE DEBENTURES, SERIES 9, DUE 1996
BANK OF MONTREAL (hereinafter called the "Bank"), for value received hereby
acknowledges itself indebted and promises to pay to _________________________ or
registered assigns, on the Interest Payment Date (as defined in the Indenture)
in April 1996, or on such earlier date as the principal hereof may become due in
accordance with the provisions of the Indenture, the principal sum of
________________________________________ ($_________) in lawful money of the
United States of America, on presentation and surrender of this Debenture at the
places herein mentioned and to pay interest on the said principal amount from
April 26, 1984, or from such other date on which the Series 9 Debentures are
initially issued or from the last Interest Payment Date
73
to which interest shall have been paid or made available for payment on the
outstanding Series 9 Debentures, whichever is the latest, four times yearly on
the Interest Payment Dates in January, April, July and October in each year,
commencing with the Interest Payment Date in July 1984, at the Rate of Interest
for each Interest Period as determined by the Agent Bank (all as set forth and
as defined in the Indenture), together with the Tax Indemnity herein mentioned,
if applicable; and should the Bank at any time make default in the payment of
any principal of or interest on this Debenture or any Tax Indemnity, to pay
interest on the amount in default at the Rate of Interest applicable during such
period of default, in like money, at the same places and four times yearly on
the same Interest Payment Dates, together with Tax Indemnity, if applicable. The
minimum rate of interest payable by the Bank on the said principal sum shall not
be less that five per cent (5%) per annum.
The Series 9 Debentures are issuable in bearer form in the denomination of
U.S. $10,000, with interest coupons attached ("coupon Series 9 Debentures") or,
at the holder's option, in fully registered form in denominations of U.S.
$10,000 and integral multiples thereof ("registered Series 9 Debentures").
Payment of interest and Tax Indemnity, if any, will be made to the holder
hereof on the applicable record date (except at final maturity or on redemption
when interest may at the option of the Bank be paid on surrender hereof) by
cheque or bank draft in U.S. dollars drawn on a bank in New York City mailed to
the holder at such holder's registered address, or, at the holder's option, by
transfer to a U.S. dollar account maintained by the holder with a bank in New
York City. Payment of the principal of this Debenture will be made against the
surrender hereof at the specified offices of any of the paying agents in New
York City, Montreal or any additional paying agents designated therefor by the
Bank pursuant to the Indenture and will be made by a cheque or bank draft in
U.S. dollars drawn on, or by transfer to a U.S. dollar account maintained by the
holder with, a bank in New York City.
The paying agent initially appointed by the Bank for the registered Series
9 Debentures is the main office of Bank of Montreal Trust Company in New York
City. In addition, the Bank has initially appointed the following as paying
agents for the Series 0 Xxxxxxxxxx xxxxxxx xx xxx Xxxxxx Xxxxxx: the main
offices of Bank of Montreal in London (the "principal paying agent"), Bank of
Montreal in Montreal, Xxxxxx Guaranty Trust Company of New York
74
in Brussels, Union de Banques Suisses (Luxembourg) S.A. in Luxembourg and Union
Bank of Switzerland in Zurich. The Bank reserves the right to terminate the
appointment of any paying agent and to appoint other such paying agents upon the
terms and subject to the conditions provided in the Indenture.
If the Bank is required to withhold or deduct any amount from the principal
of or interest (including interest on amounts in default) on this Debenture on
account of any present or future taxes, duties, assessments or governmental
charges of whatsoever nature imposed or levied by or on behalf of the Government
of Canada or any province or other political subdivision thereof or any
authority or agency therein or thereof having power to tax, the Bank shall pay
to the registered holder hereof such additional amounts ("Tax Indemnity") as
will result in the payment to the registered holder of this Debenture of the
amount which would otherwise have been payable in respect of the principal of or
interest on this Debenture; provided, however, that no Tax Indemnity shall be
payable with respect to this Debenture: (a) to a holder who is liable to tax
thereon by reason of his being connected with Canada otherwise than merely by
the holding or ownership of this Debenture, or (b) if presented for payment more
than 15 days after the Relevant Date (as hereinafter defined), except to the
extent that such holder would have been entitled to Tax Indemnity on presenting
this Debenture for payment within such period of 15 days. For the foregoing
purpose, the "Relevant Date" means the later of: (i) the date on which the
payment in respect of this Debenture first becomes due and payable, and (ii) if
the full amount of the moneys payable on such date has not been received prior
to such date by the principal paying agent in London or by the Trustee, the date
on which notice is duly given to the holders of Series 9 Debentures that such
moneys have been so received.
The Series 9 Debentures, of which this is one, are issued pursuant to an
indenture bearing formal date of April 26, 1984 between the Bank and The Royal
Trust Company (the "Trustee"), as trustee for the Debentureholders (the
"Indenture"). The Series 9 Debentures, in the event of the insolvency or
winding-up of the Bank, rank equally and rateably with all other debentures of
the Bank from time to time issued and outstanding under the Indenture, an
indenture dated as of February 1, 1978 and indentures supplemental thereto, and
a trust agreement dated as of April 1, 1972 and agreements supplemental thereto.
