Dated as of December 14, 1995
BANK OF MONTREAL - BANQUE DE MONTREAL
and
THE TRUST COMPANY OF BANK OF MONTREAL
- SOCIETE DE FIDUCIE BANQUE DE MONTREAL
TRUST INDENTURE
TABLE OF CONTENTS
PAGE NO.
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ARTICLE 1
INTERPRETATION
SECTION 1.1 Definitions ...................................... 2
SECTION 1.2 Meaning of "outstanding" for Certain Purposes .... 5
SECTION 1.3 Interpretation not Affected by Headings, etc. .... 6
SECTION 1.4 Applicable Law ................................... 6
SECTION 1.5 Debentureholders ................................. 6
SECTION 1.6 Dollar Amounts ................................... 6
ARTICLE 2
ISSUE OF DEBENTURES
SECTION 2.1 Limit of issue ................................... 7
SECTION 2.2 Subordinated indebtedness ........................ 7
SECTION 2.3 Issuance in Series ............................... 7
SECTION 2.4 Form of Debentures ............................... 8
SECTION 2.5 Form and Terms of Series 19 Debentures ........... 9
SECTION 2.6 Issue of Series 19 Debentures .................... 10
SECTION 2.7 Creation and Issue of Additional Debentures ...... 11
SECTION-2.8 Signing of Debentures ............................ 12
SECTION 2.9 Certification by Trustee ......................... 12
SECTION 2.10 Interim Debentures ............................... 12
SECTION 2.11 Cancellation of Matured Coupons .................. 13
SECTION 2.12 Issue in Substitution for Lost Debentures ........ 13
ARTICLE 3
REGISTRATION, TRANSFER, EXCHANGE AND OWNERSHIP OF DEBENTURES
SECTION 3.1 Registration and Transfer of Debentures .......... 14
SECTION 3.2 Exchange of Debentures ........................... 16
SECTION 3.3 Charges for Registration, Transfer and Exchange .. 16
SECTION 3.4 Limitation on obligation to Effect Transfers or
Exchanges ........................................ 16
I
SECTION 3.5 Register Open for Inspection ..................... 17
SECTION 3.6 Ownership of Debentures and Coupons .............. 17
SECTION 3.7 Global Debenture ................................. 18
SECTION 3.8 Limitation on Transfer and Exchange of Global
Debenture ........................................ 19
SECTION 3.9 Interest on Fully Registered Debentures .......... 20
ARTICLE 4
RANKING AND SUBORDINATION OF DEBENTURES
SECTION 4.1 Debentures Subordinated to Deposit Liabilities and
Other Indebtedness ............................... 21
SECTION 4.2 Further Assurances of Subordination .............. 21
ARTICLE 5
REDEMPTION AND PURCHASE OF DEBENTURES
SECTION 5.1 General .......................................... 21
SECTION 5.2 Restriction on Redemption of Series 19
Debentures ....................................... 22
SECTION 5.3 Places of Payment ................................ 22
SECTION 5.4 Notice of Redemption ............................. 22
SECTION 5.5 Payment of Redemption Price ...................... 23
SECTION 5.6 Purchase of Series 19 Debentures ................. 24
SECTION 5.7 Cancellation of Debentures ....................... 24
ARTICLE 6
CONVERSION OF SERIES 19 DEBENTURES INTO NEW DEBENTURES
SECTION 6.1 Conversion Option ................................ 24
SECTION 6.2 Supplemental Indenture for New Debentured ........ 25
SECTION 6.3 Exercise of the Conversion Option ................ 25
SECTION 6.4 Issues of New Debenture .......................... 25
SECTION 6.5 Trustee's Decision Final ......................... 25
SECTION 6.6 Cancellation of Series 19 Debentures ............. 25
SECTION 6.7 Delivery of Legal Opinion and Certificate of the
Bank ............................................. 26
ARTICLE 7
COVENANTS OF THE BANK
SECTION 7.1 General Covenants ................................ 28
SECTION 7.2 Trustee's Remuneration and Expenses .............. 28
II
SECTION 7.3 Not to Accumulate Interest ....................... 28
SECTION 7.4 Restriction on Senior indebtedness ............... 29
SECTION 7.5 Annual Certificate of Compliance ................. 29
SECTION 7.6 Trustee may Perform Covenants .................... 29
SECTION 7.7 Notification of Subordinated Indebtedness
Default .......................................... 30
ARTICLE 8
DEFAULTS AND ENFORCEMENT
SECTION 8.1 Events of Default ................................ 30
SECTION 8.2 Notice of Events of Default ...................... 30
SECTION 8.3 Acceleration on Default .......................... 31
SECTION 8.4 Bank Act Early Payment Restrictions .............. 31
SECTION 8.5 Waiver of Default ................................ 31
SECTION 8.6 Right of Trustee to Enforce Payment .............. 32
SECTION 8.7 Proceedings by the Trustee ....................... 32
SECTION 8.8 Suits by Debentureholders ........................ 33
SECTION 8.9 Application of Moneys Received by Trustee ........ 34
SECTION 8.10 Distribution of Proceeds ......................... 35
SECTION 8.11 Receipt of Debentureholders Good Discharge ....... 36
SECTION 8.12 Remedies Cumulative .............................. 36
SECTION 8.13 Trustee Appointed Attorney ....................... 36
SECTION 8.14 Limitation of Liability .......................... 36
SECTION 8.15 Judgment Against the Bank ........................ 36
ARTICLE 9
SATISFACTION AND DISCHARGE
SECTION 9.1 Cancellation and Destruction ..................... 37
SECTION 9.2 Non-Presentation of Debentures and Coupons ....... 37
SECTION 9.3 Repayment of Unclaimed Moneys to Bank ............ 38
SECTION 9.4 Release from Covenants ........................... 38
ARTICLE 10
SUCCESSOR BANK
SECTION 10.1 Certain Requirements ............................. 39
SECTION 10.2 Vesting of Powers in Successor Bank .............. 40
III
ARTICLE 11
MEETINGS OF DEBENTUREHOLDERS
SECTION 11.1 Right to Convene Meeting ......................... 40
SECTION 11.2 Notice ........................................... 40
SECTION 11.3 Chairperson ...................................... 40
SECTION 11.4 Quorum ........................................... 41
SECTION 11.5 Power to Adjourn ................................. 41
SECTION 11.6 Show of Hands .................................... 41
SECTION 11.7 Poll ............................................. 41
SECTION 11.8 Voting ........................................... 41
SECTION 11.9 Regulations Respecting Unregistered Debentures
and proxies ...................................... 42
SECTION 11.10 Bank and Trustee may be Represented .............. 43
SECTION 11.11 Powers Exercisable by Extraordinary Resolution ... 43
SECTION 11.12 Powers Cumulative ................................ 45
SECTION 11.13 Meaning of "Extraordinary Resolution" ............ 46
SECTION 11.14 Minutes .......................................... 46
SECTION 11.15 Instruments in Writing ........................... 47
SECTION 11.16 Binding Effect of Resolutions .................... 47
SECTION 11.17 Serial Meetings .................................. 47
ARTICLE 12
SUPPLEMENTAL INDENTURES
SECTION 12.1 Execution of Supplemental Indentures ............. 49
SECTION 12.2 No Conflict with Supplemental indenture .......... 50
ARTICLE 13
CONCERNING THE TRUSTEE"
SECTION 13.1 Trust Indenture Legislation ...................... 50
SECTION 13.2 Rights and Duties of Trustee ..................... 51
SECTION 13.3 Evidence of Compliance ........................... 51
SECTION 13.4 Evidence, Experts and Advisers ................... 53
SECTION i3.5 Documents, Moneys, etc., Held by Trustee ......... 55
SECTION 13.6 Action by Trustee to Protect Interests ........... 55
SECTION 13.7 Trustee not Required to Give Security ............ 56
SECTION 13.8 Protection of Trustee ............................ 56
SECTION 13.9 Replacement of Trustee ........................... 57
SECTION 13.10 Conflict of Interest ............................. 58
SECTION 13.11 Acceptance of Trust .............................. 58
IV
ARTICLE 14
NOTICES
SECTION 14.1 Notice to Debentureholders ....................... 58
SECTION 14.2 Notice to the Trustee ............................ 59
SECTION 14.3 Notice to the Bank ............................... 59
SECTION 14.4 Mail Service Interruption ........................ 59
ARTICLE 15
FORMS OF SERIES 19 DEBENTURES
SECTION 15.1 Form of Series 19 Debentures ..................... 60
ARTICLE 16
EXECUTION
SECTION 16.1 Counterparts and Formal Date ..................... 70
V
THIS INDENTURE made as of the 14th day December of ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ - BANQUE DE MONTREAL, a Canadian chartered bank
(hereinafter called the "Bank"),
OF THE FIRST PART,
And-
THE TRUST COMPANY OF BANK OF MONTREAL -
SOCIETE DE FIDUCIE BANQUE DE MONTREAL, a trust company incorporated under
the laws of Canada (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 indebtedness, described therein as subordinated indebtedness, in
accordance with the provisions of the Bank Act.
WHEREAS the Bank deems it desirable for its corporate purposes to create
and issue from time to time subordinated indebtedness, herein defined as
"Debentures", to be constituted in the manner hereinafter appearing and
WHEREAS all things necessary have been done and performed to make the
Debentures, and the instruments evidencing the same, 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;
AND WHEREAS the foregoing recitals are made as representations and
statements of fact by the Bank and not by the Trustee;
NOW THEREFORE THIS INDENTURE WITNESSETH and it is hereby agreed and
declared as follows:
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ARTICLE 1
INTERPRETATION
SECTION 1.1. Definitions. In this Trust Indenture, unless there is something in
the subject matter or context inconsistent therewith:
"additional Debentures" means any Debentures other than and in addition to
the Series 19 Debentures;
"affiliate" means when used with respect to a specified person, another
person that, directly or indirectly, controls or is controlled by or is under
common control with the person specified and, for purposes of this definition,
"control" means the beneficial ownership, directly or indirectly, of shares of
the subject person to which are attached more than 50% of the votes that may be
cast to elect directors of the subject person and "controlling" and "controlled"
have corresponding meanings;
"applicable regulations" has the meaning ascribed thereto in Section 11.9;
"Bank" means the Party of the First Part and every successor bank which
shall have complied with the provisions of Article 10;
"Bank Act" means the Bank Act (Canada), being Chapter 46 of the Revised
Statutes of Canada, 1991, 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;
"Business Day" shall mean a day on which banks are open for business in
Toronto and which is not a Saturday or a Sunday.
"certificate of the Bank" means a written certificate signed in the name of
the Bank by its chief executive officer, its president, any vice-chairman or any
vice-president together with 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
board of directors of the Bank or, when duly empowered, by a committee of the
board, and to be in full force and effect on the date of such certification;
"coupon Debentures" means Debentures which are issued with interest coupons
attached;
"coupons" means the interest coupons attached or appertaining to coupon
Debentures;
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"counsel" means a barrister or solicitor or firm of barristers and
solicitors retained by the Trustee or retained or employed 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 any Debentures created, issued and executed by the Bank
and certified and delivered by the Trustee from time to time pursuant to this
Trust Indenture and any additional Debentures created under an instrument
supplemental to this Trust Indenture, including, interim Debentures, definitive
Debentures, coupon Debentures, fully registered Debentures, registered
Debentures and unregistered Debentures;
"Debentureholders' Request" means an instrument signed in one or more
counterparts by the holder or holders of not less than 25% 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;
"definitive Debentures" means certificates evidencing Debentures in the
form specified in or provided for in this Trust Indenture or in a supplemental
instrument thereto;
"Depository" means with respect to any subsequent series of Debentures
issuable in whole or in part in the form of one or more global Debentures, the
person designated as Depositary by the Bank pursuant to subsection 3.7 hereof
until a successor Depositary shall have become such pursuant to the applicable
provisions of this Trust Indenture, and thereafter the term "Depositary" shall
mean or include each person who is then a Depositary hereunder and if at any
time there is more than one such person, the term "Depositary" as used with
respect to the Debentures of any series shall mean the Depositary with respect
to the Debentures of such series.
"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 a committee of the board;
"Event of Default" has the meaning attributed to it in Section 8.1;
"Existing Trust Indentures" means, collectively:
(i) the trust indenture dated as of February 1, 1978 between the Bank and The
Royal Trust Company, as trustee, providing for the issuance of debentures
of the Bank, as amended and supplemented by seventeen supplemental
indentures thereto;
(ii) the trust indenture dated as of July 23, 1986 between the Bank and The
Royal Trust Company, as trustee, providing for the issuance of debentures
of the Bank;
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(iii) the fiscal and paying agency agreement dated as of September 1, 1988
between the Bank and Bank of Montreal Trust Company, as fiscal agent,
providing for the issuance of notes of the Bank through its Chicago Branch;
(iv) the fiscal and paying agency agreement dated of September 15, 1993, between
the Bank and Bank of Montreal Trust Company, as fiscal agent, providing for
the issuance of notes of the Bank through its Chicago Branch; and
(v) the fiscal and paying agency agreement dated as of April 6, 1995, between
the Bank and Bank of Montreal Trust Company, as fiscal agent, providing for
the issuance of notes of the Bank through its Chicago Branch.
"Extraordinary Resolution" has the meaning attributed to it in Section
11.13;
" fully registered Debentures" means Debentures without coupons which are
registered as to principal and interest;
"Indebtedness" at any time means all deposit liabilities of the Bank and
all other liabilities and obligations of the Bank which in accordance with the
accounting rules established for Canadian chartered banks issued under the
authority of the Superintendent pursuant to the Bank Act or with generally
accepted accounting principles (the primary source of which is the Handbook of
the Canadian Institute of Chartered Accountants), as the case may be, would be
included in determining the total liabilities of the Bank at such time, other
than the liabilities for paid up capital, contributed surplus, retained
earnings, and general reserves of the Bank;
"interim Debentures" means the interim Debentures created and issued by the
Bank and certified and delivered by the Trustee upon receipt of a written order
of the Bank, in such form and denominations and signed in such manner as the
Bank may approve, entitling the holders thereof to definitive Debentures when
the same are ready for delivery;
"Legal Representative" means, in respect of any Debentureholder, the
Debentureholder's executors, administrators or other legal representatives or
the attorney of the debentureholder duly appointed by instrument in writing;
"officer" means, in relation to the Bank, the chief executive officer, the
president, a vice-chairman, a vice-president, a secretary, a controller, the
treasurer, and any other natural person designated as an officer of the Bank by
by-law or resolution of the directors;
"person" means an individual, a corporation, a partnership, a trust, a
trustee or an unincorporated syndicate, or association or organization, a Legal
Representative, Her Majesty in right of Canada or a province, an agency of Her
Majesty in either of such rights and the
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government of a foreign country or any political subdivision thereof or any
agency thereof; and pronouns have a similarly extended meaning;
"registered Debentures" means and includes both fully registered Debentures
and coupon Debentures registered as to principal only;
"series" shall mean a series of Debentures created and issued pursuant to a
supplemental instrument to this Trust Indenture and shall also include the
Series 19 Debentures created and issued under this Trust Indenture;
"subsidiary" means any company of which more than fifty percent (50%) of
the outstanding shares which carry voting rights at all times (provided that
ownership of such shares confers the right to elect at least a majority of the
directors of such company) are for the time being held directly or indirectly
by or for the Bank and includes any company in like relation to a subsidiary;
"Superintendent" means the Superintendent of Financial Institutions
Canada appointed pursuant to the Office of the Superintendent of Financial
Institutions Act (Canada);
"Trust 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, in its capacity as trustee
under this Trust Indenture and its successors for the time being in the trusts
hereby created;
"unregistered, Debentures" means Debentures which are not registered;
"written order of the Bank" means a written order signed in the name of
the Bank by the chief executive officer, the president or any vice-chairman or
any vice-president together with the secretary or another vice-president or an
assistant secretary and may consist of one or more instruments so executed; and
"written request of the Bank" has a similar meaning;
Words importing the singular number include the plural and vice versa and
words importing gender include the masculine, feminine and neuter genders; and
any reference in this Trust Indenture to any statute or section thereunder shall
be deemed to be a reference to such statute or section or regulation as amended
or re-enacted from time to time.
SECTION 1.2 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 redemption or payment
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thereof shall have been set aside under Section 9.2; or it shall have been
redeemed or purchased by the Bank pursuant to Article 5, provided that:
(1) Debentures which have been partially redeemed or purchased shall be deemed
to be outstanding only to the extent of the principal amount thereof not
redeemed or purchased pursuant to Article 5;
(2) where a new Debenture has been issued in substitution for a Debenture which
has been mutilated, lost, stolen or destroyed, only the new Debenture 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, directly or indirectly, or legally or equitably, by the Bank or any
subsidiary or affiliate 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 or any subsidiary or affiliate 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
fee from the control of the Bank or any subsidiary or affiliate.
SECTION 1.3 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.
SECTION 1.4 Applicable Law. This Trust Indenture and the Debentures and coupons
shall be construed in accordance with the laws of the Province of Ontario and
the laws of Canada applicable therein and shall be treated in all respect as
Ontario contracts.
SECTION 1.5. Debentureholders. The Debentureholders shall be deemed to have
notice of, and shall be bound by, the provisions of this Trust Indenture.
SECTION 1.6 Dollar Amounts. Unless otherwise specified in the relevant section,
all references to dollar amounts in this Trust Indenture will be deemed to be
references to the lawful money of Canada.
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ARTICLE 2
ISSUE OF DEBENTURES
SECTION 2.1 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.
SECTION 2.2 Subordinated Indebtedness.
(1) The Debentures are subordinated indebtedness as that term is defined
in the Bank Act.
(2) If and to the extent that any provision of this Trust Indenture or of
the Debentures conflicts with a mandatory requirement of the Bank Act, such
mandatory requirement shall prevail.
SECTION 2.3 Issuance in Series. The Debentures may be issued in one or more
series subject to compliance with the provisions and conditions herein set
forth. The Debentures of each series (except for the Series 19 Debentures which
shall have the attributes and be subject to the provisions set out in this Trust
Indenture) subject to the requirements of the Bank Act:
(a) shall be limited to such aggregate principal amount;
(b) shall bear such date or dates and mature on such date or dates;
(c) shall bear interest at such rate or rates;
(d) shall be in such denominations;
(e) shall be payable as to principal, interest and premium, if any, at such
place or places and in such currency or currencies;
(f) may be redeemable before maturity in such manner and subject to payment of
such premium or without premium;
(g) may provide for such sinking or purchase fund, if any;
(h) may have attached thereto or issued therewith warrants entitling the holder
to subscribe for or purchase shares or other securities of the Bank or
otherwise upon such terms;
-8-
(i) may grant the holder the right to convert the same into other debentures,
shares or other securities of the Bank or otherwise upon such terms;
(j) may contain such provisions for the interchange or transfer of Debentures
of the same series of different denominations or forms;
(k) may contain provisions allowing the holder to require the Bank to redeem or
repurchase all or any of such series of Debenture in such circumstances;
(l) may be issuable in global form with or without coupons, and, if so, the
Depositary for such global Debentures and whether beneficial owners of
interests in any such global Debenture may exchange such interests for
definitive Debentures of such series and of like tenor of any authorized
form and denomination and the circumstances under which, and the place or
places where, any such exchanges may occur, if other than in the manner
provided in Section 3.8 hereof; and
(m) may contain such other provisions, not inconsistent with the provisions of
this Trust Indenture;
as may be determined by resolution of the directors passed at or prior to the
time of the issue thereof and expressed (to such extent as the directors may
deem appropriate) in the Debentures of such series or in an indenture
supplemental hereto providing for the issuance of such Debentures.
SECTION 2.4 Form of Debentures. The Debentures of any series may be of different
denominations and may consist in whole or in part of any one or more of fully
registered Debentures, registered Debentures and unregistered Debentures and
may contain such variations of tenor and effect, not inconsistent with the
provisions of this Trust Indenture, as are incidental to such differences of
denomination and form including variations in the provisions for the interchange
of Debentures of different forms or denominations and in the provisions for the
registration or transfer of Debentures and any series of Debentures may consist
of Debentures having different dates of issue, different dates of maturity,
different rates of interest and different redemption prices and may consist in
part of sinking fund or purchase fund Debentures and in part of Debentures
carrying no sinking fund or purchase fund. The Debentures of each particular
series shall be designated and numbered in any manner prescribed by the Bank
with the approval of the Trustee.
Subject to the foregoing provisions, and subject to any limitation as to the
maximum principal amount of Debentures of any particular series, Debentures may
be issued as part of any series of Debentures previously issued, in which case
they shall bear the same designation and designating numbers as have been
applied to such similar prior issue and shall be numbered consecutively
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upwards in respect of each denomination of Debentures in like manner and
following the numbers of the Debentures of such prior issue.
All additional Debentures and the coupons, if any, appertaining thereto and the
certificate of the Trustee endorsed upon such Debentures may be in such form or
forms as the directors shall by resolution determine or authorize at the time of
the first issue of any series or part of a series of such Debentures and as
shall be approved by the Trustee, whose approval shall be conclusively
evidenced by the certification thereof.
The Debentures of any series may be engraved, lithographed or printed, or partly
in one form and partly in another as the directors shall by resolution
determine; provided however that any printed Debentures may be exchanged for
engraved or lithographed Debentures, when available, at the option of the
holders thereof and without expanse to such holders.
SECTION 2.5 Form and Terms of Series 19 Debentures.
(1) The first series of Debentures authorized to be issued hereunder (herein
sometimes referred to as "Series 19 Debentures") shall consist of and be limited
to an aggregate principal amount of $125,000,000 and shall be designated "7.40%
Debentures, Series 19 due 2011".
(2) With respect to the Series 19 Debentures, and unless there is something in
the subject matter or context inconsistent therewith:
"7:40% Debentures Series 19 Due 2011" and "Series 19 Debentures" means the
$125,000,000 aggregate principal amount of 7.40% Debentures Series 19 Due 2011
referred to in Subsection 2.5(1) hereof including Debentures issued in
substitution for any such Debentures.
"90 day Bankers' Acceptance Rate", for any quarterly interest period, shall
mean the average bid rate of interest (expressed as an annual percentage rate)
for Canadian dollar bankers' acceptances with maturities of three months which
appear on the Reuters Screen CDOR Page as of 10:00 a.m. Toronto time, on the
first Business Day of such quarterly period; provided that if such rate does
not appear on the Reuters Screen CDOR Page on such day, the 90 day Bankers'
Acceptances Rate for such period shall be the average of the bid rates of
interest (expressed as an annual percentage rate and rounded to the nearest
one-hundred thousandth of 1.00%) for Canadian dollar bankers' acceptances with
maturities of three months for same day settlement as quoted by such of the
Schedule I banks (as defined in the Bank Act) as may quote such a rate as of
10:00 a.m., Toronto time on the first Business Day of such quarterly interest
period;
"New Debentures" means the subordinated indebtedness of the Bank, which
qualifies as regulatory capital of the Bank under the then current capital
adequacy guidelines prescribed by the Superintendent for Canadian chartered
banks, to be issued to holders of Series 19 Debentures upon the exercise of the
Series 19 Conversion Option pursuant to Article 6 hereof and having the terms
and conditions contemplated by such Article.
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"Reuters Screen CDOR Page" means the display designated as page "CDOR" on
the Reuters Monitor Money Rates Service (or such other page as may replace the
CDOR page on that service) for purposes of displaying Canadian dollar bankers'
acceptance rates.
(3) The Series 19 Debentures shall be dated December 14, 1995 and shall mature
on March 14, 2011, shall be redeemable prior to maturity as provided in Article
5 and may be convertible on March 14, 2006 into an equal aggregate principal
amount of New Debentures as provided in Article 6.
(4) The Series 19 Debentures will bear interest at the rate of 7.40% per annum
from and including the date of issue to but excluding March 14, 2006 payable
monthly in arrears on the fourteenth day of each month, with overdue interest,
if any, at the same rate after as well as before default in the payment of
principal or interest. The first payment of interest will be made on January 14,
1996 and will represent interest from the date of issue.
(5) From March 14, 2006, the Series 19 Debentures will bear interest at a rate
per annum equal to the 90 day Bankers' Acceptance Rate plus 1.00% payable
quarterly in arrears on the fourteenth day of June, September, December and
March in each year (the "interest Payment Dates") commencing June 14, 2006, with
overdue interest, if any, in respect of any quarterly interest period at the
same rate applicable to such quarterly interest period after as well as before
default in payment of principal or interest. Interest for each quarterly
interest period will be calculated on the basis of the actual number of days
elapsed in each quarterly interest period divided by 365 or 366 in a leap year,
as the case may be.
(6) The principal of the Series 19 Debentures and premium if any, shall be
payable in lawful money of Canada at any branch in Canada of the Bank, at the
option of the respective holders of the Series 19 Debentures, against surrender
thereof. Interest on the Series 19 Debentures will be payable in accordance with
Section 3.9 hereof.
(7) The Series 19 Debentures shall be issuable as fully registered Debentures
only without coupons and shall be in denominations of $1,000 and integral
multiples thereof.
(8) The Series 19 Debentures shall be substantially in the form set out in
Article 15 hereof with such appropriate insertions, omissions, substitutions and
variations as may be approved or permitted under the terms of this Trust
Indenture or as the Trustee may approve; shall be in both the English and
French languages; and shall bear such distinguishing letters and numbers as the
Trustee shall approve.
SECTION 2.6 Issue of Series 19 Debentures. The Series 19 Debentures in an
aggregate principal amount of $125,000,000 shall be created, issued and executed
by the Bank and delivered to the Trustee and shall be certified by the Trustee
and delivered to or to the written order of the
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Bank, without the Trustee receiving any consideration therefor, upon receipt by
and deposit with the Trustee of the documents provided for in Subsection 2.7(3)
of this Trust Indenture.
The Trustee shall have no duty or responsibility with respect to the use or
application of any of the Series 19 Debentures so certified and delivered or of
the proceeds thereof
SECTION 2.7 Creation and Issue of Additional Debentures.
(1) The directors may from time to time authorize the creation and issuance
of one or more subsequent series of Debentures hereunder (herein sometimes
referred to as "additional Debentures").
(2) Before the issue of any Debentures of any such subsequent series the
Bank shall execute and deliver to the Trustee an indenture supplemental hereto
for the purpose of establishing the terms thereof and the forms and
denominations in which they may be issued, together with a certified resolution
authorizing the same, and the Trustee shall execute and deliver such
supplemental indenture pursuant to Article 12.
(3) Whenever any series of additional Debentures shall have been authorized
as aforesaid the same may be from time to time executed by the Bank and
delivered to the Trustee and, subject to Subsection (4), shall be certified by
the Trustee and delivered by it to or to the order of the Bank upon receipt by
and deposit with the Trustee of the following:
(a) a certified resolution authorizing the creation and issue of such
series and requesting that the Trustee certify and deliver a
specified principal amount of Debentures of such series;
(b) a certificate of the Bank that it is not in default in the
performance of any of its covenants herein contained and that it
has complied with all the requirements of the Bank Act and of
this Trust Indenture in connection with the issue of the
Debentures of which certification is requested;
(c) a written order of the Bank for the certification and delivery by
the Trustee of such Debentures; and
(d) an opinion of counsel conforming to the requirements of Section
13.3 dated the date of such certification and delivery that all
requirements imposed by this Trust Indenture or by law in
connection with the proposed issue of Debentures have been
complied with.
(4) No additional Debentures shall be certified or delivered hereunder if,
to the knowledge of the Trustee, an Event of Default shall have occurred and be
continuing.
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SECTION 2.8 Signing of Debentures. The Debentures may but need not be under the
seal of the Bank or a reproduction thereof (which shall be deemed to be the
corporate seal of the Bank) and shall be signed by the chief executive officer,
the president, any vice-chairman or any vice-president acting together with the
secretary or an assistant secretary of the Bank and the coupons shall be signed
by any one of the said officers. The signatures of such officers may be
mechanically reproduced in facsimile and Debentures and coupons bearing such
facsimile signatures shall be binding upon the Bank as if they had been
manually. signed by such officers. Notwithstanding that any of the persons whose
manual or facsimile signature appears on any Debenture or coupon as one of such
officers may no longer hold office at the date of this Trust Indenture or at the
date of such Debenture or coupon or at the date of certification and delivery
thereof, any Debenture or coupon signed as aforesaid shall be valid and binding
upon the Bank.
SECTION 2.9 Certification by Trustee.
(1) No Debenture shall be issued or, if issued, shall be obligatory or
entitle the holder to the benefit hereof until it has been certified by or on
behalf of the Trustee substantially in the form of the certificate set out in
an instrument supplemental to this Trust indenture in respect of a series of
additional Debentures and, in the case of the Series 19 Debentures, the
certificate set out in Article 15 or in some other form approved by the Trustee
and such certification by the Trustee upon any Debenture shall be conclusive
evidence as against the Bank that the Debenture so certified has been duly
issued hereunder and is a valid obligation of the Bank and that the holder is
entitled to the benefit hereof.