As provided in the Indenture and in the Bank Act (Canada) payment
75
of all amounts owing hereunder is subordinated to the deposit liabilities and
all other liabilities of the Bank other than those ranking equally with or
subordinate to the Series 9 Debentures. Reference is made to the Indenture for a
further statement of the rights of the holders of Series 9 Debentures, of the
Bank and of the Trustee to the same effect as if the provisions of the Indenture
were set forth herein in full. A copy of the Indenture may be inspected at the
principal office of the Trustee in Montreal or at the main offices of the paying
agents referred to herein.
The Series 9 Debentures will not be redeemable on or before the Interest
Payment Date in April 1989. After the Interest Payment Date in April 1989, the
Series 9 Debentures may be redeemed at the option of the Bank, in whole, but not
in part, on any Interest Payment Date, on not less than 30 days' notice, at a
price equal to the principal amount thereof together with unpaid interest
accrued to the date fixed for redemption plus Tax Indemnity, if applicable.
The Indenture provides for the creation of a segregated fund (the "Fund")
to be held by the Trustee. Unless the Series 9 Debentures have been accelerated
upon the occurrence of an event of default or except as otherwise provided in
the Indenture with respect to redemption at the option of the Bank, the
principal of the Series 9 Debentures shall be payable prior to their stated
final maturity date solely from funds in the Fund. The Fund has been created for
certain United States bank regulatory purposes and, although it is expected to
provide a source of funds for the payment of the Series 9 Debentures, the Fund
will not constitute security for the Series 9 Debentures.
The Indenture provides that payment of principal of the Series 9 Debentures
may be accelerated only in case of certain events involving the insolvency or
winding-up of the Bank. There is no right of acceleration in the case of a
default in the performance of any covenant of the Bank in the Indenture or in
the Series 9 Debentures, including payment of interest on the Series 9
Debentures by the Bank.
The Indenture provides also, among other things, for: (a) the exchange of
coupon Series 9 Debentures for registered Series 9 Debentures or registered
Series 9 Debentures for coupon Series 9 Debentures, provided that neither the
Bank nor the Trustee will be required to make an exchange if as a result thereof
it would incur adverse consequences under United States tax law; and
76
(b) the holding of meetings of Debentureholders and for making binding on all
Debentureholders certain decisions taken thereat.
Notices to holders of registered Series 9 Debentures of redemption or of
any variation of the paying agent in New York City will be given by first class
mail. All other notices shall be given by publication once in one leading London
daily newspaper or, if that is not possible, in one other leading English
language daily newspaper of general circulation in Europe.
This Debenture shall be transferable only at the principal office of the
Trustee in Montreal and at the principal office of Bank of Montreal Trust
Company in New York City and it may be transferred only by the registered holder
hereof in person or his attorney duly authorized in writing.
The Indenture and this Debenture shall be governed by and construed. in
accordance with the laws of the Province of Quebec and the laws of Canada
applicable therein.
This Debenture shall not become obligatory for any purpose until this
Debenture is certified by or on behalf of the Trustee for the time being under
the Indenture.
IN WITNESS WHEREOF this Debenture has been duly executed, the corporate
seal of the Bank affixed hereon and dated April 26, 1984.
BANK OF MONTREAL
By: And:
--------------------------------- -----------------------------------
Secretary Chairman
(Seal)
77
(Form of Trustee's Certificate)
TRUSTEE'S CERTIFICATE
This Debenture is one of the Series 9 Debentures issued under the Indenture
within mentioned.
THE ROYAL TRUST COMPANY
Trustee
By
-------------------------------------
Authorized Officer
(Form of Transfer)
FOR VALUE RECEIVED, the undersigned hereby assign(s) and transfer(s) unto
--------------------------------------------------------------------------------
the within Debenture, together with the principal thereof and all accrued
interest thereon, hereby irrevocably constituting and appointing
--------------------------------------------------------------------------------
attorney to transfer the said Debenture on the registers maintained for that
purpose with full power of substitution in the premises.
Dated 19
--------------- ----
In the presence of
------------------------------------- ----------------------------------------
78
ARTICLE EIGHTEEN
EXECUTION
SECTION 18.01. Counterparts and Formal Date. This Trust Indenture may be
executed in several counterparts, each of which so executed shall be deemed to
be an original, and such counterparts together shall constitute one and the same
instrument and notwithstanding their date of execution shall be deemed to bear
date as of April 26, 1984.
IN WITNESS WHEREOF the parties hereto have declared that it is their
express wish that these presents and all other documents related hereto be in
the English language and have executed these presents under their respective
corporate seals and the hands of their proper officers in that behalf.
BANK OF MONTREAL - BANQUE DE MONTREAL
By: /s/ Illegible
------------------------------------
Vice President and Secretary
And: /s/ Illegible
-----------------------------------
Assistant Secretary
THE ROYAL TRUST COMPANY -
COMPAGNIE TRUST ROYAL
By: /s/ Illegible
------------------------------------
AUTHORIZED OFFICER
And: /s/ Illegible
-----------------------------------
AUTHORIZED OFFICER
79