(2) The certificate of the Trustee on Debentures issued hereunder shall not
be construed as a representation or warranty by the Trustee as to the validity
of this Trust Indenture or of the Debentures (except the due certification
thereof) and the Trustee shall in no respect be liable or answerable for the use
made of the Debentures or any of them or of the proceeds thereof.
SECTION 2.10 Interim Debentures. Pending the delivery of definitive Debentures
of any series or part of a series to the Trustee, the Bank may issue in lieu
thereof Debentures, with or without coupons, in such forms and in such
denominations and sighed in such manner as the Trustee and the Bank may approve
(such approval to be conclusively evidenced by the certification of such
Debentures by or on behalf of the Trustee and the signature thereof on behalf of
the Bank), entitling the holders thereof to definitive Debentures of the said
series or part of a series when the same are ready for delivery or the Bank may
execute and the Trustee certify an interim Debenture for the whole principal
amount of Debentures then authorized to be issued and deliver the same to the
Trustee and thereupon the Trustee may issue interim certificates in such form
and in such amounts, not exceeding in the aggregate the principal amount of the
interim Debenture so delivered to it, as the Bank and the Trustee may approve,
entitling the holders thereof to definitive Debentures when the same are ready
for delivery. When so issued and certified, such
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interim Debentures shall, for all purposes, be deemed to be Debentures and,
pending the exchange thereof for definitive Debentures, the holders of the said
interim or temporary Debentures shall be deemed to be Debentureholders and
entitled to the benefit of this Trust Indenture to the same extent and in the
same manner as though the said exchange had actually been made. Forthwith after
the Bank shall have executed and delivered the definitive Debentures to the
Trustee, the Trustee shall call in for exchange all interim Debentures that
shall have been issued and forthwith after such exchange shall cancel the same
together with all unmatured coupons, if any, pertaining thereto. No charge shall
be made by the Bank or the Trustee to the holders of such interim Debentures for
such exchange thereof. All interest paid upon interim Debentures without coupons
shall be noted thereon as a condition precedent to such payment unless paid by
cheque to the registered holders thereof.
SECTION 2.11 Cancellation of Matured Coupons. The coupons for interest, if any,
matured at the date of delivery by the Trustee of any coupon Debenture issued
hereunder shall (subject to the provisions of Section 2.12) be detached
therefrom and cancelled before delivery, unless such coupon Debenture is being
issued in exchange for or in replacement of another Debenture and such matured
coupons represent unpaid interest to which the holder of such exchanged or
replaced Debenture is entitled.
SECTION 2.12 Issue in Substitution for Lost Debentures.
(1) In case any of the Debentures issued and certified hereunder or coupons
pertaining thereto shall become mutilated, defaced or be lost, destroyed or
stolen, the Bank shall issue and thereupon the Trustee shall certify and deliver
a new Debenture or coupon of like date and tenor as the one mutilated, lost,
destroyed or stolen in exchange for and in place of and upon cancellation of
such mutilated Debenture or coupon or in lieu of and in substitution for such
lost, destroyed or stolen Debenture or coupon and the new Debenture or coupon
shall be in a form approved by the Trustee and shall be entitled to the benefit
hereof and rank Equally in accordance with its terms with all other Debentures
or coupons issued or to be issued hereunder.
(2) The applicant for the issue of a new Debenture or coupon pursuant to
this Section 2.12 shall bear the cost of the issue thereof and in case of loss,
destruction or theft shall, as a condition precedent to the issue thereof,
furnish to the Bank and to the Trustee such evidence of ownership and of the
loss, destruction or theft of the Debenture or coupon so lost, destroyed or
stolen as shall be satisfactory to the Bank and the Trustee in their discretion
and such applicant may also be required to furnish indemnity in amount and form
satisfactory to the Bank and the Trustee in their discretion, and shall pay the
reasonable charges of the Bank and the Trustee in connection therewith.
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ARTICLE 3
REGISTRATION, TRANSFER, EXCHANGE AND
OWNERSHIP OF DEBENTURES
SECTION 3.1 Registration and Transfer of Debentures.
(1) The Bank shall cause to be kept registers hereinafter referred to in
which shall be entered in alphabetical order the names and the last known
addresses (including the street and number if any) of the holders of fully
registered Debentures and particulars of the series and principal amount of the
Debentures held by them respectively, such registration to be noted on the
Debentures by the Trustee or other registrar or both. A fully registered
Debenture may only be transferred on one of such registers by the registered
holder or the Legal Representative of the registered holder in form satisfactory
to the Trustee or other registrar or both and upon compliance with such
reasonable requirements as the Trustee or other registrar or both may prescribe,
and upon due notation of such transfer on such Debenture by the Trustee or other
registrar or both.
(2) Coupon Debentures shall be negotiable and shall pass by delivery unless
registered for the time being in the name of the holder as hereinafter provided.
The Bank shall cause to be kept registers hereinafter referred to in which the
holder or holders of coupon Debentures may register the same as to principal
only, and in which shall be entered in alphabetical order the names and last
known addresses (including the street and number if any) of the holders of
coupon Debentures so registered and particulars of the series and principal
amount of the Debentures held by them respectively, such registration to be
noted on each Debenture so registered. After registration of a coupon Debenture
as to principal, no transfer thereof shall be valid unless made on one of such
registers by the registered holder or the Legal Representative of the
registered holder in form satisfactory to the Trustee or other registrar and
upon compliance with such reasonable requirements as the Trustee or other
registrar may prescribe, and unless such transfer shall be duly noted on the
Debenture by the Trustee or other registrar; but any such coupon Debenture
registered as to principal only may be discharged from registration by being
transferred to bearer after which it shall again be negotiable and transferable
by delivery, but may again from time to time be registered and discharged from
registration.
Notwithstanding registration of a coupon Debenture as to principal,
the coupons, when detached, shall continue to be payable to bearer and shall be
negotiable and shall pass by delivery.
(3) The Bank shall also cause to be kept the registers hereinafter referred
to in which all transfers of fully registered Debentures and Debentures
registered as to principal only and the date and other particulars of each
transfer shall be set out.
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(4) The registers referred to in this Section shall be kept as follows:
(i) with respect to the Series 19 Debentures, the registers shall be
kept by and at the principal office of the Trustee in the City of
Toronto and branch registers shall be kept by and at the
principal offices of the Trustee in the Cities of Halifax,
Montreal, Winnipeg, ▇▇▇▇▇▇, Calgary and Vancouver (unless the
Bank advises the Trustee that any of such branch registers shall
no longer be kept) and at such other place or places, if any, and
by the Trustee or by such other registrar or registrars, if any,
as the Bank, with the approval of the Trustee, may designate; and
(ii) with respect to any other series of Debentures, the registers
shall be kept at such place or places and by the Trustee or by
such other registrar or registrars, if any, as the Bank, with the
approval of the Trustee, may designate;
provided however, that in the event that the Bank determines that any
branch register shall no longer be kept, the Trustee shall provide
notice in writing to those holders of Debentures who are shown on such
branch register of the location of the register on which their
registration of Debentures shall be shown.
(5) In each branch register of transfers, there shall be recorded only the
particulars of transfers of Debentures registered in that branch register of
transfers, and particulars of every transfer of Debentures registered in every
branch register of transfers shall be recorded in the register of transfers.
The registered holder of a registered Debenture, whether fully
registered or registered as to principal only, may at any time or from time to
time transfer such Debenture at any of the places at which a register of
transfers is kept for such Debentures pursuant to the provisions of this
Section subject to compliance with the provisions hereof and such other
reasonable regulations as the Trustee or other registrar may prescribe with
respect to transfers of such Debentures.
The registered holder of a registered Debenture, whether fully
registered or registered as to principal only, may at any time or from time to
time have the registration of such Debenture transferred to the register kept at
any of the places at which a register is kept for such Debentures pursuant to
the provisions of this Section, in accordance with such reasonable regulations
as the Trustee or other registrar may prescribe.
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SECTION 3.2 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 interest rate and of the
same aggregate principal amount as the Debentures so exchanged, subject to
payment by the holder of any applicable taxes or governmental charges and
expenses incurred by the Bank and/or the Trustee.
(2) Debentures of any series may be exchanged only at the office of the
Trustee or at the offices of any other registrar where registers are kept
pursuant to Section 3.1 upon compliance with the reasonable requirements of the
Trustee or other registrar. All Debentures and coupons tendered for exchange
shall be surrendered to the Trustee and shall be cancelled. All coupon
Debentures tendered for exchange or issued upon exchange shall have attached
thereto all coupons representing unmatured interest and interest that may have
matured and may, by reason of default on the part of the Bank, remain unpaid.
The Bank shall execute and the Trustee shall certify all Debentures necessary to
carry out exchanges as aforesaid.
SECTION 3.3 Charges for Registration, Transfer and Exchange.
(1) Unless otherwise provided in any supplemental indenture, for each
Debenture exchanged, registered, transferred or discharged from registration the
Trustee or other registrar may make a sufficient charge to reimburse it and the
Bank for transfer taxes or governmental or other charges required to be paid and
a reasonable charge for its services and, in addition, a reasonable charge for
each new Debenture issued, if any.
(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 3.4 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 any series on any
interest payment date for Debentures of that series or during the 15 preceding
Business 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 15 preceding Business Days. Debentures issued in exchange for
Debentures which at the time of such issue have been selected or called for
redemption or partial redemption at a later date shall be deemed to have been
selected or called for redemption or partial redemption in the same manner and
shall have noted thereon a statement to that effect.
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SECTION 3.5 Register Open for Inspection. The registers referred to in this
Trust Indenture shall at all reasonable times be open for inspection by the
Bank, the Trustee, other registrar or registrars, if any, or any Debentureholder
or their respective agents or Legal Representatives and any of the foregoing may
take extracts therefrom in accordance with such reasonable regulations the
Trustee may require. The Trustee shall from time to time when requested to do so
furnish the Bank with a list of the names and addresses of holders of registered
Debentures entered on the registers kept by it showing the principal amount and
serial numbers of the Debentures held by each such holder.
SECTION 3.6 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 registrar 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, or to see to the
performance or observance of any duty owed to a third party, 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) Where registered Debentures are registered in more than one name, the
principal moneys, premium, if any, and interest in the case of fully
registered Debentures from time to time payable in respect thereof may be paid
by cheque payable to the order of all such holders, failing written instructions
from all of them to the contrary, and the receipt of any one of such holders
therefor shall be a valid discharge to the Trustee and any registrar and to the
Bank.
(5) In the case of the death of one or more joint registered holders, the
principal moneys, premium, if any, and interest on fully registered Debentures
and the principal moneys, and premium, if any, on coupon Debentures registered
as to principal only, may be paid to the survivor or survivors of such
registered holders and the receipt of any one of such survivors therefor shall
constitute a valid discharge to the Trustee and any registrar and to the Bank.
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(6) 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 3.7 Global Debenture. If additional Debentures are issuable in global
form, then, such Debenture shall represent such of the outstanding Debentures of
such series as shall be specified therein and may provide that it shall
represent the aggregate amount of outstanding Debentures from time to time
endorsed thereon and that the aggregate amount of outstanding Debentures
represented thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a Debenture in global form to reflect the amount, or any increase
or decrease in the amount, of outstanding Debentures represented thereby shall
be made by the Trustee in such manner and upon instructions given by such person
or persons as shall be specified in such Debenture or by the Bank. Subject to
the provisions of Section 2.9 and, if applicable, Section 2.10, the Trustee
shall deliver and redeliver any Debenture in global form in the manner and upon
written instructions given by the person or persons specified in such Debenture
or by the Bank. Any instructions by the Bank with respect to endorsement or
delivery or redelivery of a Debenture in global form shall be in writing.
Payment of principal of and any interest in any Debenture in global form
shall be made to the person or persons specified therein.
The owner of beneficial interests in any global Debenture shall not be
considered a holder and shall have no rights as such under this Trust Indenture
with respect to any global Debenture held on such owner's behalf by a Depositary
designated as such by the Bank, and such Depositary may be treated by the Bank,
the Trustee, and any agent of the Bank or the Trustee as the sole holder and
owner of such global Debenture for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Bank, the Trustee or any agent of
the Bank or the Trustee from giving effect to any written certificate, proxy or
other authorization furnished by a Depositary, or impair, as between a
Depositary and its participants in any global Debenture, the operation of
customary practices governing the exercise of the rights of a holder of a
Debenture of any series, including, without limitation, the granting of proxies
or other authorization of participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action that a holder
is entitled to give or to take under this Trust Indenture.
Neither the Bank, the Trustee nor any agent will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a global Debenture or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
In respect of any Depositary in the United States of America designated
pursuant to section 2.7 for a global Debenture, such Depositary must, at the
time of its designation, and at all times
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while it serves as Depositary, be a clearing agency registered under the
Securities ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, as amended, and any other applicable statute or
regulation.
SECTION 3.8 Limitation on Transfer and Exchange of Global Debenture.
Notwithstanding any other provision of this Trust Indenture, unless and until it
is exchanged in whole or in part for Debentures in definitive form, a global
Debenture representing all or a portion of the Debentures of a series may not
be transferred, except as a whole by the Depositary for such series to a nominee
of such Depositary or by a nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
Notwithstanding. the foregoing, any global Debenture shall be exchangeable
pursuant to this Section.3.8 only as provided in this paragraph. If at any time
the Depositary for the Debentures of a series notifies the Bank that it is
unwilling or unable to continue as Depositary for the Debentures of such series,
or if at any time the Depositary for the Debentures of such series shall no
longer be eligible to so act, the Bank shall appoint a successor Depositary with
respect to the Debentures of such series. If (a) a successor Depositary for the
Debentures of such series is not appointed by the Bank within 90 days after the
Bank receives such notice or becomes aware of such ineligibility (thereby
automatically making the Bank's election pursuant to Section 2.7 no longer
effective with respect to the Debentures of such series), (b) the beneficial
owners of interests in a global Debenture are entitled to exchange such
interests for Debentures of such series and of like tenor and principal amount
of another authorized form and denomination, as specified pursuant to Section
2.7, or (c) the Bank in its sole discretion determines that the Debentures of
any series issued in the form of one or more global Debentures shall no longer
be represented by such global Debenture or Debentures, then without unnecessary
delay, but, if appropriate, in any event not latter than the earliest date on
which such interests may be so exchanged, the Bank shall deliver to the
Trustee definitive Debentures, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of such global
Debenture, executed by the Bank. On or after the earliest date on which such
interests are or may be so exchanged, such global Debenture shall be surrendered
by the Depositary to the Trustee, as the Bank's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Debentures
upon payment by the beneficial owner of such interest, at the option of the
Bank, of a charge for of such exchange and of a proportionate share of the cost
of printing such definitive Debentures, and the Trustee shall certify and
deliver, (a) to each person specified by the Depositary in exchange for each
portion of such global Debenture, an equal aggregate principal amount of
definitive Debentures of the same series of authorized denominations and of
like tenor as the portion of such global Debenture to be exchanged, and (b) to
such Depositary a global Debenture in a denomination equal to the difference, if
any, between the principal amount of the surrendered global Debenture and the
aggregate principal amount of definitive Debentures delivered to holders
thereof; provided however, that no such exchanges may occur during a period
beginning at the opening of 15 Business Days before any selection of Debentures
of that series to be redeemed and ending on the relevant redemption date. If a
Debenture is issued in exchange
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for any portion of a global Debenture after the close of business at the office
or agency where such exchange occurs on (i) any regular record date and before
the opening of business at such office or agency on the relevant interest
payment date, or (ii) any record date for the payment of defaulted interest and
before the opening of business at such office or agency on the related proposed
date for payment of defaulted interest, interest or defaulted interest, as the
case may be, will not be payable on such interest payment date or proposed date
for payment of defaulted interest, as the case may be, in respect of such
Debenture, but will be payable on such interest payment date or proposed date
for payment of a defaulted interest, as the case may be, only to the person to
whom interest in respect of such portion of such permanent global Debenture is
payable in accordance with the provisions of this Trust Indenture.
SECTION 3.9 Interest on Fully Registered Debentures. All fully registered
Debentures issued hereunder whether on original issue or upon exchange, shall
bear interest from their date or from the last interest payment date on which
interest shall have been paid or made available for payment on the outstanding
Debentures, whichever shall be later.
At least three Business Days prior to each date on which interest becomes
due on each fully registered Debenture (except interest payable at maturity or
on redemption, at which times interest may instead be paid upon surrender of
such Debenture) the Bank shall send or cause to be sent by prepaid ordinary mail
a cheque for such interest (less any tax required to be deducted or withheld)
payable to the registered holder of such Debenture and addressed to the holder
at the holder's last address appearing on the register unless otherwise directed
in writing by the holder or in the case of joint registered holders, payable to
all of them and addressed to that one of such joint holders whose name stands
first on the register at the last address for such joint holder appearing on the
register unless otherwise directed in writing by all of them. The forwarding of
such cheque shall satisfy and discharge the liability for interest on such
Debenture to the extent of the sum represented thereby (plus the amount of any
tax deducted or withheld as aforesaid) unless such cheque is not paid on
presentation at any of the places where such interest is by the terms of such
Debenture made payable.
Notwithstanding the foregoing, in the event of the non-receipt of any such
cheque by the registered holder of such Debenture, or the loss, theft or
destruction thereof, the Bank (or the Trustee, if applicable) upon being
furnished with reasonable evidence of such non-receipt, loss, theft or
destruction and indemnity reasonably satisfactory to it shall issue to such
registered holder a replacement cheque for the amount of such cheque.
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ARTICLE 4
RANKING AND SUBORDINATION OF DEBENTURES
SECTION 4.1 Debentures Subordinated to Deposit Liabilities and Other
Indebtedness. The Debentures are direct unsecured obligations of the Bank. The
Bank covenants and agrees and each holder of Debentures, by the holder's
acceptance thereof, also covenants and agrees and shall be deemed conclusively
to have covenanted and agreed for the benefit of the present and future holders
of Indebtedness, anything herein contained to the contrary notwithstanding,
that, in the event of the insolvency or winding-up of the Bank, the Debentures
rank equally with and not prior to the debentures or other subordinated
indebtedness issued under this Trust Indenture or the Existing Trust Indentures
and are subordinate in right of payment to the prior payment in full of the
deposit liabilities of the Bank and all other Indebtedness of the Bank, other
than liabilities which, by their terms, rank in right of payment equally with
or subordinate to the Debentures, whether now outstanding or hereafter incurred,
and in accordance with the terms of such deposit liabilities and such other
Indebtedness. Each holder of any Debenture by the holder's acceptance thereof
agrees to and shall be bound by the provisions of this Article 4.
SECTION 4.2 Further Assurances of Subordination Each holder of Debentures, by
the holder's acceptance thereof, authorizes and directs the Trustee on the
holder's behalf to take such further action as may be necessary or appropriate
to assure the subordination as provided in this Article 4 and appoints the
Trustee the holder's agent for any and all such purposes.
ARTICLE 5
REDEMPTION AND PURCHASE OF DEBENTURES
SECTION 5.1 General.
(1) Subject to the requirements of the Bank Act, the Bank, when not in
default hereunder, 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 or part of a 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, if any, as shall have been determined at the time of the issue
of such Debentures and as shall be expressed in this Trust Indenture, in the
Debentures, in the resolution of the directors or the supplemental indenture
authorizing or providing for the issue thereof.
(2) In case less than all of the outstanding Debentures of any series of
Debentures are to be redeemed, the Debentures of such series to be redeemed
shall be redeemed on a pro rata
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(2) In case less than all of the outstanding Debentures of any series of
Debentures are to be redeemed, the Debentures of such series to be redeemed
shall be redeemed on a pro rata basis in such manner as the Trustee shall deem
equitable, subject to Subsection 5.1(3). The Trustee may make and from time to
time may amend regulations with regard to the manner in which the Debentures of
any series may be redeemed and regulations so made shall be valid and binding
upon all holders of Debentures of such series.
(3) For the purposes of redemption, each Debenture shall be deemed to
consist of the appropriate number of units of $1,000 each, and any number of
such units making up the principal amount of any Debenture comprising one or
more such units may be selected and called for redemption in accordance with
Subsection 5.1(2). In such event, the holder of any Debenture to be redeemed in
whole or in part shall, upon presentation of the Debenture and upon receiving
the moneys payable to the holder by reason of such redemption, surrender said
Debenture for cancellation and the Trustee shall without charge forthwith
certify and deliver to the said holder a Debenture or Debentures of an aggregate
principal amount equal to the unredeemed part of the principal amount of the
Debenture so surrendered.
SECTION 5.2 Restriction on Redemption of Series 19 Debentures.
(1) The Bank shall not redeem Series 19 Debentures in whole or in part for
any purpose at any time prior to March 14, 2006.
(2) Subject to the provisions of the Bank Act, including the prior approval
of the Superintendent, the Bank may, at its option, redeem all but not less than
all of the Series 19 Debentures on March 14, 2006 or on any 1aterest Payment
Date thereafter at 100% of the principal amount thereof plus accrued and unpaid
interest to the date fixed for redemption, the whole constituting the redemption
price.
SECTION 5.3 Places of Payment. The redemption price shall be payable upon
presentation and surrender of the Series 19 Debentures to be redeemed at any of
the places where the principal of such Debentures is expressed to be payable and
at such other places, if any, as may be specified in the notice of redemption.
SECTION 5.4 Notice of Redemption. Notice of redemption of any Debentures shall
be given by the Bank to the Trustee and to the holders of the Debentures not
less than 30 days nor more than 60 days prior to the date fixed for redemption,
in the manner provided in Article 14. Every such notice shall specify the
series and maturity date of the Debentures called for redemption, the redemption
date, the redemption price, the places of payment and, unless all the
outstanding Debentures are to be redeemed, designating numbers and principal
amount of the
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Debentures which are to be redeemed, and, in case any Debenture is to be
redeemed in part only, the principal amount of such part, and shall state that
interest upon the principal amount of Debentures so called for redemption shall
cease to be payable from and after the redemption date.
SECTION 5.5 Payment of Redemption Price.
(1) Upon notice being given as aforesaid, Debentures so called for
redemption shall thereupon 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 the date of maturity specified in such Debentures, anything
therein or herein to the contrary notwithstanding, and, from and after such
redemption date, if the moneys necessary to redeem such Debentures shall have
been deposited as hereinafter provided and affidavits or other proof
satisfactory to the Trustee as to the publication or mailing of such notice
shall have been lodged with it, interest upon the said Debentures shall cease
and coupons for interest to accrue after said date upon said Debentures shall
become and be void, subject to the provisions of Section 5.1 hereof.
In case any question shall arise as to whether any notice has been
given as above provided and such deposits made, such questions shall be decided
by the Trustee whose decision shall be final.
(2) Such redemption shall be provided for by the Bank depositing with the
Trustee or to the order of the Trustee in trust for the holders of Debentures
called for redemption prior to the redemption date specified in such notice,
such sum as may be sufficient to pay the redemption price of such Debentures,
including accrued interest on the Debentures so called for redemption to the
date fixed for redemption. The Bank shall also deposit with the Trustee, if
required by it, a sum sufficient to pay any charges or expenses which may be
incurred by the Trustee in connection with such redemption. From the sums so
deposited, the Trustee shall pay or cause to be paid to the holders of
Debentures so called for redemption, upon surrender of such Debentures with the
coupons, if any, appertaining thereto maturing on and after such redemption
date, the redemption price to which they are respectively entitled, subject to
the provisions of Section 9.2 hereof. In the case of coupon Debentures, the
accrued interest represented by coupons matured prior to the date fixed for
redemption shall continue to be payable (but without interest thereon unless the
Bank shall make default in the payment thereof) to the bearers of such coupons
upon presentation and surrender thereof.
(3) If the principal moneys due upon any Debenture shall become payable by
redemption or otherwise before the date of maturity thereof, the person
presenting such Debenture far payment shall surrender the Debenture for
cancellation together with all unmatured coupons, if any, appertaining thereto.
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SECTION 5.6 Purchase of Series 19 Debentures. The Bank, with the prior approval
of the Superintendent, shall have the right, at any time after the fifth
anniversary of the date of issue of the Series 19 Debentures, to purchase Series
19 Debentures in the market, by tender or by private contract at any price.
Notwithstanding the foregoing, any subsidiary of the Bank may purchase Series 19
Debentures in the ordinary course of its business of dealing in securities.
SECTION 5.7 Cancellation of Debentures. All Debentures redeemed in whole or in
part or purchased for cancellation by the Bank under the provisions of this
Article with the coupons, if any, appertaining thereto, shall be forthwith
delivered to and cancelled by the Trustee and no Debentures shall be issued in
substitution therefor subject to the provisions of Subsection 5.1(2) hereof.
ARTICLE 6
CONVERSION OF SERIES 19 DEBENTURES INTO NEW DEBENTURES
SECTION 6.1 Conversion Option. On March 14, 2006 (the "Series 19 Conversion
Date") the registered holder of a Series 19 Debenture may, but only upon notice
from the Bank, which may be given only with the prior approval of the
Superintendent, convert (the "Series 19 Conversion Option") all but not less
than all of the Series 19 Debentures held by such holder into an equal aggregate
principal amount of New Debentures without the payment of any further
consideration therefor. If given, such notice from the Bank shall be given to
the registered holders of the Series 19 Debentures and to the Trustee, in the
manner provided in Article 14 of the Trust Indenture, not less than 30 days nor
more than 60 days prior to the Series 19 Conversion Date and the holders shall
thereupon have the option to effect such conversion on the terms and conditions
set forth in this Article. The notice shall contain a description of the
attributes and characteristics of the New Debentures, a summary of the resale
restrictions, if any, in respect of the New Debentures under Canadian provincial
securities legislation, a summary of the principal Canadian federal income tax
considerations generally applicable to a holder of a Series 19 Debenture who is
a resident of Canada and who holds such Series 19 Debenture as capital property
upon exercising the Series 19 Conversion Option, shall describe the steps
required to be taken by the holder of a Series 19 Debenture in order to exercise
the Series 19 Conversion Option and the status of the New Debentures as
subordinated indebtedness of the Bank for purposes of the Bank Act. Any notice
so given by the Bank shall be irrevocable, shall apply to all outstanding Series
19 Debentures, and shall remain in effect to and including the Conversion Date.
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SECTION 6.2 Supplemental Indenture for New Debentures. In the event that the
Bank gives the notice referred to in Section 6.1, it shall authorize the
creation and issuance of New Debentures, constitute the terms and provisions
thereof and, as of the Series 19 Conversion Date, execute and deliver to the
Trustee a new indenture supplemental to the Trust indenture (the "Supplemental
Indenture") relating to the New Debentures to be issued to the holders of the
Series 19 Debentures on conversion. From and after the Series 19 Conversion
Date, the Supplemental Indenture shall apply to the New Debentures issued to
holders of Series 19 Debentures converted pursuant to this Article and shall be
binding upon and enure to the benefit of the holders of such New Debentures.
SECTION 6.3 Exercise of the Conversion Option. The Series 19 Conversion Option
may be exercised by the holder of a Series 19 Debenture or the Legal
Representative of the holder, by executing the form on the reverse side of the
Series 19 Debenture certificate and delivering the same for surrender to the
Trustee at the office or offices of the Trustee specified in the notice referred
to in Section 6.1 on or before the Series 19 Conversion Date. Any such, exercise
shall be irrevocable. A holder of Series 19 Debentures may only exercise the
Series 19 Conversion Option with respect to all of the Series 19 Debentures then
registered in the name of the such holder. No such exercise shall be effective
unless received by the Trustee in accordance with the provisions hereof at or
before 4:00 p.m. (Toronto time) on the Series 19 Conversion Date.
SECTION 6.4 Issues of New Debenture. The Trustee, upon receipt of a Series 19
Debenture certificate with the form for the exercise of the Conversion Option on
the reverse side thereof duly executed by the registered holder thereof or the
Legal Representative of the holder, shall forthwith certify and deliver to such
registered holder New Debentures dated as of the Series 19 Conversion Date in
the same aggregate principal amount as the Series 19 Debentures delivered for
conversion in accordance with Section 6.3. The New Debentures shall, be issued
in accordance with the instructions of the holders of the Series 19 Debentures
to be converted.
SECTION 6.5 Trustee's Decision Final. If any question shall arise as to the
validity of the exercise of the Series 19 Conversion Option by holders of Series
19 Debentures pursuant to this Article 6, the Trustee may require such evidence
as it deems necessary in relation thereto, and the decision of the Trustee
shall be final and binding.
SECTION 6.6 Cancellation of Series 19 Debentures. All Series 19 Debentures
surrendered to the Trustee for conversion pursuant to this Article 6 shall be
cancelled and shall not be reissued.
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SECTION 6.7 Delivery of Legal Opinion and Certificate of the Bank.
(1) If the notice referred to in Section 6.1 is delivered by the Bank, the
Bank shall deliver to the Trustee on the Series 19 Conversion Date:
(a) a favourable legal opinion of counsel retained by the Bank and
acceptable to the Trustee, in form acceptable to the Trustee, acting
reasonably, dated the Series 19 Conversion Date and addressed to the
Trustee and to the holders of Series 19 Debentures surrendered for
conversion, as to the following matters:
(i) that the exercise of the Series 19 Conversion Option and the
issuance of the New Debentures to the holders of Series 19
Debentures do not and will not result in a breach of any of the
provisions of the Bank Act or the by-laws of the Bank;
(ii) that the Supplemental Indenture is in proper form, has been duly
authorized by all necessary corporate action on the part of the
Bank, has been duly executed and delivered by the Bank and is a
legal, valid and binding obligation of the Bank enforceable
against the Bank in accordance with its terms, subject to the
qualification that such enforceability may be limited by
bankruptcy, insolvency, winding-up, liquidation or other similar
laws affecting the enforcement of creditors' rights generally and
that specific performance and other equitable remedies may only
be granted in the discretion of a court of competent
jurisdiction;
(iii) that the certificates representing the New Debentures are in
proper form, that the New Debentures have been duly authorized,
executed and delivered by the Bank and certified by the Trustee,
constitute subordinated indebtedness of the Bank for purposes of
the Bank Act which, in the event of the insolvency or winding-up
of the Bank, will rank equally and rateably with all other
debentures of the Bank from time to time outstanding, have been
duly issued and delivered under the Trust Indenture, as amended
and as supplemented by the Supplemental Indenture and are
entitled to the benefits thereof, and are legal, valid and
binding obligations of the Bank enforceable against the Bank in
accordance with their respective terms subject to the
qualification that such enforceability may be limited by
bankruptcy, insolvency, winding-up, liquidation or other similar
laws affecting the enforcement of creditors' rights generally and
that specific performance and other equitable remedies may only
be granted in the discretion of a court of competent
jurisdiction;
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(iv) that any authorization, consent or approval or filing,
registration, qualification or recording with, any government
authority of each of the Provinces and Territories of Canada
legally required for the issuance of the New Debentures to the
holders of Series 19 Debentures has been obtained or made;
(v) confirming the description of the resale restrictions, if any,
and tax consequences set out in the notice referred to in Section
6.1;
(vi) as to the eligibility of the New Debentures for investment under
statutes of Canada, and of the Provinces of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ and British Columbia governing investments by insurance,
loan or trust companies and by pension plans in accordance with
any financial performance tests thereunder without resort to any
so-called "basket" provisions thereunder, and, in the case of any
such statutes which refer to prudent investment standards, that
investment in the New Debentures would not be prohibited under
such statutes, subject to such prudent investment standards and
the general investment provisions of such statutes and, in
certain cases, criteria which are required to be established as
policies or guidelines pursuant to such statutes; and
(vii) as to such other matters as the Trustee may reasonably request;
and
(b) a certificate of the Bank stating that the exercise of the Series 19
Conversion Option and the issuance of the New Debentures to the
holders of Series 19 Debentures do not and will not result in any
violation of or constitute a default under any indenture or other
agreement or instrument to which the Bank is then a party or by which
the Bank is then bound.
(2) The obligation of the Bank to deliver the opinion and certificate
described in Subsection 6.7(1) is solely for the benefit of the holders of
Series 19 Debentures being surrendered for conversion and may be waived or
modified by an instrument in writing signed by the Trustee (where the Trustee is
of the opinion that such waiver or modification is not materially prejudicial to
the interest of Series 19 Debentureholders) or by resolution of the holders of a
majority in principal amount of the Series 19 Debentures surrendered for
conversion on or after the date of the notice referred to in Section 6.1.
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ARTICLE 7
COVENANTS OF THE BANK
SECTION 7.1 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 in the payment by the Bank of any
such principal, premium or accrued interest, 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,
pertaining thereto.
(2) Except as herein otherwise expressly provided, it will at all times
maintain its corporate existence and will itself or through subsidiaries carry
on and conduct its business in a proper, efficient and businesslike manner and
in accordance with good banking practice.
(3) It will keep and cause its subsidiaries to keep proper books of account
in accordance with the accounting rules established for Canadian chartered banks
issued under the authority of the Superintendent pursuant to the Bank Act or
with generally accepted accounting principles 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 reports of the Bank furnished to its shareholders after the
date hereof.
SECTION 7.2 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 any 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. 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 7.3 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
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extend or assent to the extension of time for payment of any coupons or interest
or of any principal payable in respect of the Debentures payable hereunder or be
or become a party to or approve any such arrangement by purchasing or funding
any payment of said coupons or interest or principal in respect of any
Debentures or in any other manner; and that the Bank shall and will deliver to
the Trustee all Debentures when paid as evidence of such payment. In case the
time for payment of any such coupons or interest or principal shall be so
extended, whether or not such extension be by or with the consent of the Bank,
such coupons or interest or principal shall not be entitled in case of default
hereunder to the benefit of this Trust indenture 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 7.4 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 provided that nothing contained in this Section 7.4 shall
prevent or restrict the Bank from creating, issuing or incurring Indebtedness of
equal or subordinate ranking to the Debentures.
SECTION 7.5 Annual Certificate of Compliance. Within 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 the Bank stating that
in the course of the performance by the signers of their duties as officers of
the Bank they 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 under Article 8 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 hereunder, or, if such is not the
case, setting forth with reasonable particulars the circumstances of any failure
to comply.
SECTION 7.6 Trustee may Perform Covenants. If the Bank shall fail to perform any
covenant on its part herein contained, the Trustee may in its discretion, but
(subject to Section 8.3) need not, notify the Debentureholders of such failure
or itself may but need not perform any of said covenants capable of being
performed by it and, if any such covenant requires the payment or expenditure of
money, it may make such payment or expenditure with its own funds, or with money
borrowed by or advanced to it for such purpose, but shall be under no obligation
so to do and all sums so expended or advanced shall be repayable by the Bank in
the manner provided in Section 7.2, but no such performance, expenditure or
disbursement by the Trustee shall be deemed to relieve the Bank of any default
hereunder of its continuing obligations and the covenants contained herein.
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SECTION 7.7 Notification of Subordinated Indebtedness Default. On becoming aware
at any time of any event of default pursuant to the provisions of any Existing
Trust Indenture, or as defined in any one or more indentures or instruments
under which the Bank has issued subordinated indebtedness, the Bank will
promptly notify the Trustee.
ARTICLE 8
DEFAULTS AND ENFORCEMENT
SECTION 8.1 Events of Default. An "Event of Default" in respect of the
Debentures will occur if the Bank shall become insolvent or bankrupt or subject
to the provisions of the Winding-up Act (Canada), or any Act that may be
substituted therefor, as from time to time amended, or if the Bank goes into
liquidation, either voluntary or under an order of a court of competent
jurisdiction, passes a resolution for the winding-up, liquidation or dissolution
of the Bank or otherwise acknowledges its insolvency (provided that a resolution
or order for the winding-up of the Bank with a view to its consolidation,
amalgamation or merger with another bank or the transfer of its assets as an
entirety to such other bank, as provided in Article 10, shall not constitute an
Event of Default if such successor bank shall, as a part of such consolidation,
amalgamation, merger or transfer, and prior to or contemporaneously with the
consummation of the transaction, comply with the conditions provided for such
purpose in Article 10).
SECTION 8.2 Notice of Events of Default.
(1) If an Event of Default shall occur and be continuing the Trustee shall,
within a reasonable time, but not exceeding 30 days, after it becomes aware of
the occurrence of such Event of Default, give notice of such Event of Default to
the Debentureholders, provided that, notwithstanding the foregoing, unless the
Trustee shall have been requested to do so by the holders of at least 25 % of
the principal amount then outstanding, the Trustee shall not be required to give
such notice if the Trustee believes on reasonable grounds that the withholding
of such notice is in the best interests of the Debentureholders and gives notice
of such determination to the Bank in writing.
(2) When notice of the occurrence of an Event of Default has been given
under Subsection 8.2(1) and the Event of Default is thereafter cured, notice
that the Event of Default is no longer continuing shall be given by the Trustee
to the Debentureholders in the manner provided
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in Section 14.1 within a reasonable time, but not exceeding 30 days, after the
Trustee becomes aware that the Event of Default has been cured.
SECTION 8.3 Acceleration on Default. In case an Event of Default has occurred
and is continuing, the Trustee may in its discretion and shall upon receipt of a
Debentureholders' Request, subject to the provisions of Section 8.5, by notice
in writing to the Bank, 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,
anything therein or herein to the contrary notwithstanding, and the Bank shall
forthwith pay to the Trustee for the benefit of the Debentureholders the
principal of and accrued and unpaid interest (including interest on amounts in
default) on the Debentures, the 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.
SECTION 8.4 Bank Act Early Payment Restrictions. If any provisions (herein
referred to as "Early Payment Restrictions") contained in the Bank Act or in any
rules, regulations, orders or guidelines passed pursuant thereto or guidelines
issued by the Superintendent in relation thereto shall limit the right of the
Bank to pay the principal of the Debentures on or before a date prescribed by
such Early Payment Restrictions, Sections 8.1, 8.3, 8.6, 8.7, and 8.8 shall be
subject to such Early Payment Restrictions; provided that so long as any Early
Payment Restriction shall be applicable to any Debentures, the Trustee shall
(subject to its receipt of sufficient funds and the indemnity as provided in
Subsection 13.2(2)) take such action as shall not be precluded and as it shall
deem appropriate, or as it shall be directed to take by a Debentureholder's
Request, to preserve and protect the interests of holders of Debentures then
outstanding to which the Early Payment Restrictions apply and to collect all
amounts to which they may be entitled and to distribute the same to them at the
earliest date permitted by the Early Payment Restrictions, such action to
include, without limitation, filing and proving claims in any insolvency or
winding-up proceedings relating to the Bank and the enforcement of such claims
on behalf of the holders of such Debentures.
SECTION 8.5 Waiver of Default. In case an Event of Default hereunder has
occurred:
(a) the holders of not less than a majority in aggregate 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 or instruments in writing to
instruct the Trustee to waive the default
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and/or to cancel any declaration made by the Trustee pursuant to
Section 8.3 and the Trustee shall thereupon waive the default and/or
cancel such declaration upon such terms and conditions as such
Debentureholders shall prescribe; and
(b) the Trustee, so long as it has not become bound to institute any
proceeding hereunder, shall have power to waive the default if, in the
Trustee's opinion, the same shall have been cured or adequate
satisfaction made therefor, and in such event to cancel any such
declaration theretofore made by the Trustee in the exercise of its
discretion, upon such terms and conditions as the Trustee may deem
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 8.6 Right of Trustee to Enforce Payment. Subject to the provisions of
Section 8.4 and to the provisions of any Extraordinary Resolution that may be
passed by the Debentureholders, in case the Bank shall fail to pay to the
Trustee, forthwith after the same shall have been declared to be due and payable
under Section 8.3 hereof, the principal of and interest on the Debentures then
outstanding, together with any other amounts due thereunder, the Trustee may in
its discretion and shall upon receipt of a Debentureholders' Request and upon
receiving sufficient funds and the indemnity as provided in Subsection 13.2(2),
proceed in its name as Trustee hereunder to obtain or enforce payments of the
said principal of and interest on all the Debentures then outstanding together
with any other amounts due thereunder by such proceedings authorized by this
Trust Indenture or by law or equity as the Trustee in such request shall have
been directed to take, or if such request contains no such direction, or if the
Trustee shall act without such request, then by such proceedings authorized by
this Trust Indenture or by suit at law or in equity as the Trustee shall deem
expedient.
SECTION 8.7 Proceedings by the Trustee.
(1) Whenever an Event of Default has occurred, but subject to the
provisions of Section 8.4 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 Debentureholders lodged in
any bankruptcy, winding-up or other judicial proceedings relative
to the Bank;
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(b) the Trustee shall call a meeting of Debentureholders in
accordance with Article 11; and
(c) upon receipt of a Debentureholders' Request the Trustee, subject
to and upon receiving sufficient funds and the indemnity as
provided in Subsection 13.2(2) 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) Upon the exercising or taking by the Trustee of any such remedies,
whether or not a declaration and demand have been made pursuant to Section 8.3,
the principal of and interest on all Debentures then outstanding and the other
moneys payable under Section 8.3 shall forthwith become due and payable to the
Trustee as though such a declaration and a demand therefor had actually been
made.
(4) 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. Any such suit or proceeding
instituted by the Trustee may be brought in the name of the Trustee as trustee
of an express trust, and any recovery of judgment shall be for the rateable
benefit of the holders of the Debentures subject to the provisions of this Trust
Indenture. In any proceeding brought by the Trustee (and also any proceeding in
which a declaratory judgment of a court may be sought as to the interpretation
or construction of any provision of the Trust Indenture, to which the Trustee
shall be a party) the Trustee shall be held to represent all the holders of the
Debentures and it shall not be necessary to make any holders of the Debentures
parties to any such proceeding.
(5) No delay or omission of the Trustee or of the Debentureholders to
exercise any remedy referred to in Subsection 8.7(1) shall impair any such
remedy or shall be construed to be a waiver of any default hereunder or
acquiescence therein.
(6) The Trustee shall also have the power at any time and from time to time
to institute and to maintain such suits and proceedings as it may be advised
shall be necessary or advisable to preserve and protect its interests and the
interests of the holders of the Debentures.
SECTION 8.8 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
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for the execution of any trust or power hereunder or for the appointment of a
receiver or similar administrator in insolvency of the Bank with similar powers
or for a receiving order under the Bankruptcy and Insolvency Act (Canada), or
any statute hereinafter enacted in substitution therefor, as such Act, or
substituted statute, may be amended from time to time, or to have the Bank wound
up or to file or prove a claim in any liquidation or bankruptcy proceedings,
unless i) the Trustee shall have failed to act within a reasonable time after
the Debentureholders' Request referred to in Subsection 8.7 has been delivered
to the Trustee and sufficient funds and indemnity as provided for in Subsection
13.2(2) has been tendered to it, or (ii) the Trustee shall have resigned
pursuant to the provisions of Section 13.10 and a new Trustee shall not have
been appointed pursuant to Section 13.9, within a reasonable time after such
resignation. 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 8.6, 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 the
action of such Debentureholder or Debentureholders or to 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 8.9 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 7.3, in or
towards payment of the principal of and premium (if any) and
accrued and unpaid interest on (and interest on amounts in
default under), the Debentures and coupons which shall then be
outstanding, rateably and proportionately, 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;
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(c) the surplus, if any, of such moneys shall be paid to the Bank or
its successors or assigns;
provided, however, that no payment shall be made pursuant to clause (b) above in
respect of the principal of or interest on any Debentures held, directly or
indirectly, by or for the benefit of the Bank or any subsidiary or affiliate of
the Bank (other than any Debentures pledged for value and in good faith to a
person other than the Bank or any subsidiary or affiliate of the Bank, but only
to the extent of such person's interest therein) except subject to the prior
payment in full of the principal of and interest on all Debentures which are not
so held; and provided that if, at the time of the application of any such moneys
by the Trustee as aforesaid, there shall be outstanding any Debentures, the
indebtedness evidenced by which cannot be paid by the Bank by reason of the
provisions of Section 8.4, the Trustee shall retain the moneys which would
otherwise have been applied to the payment of such indebtedness until such
moneys may be so applied without violation of the provisions of Section 8.4.
Pending such application, such moneys shall be dealt with in accordance with
Section 13.5. The Trustee shall give notice to the holders of Debentures of the
earliest date on which the moneys so retained may be so applied without
violation of the provisions of Section 8.4 and, on the said date, the holders of
such Debentures shall be entitled to receive payment of the moneys so retained
together with the interest thereon.
SECTION 8.10 Distribution of Proceeds. Payment to holders of Debentures and
coupons pursuant to clause (b) of Subsection 8.9(1) shall be made as follows:
(1) At least 15 days' notice of every such payment shall be given by the
Trustee in the manner provided in Article 14 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 is not
made.
(4) The Trustee shall not be required to make any partial or 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 8.9(1), exceed 2% of the
principal amount of the outstanding Debentures, but it may retain the
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money so received by it and deal with the same as provided in Section 13.5 until
such amount, with income derived thereon, together with any other money received
by it hereunder applicable for distribution to the holders of the Debentures
shall equal at least 2% of the said aggregate principal amount or until the
Trustee shall otherwise consider it advisable to apply the same in payment
hereunder.
SECTION 8.11 Receipt of Debentureholders Good Discharge. The receipt of the
bearer or if registered as to principal only, of the registered holder of each
of the coupon Debentures for moneys paid on account of the principal thereof and
premium, if any, thereon and the receipt of the registered holder of fully
registered Debentures due thereon, and the receipt of the bearer of a coupon for
moneys paid on account of interest represented thereby shall be a good discharge
to the Trustee and to the Bank. Delivery by the bearer of a debenture or of a
coupon payable to bearer and delivery by the registered holder of a Debenture
registered as to principal or of a fully registered Debenture shall be deemed to
be a good discharge for the principal moneys, premium, if any, and interest
evidenced by such instruments respectively.
SECTION 8.12 Remedies Cumulative. No remedy herein conferred upon or reserved to
the Trustee or upon or to the Debentureholders is intended to be exclusive of
any other remedy, but each and every such remedy shall be cumulative and shall
be in addition to every other remedy given hereunder or now existing or
hereafter to exist by law.
SECTION 8.13 Trustee Appointed Attorney. The Bank hereby irrevocably appoints
the Trustee to be the attorney of the Bank in the name and on behalf of the Bank
to execute any instruments and do any acts and things which the Bank ought to
execute and do, and has not executed or done, under the covenants and provisions
contained in this Trust Indenture and generally to use the name of the Bank in
the exercise of all or any of the powers hereby conferred on the Trustee, with
full powers of substitution and revocation.
SECTION 8.14 Limitation of Liability. The obligations on the part of the Bank
expressed herein and in the Debentures are solely obligations of the Bank and no
action or proceeding shall be instituted or maintained in respect thereof
against any director or shareholder, present, past or future, or of any of the
present, past or future officers, employees or agents of the Bank, either
directly or through the Bank or otherwise; only the property of the Bank shall
be bound in respect hereof.
SECTION 8.15 Judgment Against the Bank. The Bank covenants and agrees with the
Trustee that, in case of any judicial or other proceeding to enforce the rights
of the Debentureholders, judgment may be rendered against it in favour of the
Debentureholders or in
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favour of the Trustee, as trustee for the Debentureholders, for any amount which
may remain due in respect of the Debentures and the interest thereon and any
other moneys owing hereunder.
ARTICLE 9
SATISFACTION AND DISCHARGE
SECTION 9.1 Cancellation and Destruction. All matured coupons and Debentures
shall forthwith after payment thereof be delivered to the Trustee and cancelled
by it. 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 (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 setting out the designating numbers and
denominations of the Debentures so destroyed and deliver a duplicate thereof to
the Bank.
SECTION 9.2 Non-Presentation of Debentures and Coupons. In case the holder of
any Debenture (with all coupons hereby required to be surrendered therewith) or
coupon shall fail to present the same for payment on or before the date on which
the principal thereof, the premium, if any, thereon and/or the interest thereon
or represented thereby becomes payable, on redemption, at maturity, or
otherwise, or shall not accept payment or give receipt therefor, if any, as the
Trustee may require,
(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 or
payment of any amount of interest thereon, the Bank shall be entitled
to direct the Trustee to set aside; or
{c) if the payment was pursuant to notice given by the Trustee, the
Trustee may itself 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 or 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, in the case of the payment of principal at maturity or of the
redemption price, the Debenture in respect of which payment shall have been
deemed to be made shall be deemed to have been cancelled and the holder thereof
shall thereafter have no right in respect thereof except that of receiving
payment of the moneys so set aside by the Trustee (without interest on such
moneys)
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upon due presentation and surrender thereof, subject always to the provisions of
Section 9.3. Any interest allowed by the Trustee or other depository upon the
moneys so set aside shall be payable to the Bank.
SECTION 9.3 Repayment of Unclaimed Moneys to Bank. Subject to any applicable
laws, any moneys set aside under Section 9.2 in respect of any Debenture or
coupon and not claimed by and paid to holders thereof, as provided in Section
9.2, 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
holders shall have no rights in respect of such Debenture or coupon except to
obtain payment of the moneys due thereon from the Bank.
SECTION 9.4 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 (including interest on amounts in default, if
any) 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
/or;
(c) by delivering to the Trustee, for cancellation by it, all
Debentures outstanding hereunder with all unpaid coupons
pertaining thereto;
(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, at the request and at the expense of the Bank, execute and
deliver to the Bank such instruments as it shall be advised by counsel are
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.
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ARTICLE l0
SUCCESSOR BANK
SECTION 10.1 Certain Requirements. 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 an amalgamation, of the continuing corporation resulting
therefrom, (such other person or continuing corporation being herein referred to
as a "successor bank") 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 is the opinion of counsel are
necessary or advisable to 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 to the Trustee be upon terms as not to
materially prejudice any of the rights and powers of the Trustee
or of the Debentureholders; and
(c) no condition or event shall exist in respect of the successor
bank either at the time of such transaction after giving full
effect thereto, which constitutes or would constitute an Event of
Default hereunder.
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SECTION 10.2 Vesting of Powers in Successor Bank. Whenever the conditions of
Section 10.1 have been duly observed and performed, the Trustee shall execute
and deliver the said supplemental indenture pursuant to Article 12 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 and 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 11
MEETINGS OF DEBENTUREHOLDERS
SECTION 11.1 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 in the case of a written request of the Bank, or, upon
receiving sufficient funds and indemnity as provided in Subsection 13.2(2) from
the Debentureholders against the costs which may be incurred in connection with
the calling and holding of such meeting in the case of receipt of a
Debentureholders' Request, convene a meeting of the Debentureholders. In the
event of the Trustee failing to give notice within 30 days after receipt of such
request and indemnity (and if applicable sufficient funds) to convene such
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 Toronto or at such
other place as may be approved or determined by the Trustee.
SECTION 11.2 Notice. At least 30 days' notice of any meeting shall be given to
the Debentureholders in the manner provided in Article 14 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 11.3 Chairperson. Some person, who need not be a Debentureholder,
nominated in writing by the Trustee shall be chairperson of the meeting and if
no person is so nominated, or if the person so nominated is not present within
15 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 chairperson.
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SECTION 11.4 Quorum. Subject to the provisions of Section 11.13:
(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 30
minutes 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 not a Business Day in which
case it shall stand adjourned to the next following Business Day thereafter) at
the same time and place;
(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 11.5 Power to Adjourn. The chairperson 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 11.6 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 chairperson 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 11.7 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
chairperson or by any Debentureholder or proxy for a Debentureholder, a poll
shall be taken in such manner as the chairperson 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 11.8 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,
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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 principal amount of Debentures. A proxy
need not be a Debentureholder. The chairperson shall be entitled to vote as a
Debentureholder or as a proxy or both if such be the case. 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.
SECTION 11.9 Regulations Respecting Unregistered Debentures and Proxies. The
Trustee or the Bank with the approval of the Trustee (for the purpose of
enabling the Debentureholders to be present and vote at any meeting without
producing their Debentures, and of enabling them to be present and vote at any
such meeting by proxy and by lodging instruments appointing such proxies at
some place other than the place where the meeting is to be held) may from time
to time make and from time to time vary such regulations as it shall from time
to time think fit providing for and governing:
(a) the deposit of unregistered Debentures with the Trustee or any other
person satisfactory to the Trustee, and the issue to the persons so
depositing Debentures of certificates by such person that such
Debentures have been so deposited, which certificates shall entitle
the holders thereof to be present and vote at any such meeting, and at
any adjournment thereof, and to appoint proxies to represent them and
vote for them at any such meeting, and at any adjournment thereof, in
the same way as if the persons so present and voting either in person
or by proxy were the actual bearers of the Debentures in respect of
which such certificates shall have been issued;
(b) the voting by proxy by Debentureholders and the form of instrument
appointing proxies where authorized under such regulations and the
manner in which the same shall be executed, and for the production of
the authority of any person signing on behalf of the giver of such
proxy;
(c) the deposit of 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
the time, if any, before the holding of the meeting or any adjournment
thereof by which the same shall be deposited; and
(d) the deposit of 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 instruments appointing proxies to be
mailed, cabled, telegraphed, telecopied or sent by telex before the
meeting to the Bank or to the Trustee at the place where
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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. The Trustee may
dispense with any such deposit and permit Debentureholders to provide proof of
ownership in such other manner as the Trustee may approve. Save as such
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 11.10 Bank and Trustee may be Represented. The Bank and the
Trustee, by their respective officers and directors, and the legal advisers of
the Bank and the Trustee may attend any meeting of the Debentureholders but
shall have no vote as such.
SECTION 11.11 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) 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) 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) to waive and direct the Trustee to waive any 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 such default made
by the Trustee pursuant to Section 8.3 either unconditionally or
upon any conditions specified in such Extraordinary Resolution;
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(d) to restrain any Debentureholder or the holder of any coupon from
taking, instituting or maintaining any suit, action or 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 and to
require such holder of any Debenture or coupon to waive any
default or defaults by the Bank on which any action or proceeding
is founded; and, in case any action or other proceedings shall
have been brought by any holder of any Debentures or coupons
after failure of the Trustee to act, power to direct such
holder and the Trustee to waive the default in respect of which
such action or other proceeding shall have been brought, upon
payment of the cost, the charges and expenses incurred in
connection therewith, and to stay or discontinue or
otherwise deal with any such action or other proceeding;
(e) 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) to repeal, modify or amend any Extraordinary Resolution
previously passed or sanctioned by the Debentureholders or by any
committee appointed pursuant to Subsection 11.11(2);
(g) to assent to any modification of or change in or omission from
the provisions contained herein and in the Debentures 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;
(h) to assent to any scheme for the reconstruction, reorganization or
recapitalization of the Bank or for the consolidation,
amalgamation, or merger of the Bank with or into any other person
or for the sale, leasing, transfer or other disposition of the
undertaking, property and assets of the Bank or any part thereof,
provided that no such sanction shall be necessary in respect of
any such transaction if the provisions of Section 10.1 shall have
been complied with;
(i) to assent to any compromise or arrangement with any creditor or
creditors or any class or classes of creditors, whether secured
or otherwise, and with holders of any shares, debentures or other
securities of the Bank; provided that no such consent shall be
required in respect of any compromise or arrangement made by the
Bank in the ordinary course of its business; and
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(j) to remove the Trustee and to appoint a new Trustee to take the
place of the Trustee so removed.
(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 11.11(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 chairperson 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 liable for any loss arising from or in
connection with any action taken or omitted to be taken in good faith.
(3) Notwithstanding subsections (1) and (2) above, no Extraordinary
Resolution shall modify, abrogate, alter, compromise, arrange or otherwise
affect the rights and obligations of:
(a) the Trustee hereunder without the Trustee's express written
consent, such consent not to be unreasonably withheld; or
(b) the Bank hereunder without the Bank's express consent.
SECTION 11.12 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.
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SECTION 11.13 Meaning of "Extraordinary Resolution".
(1) The expression "Extraordinary Resolution" when used in this Trust
Indenture means, subject as hereinafter in this Section 11.13 and in Sections
11.15 and 11.17 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 11 at which
the holders of more than 25% 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 25% in principal amount
of the Debentures outstanding are not present in person or by proxy within 30
minutes 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 21 nor more than 60 days later, and to such place and time as may be
appointed by the chairperson. Not less than ten days notice shall be given of
the time and place of such adjourned meeting in the manner provided in Article
14. 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 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 11.13(1)
shall be an Extraordinary Resolution within the meaning of this Trust Indenture,
notwithstanding that the holders of more than 25% 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 11.14 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 chairperson of the meeting at
which such resolutions were passed or proceedings had, or by the chairperson 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.
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SECTION 11.15 Instruments in Writing. All actions which may be taken and all
powers that may be exercised by the Debentureholders at a meeting held as
hereinbefore described in this Article 11 provided may also be taken and
exercised at any time by the holders of not less than 66 2/3% in the principal
amount of all the then 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 11.16 Binding Effect of Resolutions. Subject to the provisions of
Section 11.17, every resolution and every Extraordinary Resolution passed in
accordance with the provisions of this Article 11 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 11.15 shall be binding upon all the
Debentureholders, whether signatories thereto or not, and each and every
Debentureholders, coupon holder and the Trustee (subject to the provisions for
its indemnity herein contained) shall be bound to give effect accordingly to
every such resolution, Extraordinary Resolution and instrument in writing.
SECTION 11.17 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 11.15, especially affects the rights of the holders of Debentures of
one or more series or maturities (and for the purposes of this Section 11.17,
"series" shall be deemed, unless the context otherwise requires, to mean any
series or maturity and also any part of a series or maturity) 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 (as to which an opinion of
counsel, at the expense of the Bank, shall be binding on all Debentureholders,
the Trustee and the Bank for all purposes hereof) then:
(a) reference to such fact, indicating each series so especially
affected, shall be made in the notice of such meeting and the
meeting shall be and be deemed to be and is herein called a
"serial meeting"; and
(b) the holders of Debentures of such series so especially affected
shall not be bound by any action taken at a serial meeting or by
instruments in writing under Section 11.15 unless in addition to
compliance with the other provisions of this Article:
(i) in the case of a serial meeting, reference to the fact that
the business to be transacted at the meeting of
Debentureholders especially affects the rights of the
Debentureholders of the particular series is made in the
notice of such meeting;
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(ii) at such serial meeting:
(A) there are present in person or by proxy holders of at
least 25% in principal amount of the outstanding
Debentures of such series, 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 voted on
the resolution; or
(ii) in the case of action taken or power exercised by instrument
in writing under Section 11.15, such instrument is signed in
one or more counterparts by the holders of not less than 66
2/3% in principal amount of the outstanding Debentures of
such series.
(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 11.15, does not adversely affect the rights of the holders
of Debentures of one or more particular series or maturities, the provisions of
this Article 11 shall apply as if the Debentures of such series were not
outstanding and no notice of any such meeting need be given to the holders of
Debentures of such series. 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 are outstanding
shall be deemed not to adversely affect the rights of the holders of Debentures
of any other series.
(3) A proposal (i) to extend the maturity of Debentures of any particular
series 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 Sections 1.1, 8.5,
11.4, 11.5, 11.6, 11.7, 11.13 or 11.15 or in this Section 11.17, shall be
deemed to especially affect the rights of the holders of Debentures of such
series, 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,
whether or not a similar extension, reduction, modification or termination is
proposed with respect to Debentures of any or all other series.
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ARTICLE 12
SUPPLEMENTAL INDENTURES
SECTION 12.1 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 this Trust Indenture, and they shall, when so directed by
this Trust Indenture, 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:
(a) establishing the terms of any subsequent series of additional
Debentures and the forms and denominations in which they may be
issued as provided in Article 2;
(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 8 if, in the opinion of the Trustee,
such addition will not be prejudicial to the interests of
Debentureholders generally;
(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 10;
(d) giving effect to any Extraordinary Resolution passed as provided
in Article 11;
(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 or the Trustee
may deem necessary or advisable and which, in the opinion of the
Trustee, do not adversely affect in any material respect the
interests of the holders of the Debentures, or any series or
maturity or any part of a series or maturity thereof then
outstanding, or the rights and powers of the Trustee, 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
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provisions relating to trust indentures contained in any
applicable 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 from time to time be necessary or advisable to
conform the same to applicable legislation as that term is
defined in Subsection 13.1(1); and
(h) for any other purpose not inconsistent with the terms of the
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.
SECTION 12.2 No Conflict with Supplemental Indenture.
If a term contained in this Trust Indenture shall conflict or be
inconsistent with any term of a supplemental indenture in relation to a series
of additional Debentures, the terms of such supplemental indenture shall govern
as the same relates to the series of additional Debentures created thereby;
provided however, that the terms and provisions of such supplemental indenture
may modify or amend the terms and provisions of this Trust Indenture solely as
applied to such series.
ARTICLE 13
CONCERNING THE TRUSTEE
SECTION 13.1 Trust Indenture Legislation.
(1) In this Article 13, the term "applicable legislation" means the
provisions, if any, of the Bank Act and any statute that may be substituted
therefor as from time to time amended and any other statute of Canada or a
province thereof, 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, including banks, issuing debt obligations under
trust indentures, to the extent that such provisions are in the opinion of
counsel 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.
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(3) The Bank and the Trustee agree that each will at all times in relation
to this Trust Indenture and any action to be taken hereunder, observe and comply
with and be entitled to the benefits of applicable legislation.
SECTION 13.2 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 the care, diligence and skill a reasonably prudent trustee
would exercise in comparable circumstances.
(2) Subject only to Subsection 13.2(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) The Trustee will not be in contravention of the provisions of
Subsection 13.2(1) above if it acts and relies in good faith upon certificates,
opinions, reports, resolutions or notices furnished pursuant to the provisions
of this Article 13 or required by the Trustee to be furnished to it in the
exercise of its rights and duties hereunder if such certificates, opinions,
reports, resolutions or notices comply with the provisions of Sections 13.3 and
13.4 below, if applicable, and with any other applicable provisions of this
Trust Indenture.
SECTION 13.3 Evidence of Compliance.
(1) The Bank shall furnish to the Trustee evidence of compliance with every
covenant, condition or other requirement relating to any action required or
permitted to be taken by the Bank or the Trustee under this Trust Indenture or
as a result of any obligation imposed under this Trust
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Indenture, including without limitation, the creation, issue, certification and
delivery of Debentures hereunder, the satisfaction and discharge of this Trust
Indenture and any act to be done by the Trustee at the request of the Bank,
forthwith if and when:
(a) such evidence is required to be furnished to the Trustee in
accordance with the terms of this Trust Indenture, or
(b) the Trustee, in the exercise of its rights and duties under this
Trust Indenture, gives the Bank written notice requiring it to
furnish such evidence in relation to any particular action or
obligation specified in such notice.
(2) Evidence of compliance with any covenant, condition or other
requirement relating to the certification and delivery of Debentures hereunder,
the satisfaction and discharge of this Trust Indenture or any act to be done by
the Trustee at the request of the Bank shall consist of:
(a) a certificate of the Bank stating that any such covenant,
condition or other requirement has been complied with in
accordance with the terms of this Trust Indenture;
(b) in the case of any covenant, condition or other requirement
compliance with which is subject to the review or examination by
legal counsel, an opinion of counsel that the covenant, condition
or other requirement has been complied with in accordance with
the terms of this Trust Indenture; and
(c) in the case of any covenant, condition or other requirement
compliance with which is subject to the review or examination of
auditors or accountants, an opinion or report of the Bank's
auditors or any other duly, licensed independent accountant or
accountants, in either case approved by the Trustee, that the
covenants, conditions or other requirements have been complied
with in accordance with the terms of this Trust Indenture.
(3) Evidence of compliance required under Subsection 13.3(2) shall include
a statement of the persons giving the evidence:
(a) that such persons have read and understand the provisions of this
Trust Indenture under which such evidence of compliance is
required;
(b) describing the nature and scope of the examination or
investigation on which such persons based the certificate or
opinions;
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(c) declaring that, in the belief of the persons giving the evidence,
such persons have made such examination or investigation as such
persons believe necessary to enable the statements to be made or
the opinions contained or expressed therein to be given; and
(d) stating whether in the opinion of such persons such covenant,
condition or other requirement has been complied with or
satisfied.
(4) Evidence of compliance, other than evidence relating to the matter
referred to in Subsection 13.3(2) required to be furnished to the Trustee in
accordance with the terms of this Trust Indenture, may consist of a report or
opinion of any counsel, auditor, accountant, engineer or appraiser or any other
person (including a director or officer or employee of the Bank) whose
qualifications give authority to a statement made by that person, as the Trustee
may reasonably require. Evidence of compliance required by the Trustee in the
exercise of its rights and duties under this Trust Indenture, shall be, so far
as appropriate, in accordance with Subsection 13.3(2). Any opinion made or given
by counsel, the Bank's auditors or accountants under Subsections 13.3(2) or
13.3(4) may be based, insofar as it relates to factual matters on information
with respect to which is in the possession of the Bank, upon the certificate or
opinion of or representations by an officer or officers of the Bank, unless such
counsel, auditors or accountants know, or in the exercise of reasonable care
should have known, that the certificate or opinion or representations with
respect to the matters upon which the certificate or opinion is based as
aforesaid is or are erroneous.
SECTION 13.4 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 the Bank Act and 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 certificates of the Bank,
statutory declarations, opinions, reports, or other evidence furnished to the
Trustee pursuant to any provision hereof or pursuant to a request of the Trustee
provided that such statutory declarations, opinions, reports or certificates
comply with the provisions of this Trust Indenture and the Trustee examines the
same in order to determine if they indicate such compliance
(3) Any instrument which this Trust Indenture requires or permits to be
signed or executed by Debentureholders or any of them (including a
Debentureholders' Request) may be in any number of instruments of similar tenor
and may be signed or executed by such Debentureholders in person or by attorney
duly appointed in writing. Proof of the execution of any such instrument, or of
a writing appointing any such attorney or (subject to the provisions of
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Section 11.9 hereof with regard to voting at meetings of Debentureholders) of
the holding by any person of unregistered Debentures shall be sufficient for any
purpose of this Trust Indenture if made in the following manner:
(a) the fact and date of the execution by any person of such
instrument or writing may be proved:
(i) by the certificate of any notary public or other official
authorized to take acknowledgments of deeds to be recorded
at the place where such certificate is made, that the person
signing such instrument or writing acknowledged the
execution thereof;
(ii) by an affidavit of a witness of such execution; or
(iii) in any other manner which the Trustee may consider
adequate;
(b) the fact of the holding by any person of unregistered Debentures
and the amounts, designations and numbers thereof and the date of
holding the same may be proved by deposit with the Trustee of.
(i) such Debentures; or
(ii) a certificate executed by any bank, banker, trust company or
other depository satisfactory to the Trustee, certifying
that on the date therein mentioned, such person had on
deposit with such depository the Debentures described in
such certificate and that such Debentures will remain so
deposited until the surrender or cancellation of the
certificate.
The ownership of registered Debentures shall be proved by the registers as
hereinbefore provided.
The Trustee shall not be bound to recognize any person as the holder of
unregistered Debentures unless and until the person's title thereto is proved as
provided in this Subsection 13.4(3).
The Trustee may, in its discretion, require further proof of matters referred to
in this Subsection 13.4(3) in cases where it deems further proof desirable or
may accept such other proof as it shall consider proper notwithstanding this
Subsection 13.4(3).
(4) The Trustee may employ or retain such counsel, accountants, engineers,
appraisers or other experts or advisers or agents as it may reasonably require
for the purpose of discharging its duties hereunder and may pay reasonable
remuneration and costs for all services so performed
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by any of them, without taxation of costs of any counsel, and shall not be
responsible for any negligence or misconduct on the part of any of them.
(5) The Trustee may in relation to this Trust Indenture act on the opinion
or advice of or information obtained from any counsel, auditor, accountant,
valuer, surveyor, engineer, broker, auctioneer or other expert, whether obtained
by the Trustee or by the Bank or otherwise.
(6) Whenever by this Trust Indenture the Trustee is authorized to employ
counsel, the costs of such counsel need not be assessed unless the Trustee or
the Bank shall deem it necessary to assess the same, but may be fixed by the
Trustee and paid as a lump sum whether incurred before or after a declaration
has been made under Section 8.3 hereof or before or during proceedings taken to
enforce the provisions of this Trust Indenture and no costs paid in good faith
by the Trustee under the provisions of this Subsection 13.4(6) shall be
disallowed in the taking of any accounts by reason only of the fact that such
costs are greater than they might have been if taxed or by reason of their not
having been assessed but such costs so paid by the Trustee shall be allowed and
paid to the Trustee. For greater certainty, the cost of any such taxation or
assessment of cost shall be borne by the Bank.
SECTION 13.5 Documents, Moneys, etc., Held by Trustee. Any securities, moneys,
documents of title or other instruments that may at any time be held by the
Trustee subject to the 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, with the consent Bank,
may 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 at a rate of interest then current on similar deposits, or
invest such moneys in obligations 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. In respect of moneys held by the Trustee after an
Event of Default, all moneys shall be deposited in the name of the Trustee in a
Schedule I Canadian chartered bank, other than the Bank at the rate of interest
then current on similar deposits or invested in obligations issued or guaranteed
by the Government of Canada or any Schedule I Canadian chartered bank (other
than the Bank) maturing not more than one year from the date of investment.
Unless an Event of Default shall have occurred and be continuing, all interest
or other income received by the Trustee in respect of such deposits and
investments shall be for the account of and belong to the Bank provided,
however, that the Trustee may apply such interest and other income to pay
amounts howsoever payable hereunder (including without limitation the
remuneration and expenses of the Trustee).
SECTION 13.6 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
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to preserve, protect or enforce its interests and the interests of the
Debentureholders, subject to receipt of sufficient funds and the indemnity as
provided in Subsection 13.2(2).
SECTION 13.7 Trustee not Required to Give Security. The Trustee shall not be
required to give any bond or security in respect of the execution of the trusts
or its conduct or administration hereunder.
SECTION 13.8 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 the
representation contained in Section 13.10 or in the certificate of the Trustee
on the Debentures) 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) Subject to Section 13.10, the Trustee in its personal capacity or any
other capacity may buy, sell, lend upon and deal in securities of the Bank and
in the Debentures either with the Bank or otherwise and generally may contract
and enter into financial transactions with the Bank or otherwise, without being
liable to account for any profit made thereby.
(6) The Trustee shall not be bound to act in accordance with any direction
or request of the Bank until a duly authenticated copy of the instrument or
resolution containing such direction or request shall have been delivered to the
Trustee, and the Trustee shall be empowered to act upon any such copy purporting
to be authenticated and believed by the Trustee to be genuine.
(7) The Trustee shall not be required to act or refrain from acting
pursuant to a request from the Bank or, subject to Subsection 13.2(2), the
Debentureholders pursuant to an Extraordinary Resolution, or to take any
measures to enforce this Trust Indenture or any covenant herein contained until
furnished with sufficient funds for the purpose and/or an indemnity to its
reasonable satisfaction.
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(8) The Bank shall indemnify and agrees to hold the Trustee, its directors,
officers and employees harmless from and against any and all taxes, charges,
costs, expenses, damages, claims, demands and liabilities to which they, or any
of them, may become subject, including legal and accounting costs for or in
respect of anything done or omitted to be done in connection with this Trust
Indenture, except such as may arise from the negligence, willful misconduct or
lack of good faith of the Trustee, its directors, officers and employees, such
indemnification to survive the resignation or removal of the Trustee and the
termination of this Trust Indenture and any trust created hereby.
(9) The Trustee shall not be required to take notice or be deemed to have
notice or actual knowledge of any matter hereunder, including an Event of
Default, unless the Trustee shall have received from the Bank or a
Debentureholder written notice stating the matter in respect of which the
Trustee should have notice or actual knowledge.
SECTION 13.9 Replacement of Trustee. The Trustee may resign its, trust and be
discharged from all further duties and liabilities hereunder by giving to the
Bank not less than 90 days' notice in writing or such shorter notice as may be
required to comply with Section 13.10 or as the Bank may accept as sufficient.
In the event of the Trustee resigning or being removed by the Debentureholders
by Extraordinary Resolution 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; failing such appointment by the Bank, the retiring
Trustee or any Debentureholder may apply to a Justice of the Ontario Court
(General Division), or successor court thereto, on such notice as such Justice
may direct, for the appointment of a new Trustee; but any new Trustee so
appointed by the Bank shall be subject to removal as aforesaid by the
Debentureholders. Any new Trustee appointed under any provision of this Section
13.9 shall be a company to which the Trust and Loan Companies Act (Canada), or
any statute enacted hereafter in substitution therefor, as such Act or
substituted statute may be amended from time to time, applies or a body
corporate authorized to carry on the business of a trust company in the Province
of Ontario and there shall not exist a material conflict of interest in its role
as a fiduciary under this Trust Indenture. On any such 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, is the opinion of counsel, be necessary or advisable for the purpose of
assuring the same to the new Trustee. The Trustee shall immediately make
available to the new Trustee all books and records whether written or otherwise
recorded, relating to the administration by the Trustee of the trusts herein
provided, which books and records are required by the new Trustee for the proper
and efficient administration of the trusts herein provided.
Any company into which the Trustee may be merged or with which it may be
consolidated or amalgamated or any company resulting from any merger,
consolidation or amalgamation to which
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the Trustee shall be a party, shall be the successor Trustee under this Trust
Indenture without the execution of any instrument or any further act; provided
that such successor Trustee shall be a corporation qualified to carry on the
business of a trust company in each of the provinces of Canada and shall not
have a material conflict of interest in its role as a fiduciary under this Trust
Indenture and any other role.
SECTION 13.10 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 any other role and agrees that in
the event of a material conflict of interest arising hereafter it will, within
90 days after ascertaining that it has such material conflict of interest,
either eliminate the same or resign its trust hereunder.
SECTION 13.11 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 14
NOTICES
SECTION 14.1 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 delivered to or sent by
first class mail, postage prepaid, addressed to such holders at their
respective addresses appearing on the register maintained under
Article 3; and if in the case of joint holders of any Debentures more
than one address appears in the register in respect of such joint
holding, such notice shall be addressed only to the first address so
appearing, and any notice so given shall be sufficient notice to all
holders of such Debentures; and
(b) to the holders of unregistered Debentures if such notice is published
twice in a daily newspaper of general circulation in the English and
French language in the City of Montreal and in the English language in
each of the cities of Halifax, Toronto, Winnipeg, ▇▇▇▇▇▇, Calgary and
Vancouver, and in such other cities, if any, as may be required by the
Trustee, provided that the second publication shall not be less than
three Business Days after the first publication.
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Any notice so given shall be deemed to have been given, if delivered, on the
first Business Day after the delivery, or if mailed, five Business Days after
the date of mailing providing that during any general postal disruption, notice
may be given by delivery as aforesaid or in such other manner as the Trustee may
approve. Any notice so given by publication shall be deemed to have been given
on the day on or by which it has first been published 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 14.2 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, or by
facsimile transmission or other electronic communication (with receipt
confirmed) addressed to the Trustee at its principal office in Toronto at ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ MSX 1A1, Attention: Senior Manager, Indenture
Trust. Any notice given by delivery will be deemed to have been given on the
first Business Day after delivery and, if given by registered mail, on the fifth
Business Day following the mailing as aforesaid and, if given by facsimile
transmission or other electronic communication (with receipt confirmed), on the
day of transmittal thereof if given during the normal business hours of the
recipient and on the Business Day during which such normal business hours next
occur if not given during such hours on any day. The Trustee may from time to
time notify the Bank of a change in address which thereafter, until changed by
like notice, shall be the address of the Trustee for all purposes of this Trust
Indenture.
SECTION 14.3 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, or by facsimile
transmission or other electronic communication (with receipt confirmed)
addressed to the Bank at First Canadian Place, Toronto, Ontario, M5X 1A1,
Attention of the Secretary. Any notice given by delivery will be deemed to have
been given on the first Business Day after delivery and, if given by registered
mail, on the fifth Business Day following the mailing as aforesaid and, if given
by facsimile transmission or other electronic communication (with receipt
confirmed), on the day of transmittal thereof if given during the normal
business hours of the recipient and on the Business Day during which such
normal business hours next occur if not given during such hours on any day. 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.
SECTION 14.4 Mail Service Interruption. If by reason of any interruption of mail
service, actual or threatened, any notice to be given to the Trustee or to the
Bank would reasonably be
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unlikely to reach its destination in the ordinary course of mail, such notice
shall be valid and effective only if delivered to an officer of the party to
which it is addressed or given by facsimile transmission or other written
telecommunication.
ARTICLE 15
FORM OF SERIES 19 DEBENTURES
SECTION 15.1 Form of Series 19 Debentures. The following is the form of Series
19 Debentures referred to in Section 2.4.
ENGLISH TEXT
THIS IS NOT A DEPOSIT INSURED UNDER THE CANADA DEPOSIT
INSURANCE CORPORATION ACT
No. 19R $_________
BANK OF MONTREAL
(Incorporated under the laws of Canada)
7.40 % DEBENTURE, SERIES 19, DUE 2011
(subordinated indebtedness)
BANK OF MONTREAL (the "Bank"), for value received, hereby acknowledges
itself indebted and promises to pay to ________________________________________
or registered assigns on March 14, 2011 the principal sum of
DOLLARS ($________)
in lawful money of Canada at any branch in Canada of the Bank, at the holder's
option, and until payment of the said principal, sum to pay interest thereon at
the rates of interest and on the dates hereinafter provided from the date
hereof, or from the last interest payment date to which interest shall have been
paid or made available for payment on the Series 19 Debentures, whichever is the
later, at the same places in like money. The Series 19 Debentures bear interest
at the rate of 7.40% per annum from and including the date of issue to but
excluding March 14, 2006, payable monthly in arrears on the fourteenth day of
each month, with overdue interest, if any, at the same rate after as well as
before default in the payment of principal or interest. The first payment of
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interest will be made on January 14, 1996, and will represent interest from the
date of issue. From March 14, 2006, the Series 19 Debentures will bear interest
at a rate per annum equal to the 90 day Bankers' Acceptance Rate (as defined in
the Trust Indenture hereinafter referred to) plus 1.00%, payable quarterly in
arrears on June 14, September 14, December 14 and March 14 in each year
("Interest Payment Dates") commencing June 14, 2006 with overdue interest, if
any, in respect of any quarterly interest period at the rate applicable to such
quarterly period after as well as before default in the payment of principal or
interest.
As the interest matures, the Bank (except in case of payment at maturity,
in which case payment of interest may, at the option of the Bank, be made upon
surrender of this Debenture) shall forward to the registered address of the
holder hereof by prepaid mail, prior to the applicable interest payment date, a
cheque for such interest drawn on the Bank and payable at any branch in Canada
of the Bank at the holder's option, or by such other means as may become
customary for the payment of interest on bank subordinated indebtedness.
This Debenture is one of the Debentures of the Bank issued or issuable in
one or more series under the provisions of a trust indenture (the "Trust
Indenture") dated as of December 14, 1995 between the Bank and The Trust Company
of Bank of Montreal, as trustee (the "Trustee"). The 7.40% Debentures, Series
19, Due 2011 (herein sometimes referred to as the "Series 19 Debentures"), of
which this is one, are limited to an aggregate principal amount of $125,000,000
in lawful money of Canada and mature on March 14, 2011.
The Series 19 Debentures are direct unsecured obligations of the Bank,
constituting subordinated indebtedness for the purposes of the Bank Act
(Canada), and rank equally and rateably with all debentures of the Bank from
time to time issued and outstanding under the Trust Indenture, the trust
indenture dated as of February 1, 1978, including all instruments supplemental
thereto, and the trust indenture dated as of July 23, 1986 (collectively, the
"Indentures"). The indentures provide that in the event of the insolvency or
winding-up of the Bank, the indebtedness evidenced by all debentures issued
thereunder, including the Series 19 Debentures, will be subordinate in right of
payment to the prior payment in full of the deposit liabilities of the Bank;
except liabilities which by their terms rank in right of payment equally with or
subordinate to indebtedness evidenced by all such debentures. Reference is made
to the Trust Indenture for a further statement of the rights of the holders of
Series 19 Debentures, of the Bank and of the Trustee and the terms and
conditions upon which the Series 19 Debentures are issued and held, to all of
which the holder of this Debenture, by acceptance hereof, assents.
The Series 19 Debentures are not redeemable for any purpose prior to March
14, 2006. Subject to the provisions of the Bank Act (Canada), including the
prior approval of the Superintendent of Financial Institutions, the Bank may
redeem all but not less than all of the Series 19 Debentures on March 14, 2006
or on any Interest Payment Date thereafter, on not less than 30 days nor more
than 60 days notice, all as provided in the Trust Indenture, at 100% of the
principal amount thereof plus accrued and unpaid interest to the date fixed for
redemption.
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The Bank, with the prior approval of the Superintendent of Financial
Institutions, shall have the right, at any time after the fifth anniversary of
the date of issue of the Series 19 Debentures, to purchase Series 19 Debentures
in the market, by tender or by private contract at any price.
On March 14, 2006 (the "Series 19 Conversion Date"), the registered holder
of this Series 19 Debenture may, but only upon notice from the Bank, which may
be given only with the prior approval of the Superintendent of Financial
Institutions, convert (the "Series 19 Conversion Option") all, but not less than
all, of this Series 19 Debenture into an equal aggregate principal amount of New
Debentures (as defined in the Trust Indenture). If given, such notice from the
Bank shall be given to the registered holders of the Series 19 Debentures not
less than 30 days nor more than 60 days prior to the Series 19 Conversion Date,
all as provided in the Trust Indenture, and such holders shall thereupon have
the option to effect such conversion on the terms and conditions set forth in
the Trust Indenture. The Series 19 Conversion Option may be exercised by the
holder completing the Exercise of Conversion Option form which appears on the
reverse side hereof and delivering and surrendering this Series 19 Debenture to
the Trustee, or its agent, at any one of its principal offices in the cities
hereinafter mentioned or at such other places as may be designated in the Bank's
notice at or prior to 4:00 p.m. (local time) on the Series 19 Conversion Date.
Exercise of the Series 19 Conversion Option is irrevocable.
The Trust Indenture provides, among other things, for: (a) the acceleration
of the maturity of this Series 19 Debenture in the case of an Event of Default
(as defined in the Trust Indenture), and (b) the holding of meetings of
Debentureholders and for making binding on all Debentureholders certain
decisions taken thereat.
The Series 19 Debenture shall be transferable through the facilities of the
Trustee, or its agent, in the cities of Halifax, Montreal, Toronto, Winnipeg,
▇▇▇▇▇▇, Calgary and Vancouver, and at such other places as may be designated
from time to time by the Bank with the approval of the Trustee, and it may be
transferred only by the registered holder hereof or his attorney duly authorized
in writing.
This Series 19 Debenture shall not become obligatory for any purpose until
it shall have been certified by or on behalf of the Trustee.
IN WITNESS WHEREOF this Series 19 Debenture has been duly executed, the
corporate seal of the Bank affixed hereon and dated December 14, 1995.
BANK OF MONTREAL
By: And:
--------------------------------- -----------------------------------
Chairperson Secretary
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(Form of Transfer)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
-------------------------------------
(Name of New Holder)
-------------------------------------
(Full Postal Address)
this Series 19 Debenture, and hereby irrevocably authorizes and directs the
Trustee to transfer this Series 19 Debenture on the register of holders into the
name of the new holder herein designated.
Dated
----------------
Signature guaranteed by:
------------------------------------- ----------------------------------------
Signature of Guarantor** Signature of Transferring
Registered Holder*
(Form of Trustee's Certificate)
TRUSTEE'S CERTIFICATE
This Debenture is one of the Series 19 Debentures of Bank of Montreal issued
under the Trust Indenture within mentioned.
THE TRUST COMPANY OF BANK OF MONTREAL
By:
------------------------------------
Authorized Signatory
* The signature must correspond with the name of the registered holder as it
appears on the register.
** The guarantor must be a Canadian chartered bank, trust company or member of
a recognized stock exchange.
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(Form of Exercise of Series 19 Conversion Option)
EXERCISE OF SERIES 19 CONVERSION OPTION
The undersigned, being the registered holder of this Series 19 Debenture,
hereby elects to convert this Series 19 Debenture into an equal aggregate
principal amount of New Debentures of Bank of Montreal on the Conversion Date
and hereby irrevocably delivers and surrenders this Series 19 Debenture to The
Trust Company of Bank of Montreal, as Trustee, or its agent, for conversion.
Date
---------------------
Signature guaranteed by:
------------------------------------- ----------------------------------------
Signature of Guarantor** Signature of Registered Holder*
* The signature must correspond with the name of the registered holder as it
appears on the register.
** The guarantor must be a Canadian chartered bank, trust company or member of
a recognized stock exchange.
-65-
FRENCH TEXT
LA PRESENTE NE CONSTITUE PAS UN DEPOT ASSURE EN VERTU DE LA LOI SUR LA SOCIETE
D'ASSURANCE-DEPOTS DU CANADA
No 19 R $_____
BANQUE DE MONTREAL
(Constituee en vertu des ▇▇▇▇ du Canada)
DEBENTURE 7,40%, Serie 19, ECHEANT EN 2011
(titre secondaire)
BANQUE DE MONTREAL (la"Banque"), pour valeur recue, reconnait par les
presentes devoir et promet de payer a
ou a ses ayants droit inscrits, le 14 mars 2011, le montant en capital de
DOLLARS( _____$)
en monnaie legale du Canada a toute succursale de la Banque au Canada, au gre du
porteur, et de payer l'interet sur ce montant aux taux d'interet et aux dates
prevus ci-apres a compter de la plus tardive de la date des presentes ou de la
demiere date de paiement d'interet a laquelle l'interet aura ete paye ou offert
en paiement sur les debentures de la serie 19, jusqu'au parfait paiement de ce
montant, en meme monnaie et aux memes endroits. Les debentures de la serie 19
portent interet au taux de 7,40% par annee a compter de la date d'emission,
inclusivement, jusqu'au 14 mars 2006, exclusivement, payable mensuellement et
non a l'avance le 14 jour de chaque mois avec interet au meme taux sur l'arriere
d' interet, s'il y a lieu, apres comme avant tout defaut de paiement du capital
ou de l'interet. Le premier paiement de l'interet s'effectuera le 14 janvier
1996 et representera l'interet a compter de la date d'emission. A partir du 14
mars 2006, les debentures de la serie 19 porteront interet a un taux annuel
equivalent au taux des acceptations bancaires de 90 jours (tel que defini a
l'acte de fiducie mentionne ci-apres) majore de 1,00%, payable trimestriellement
et non a l'avance les 14 juin, 14 septembre, 14 decembre et 14 mars de chaque
annee (les "dates de paiement d'interet"), a compter du 14 juin 2006, avec
intret sur l'arriere d'interet, s'il y a lieu, relativement a toute periode
d'interet trimestrielle, au taux applicable a cette periode d'interet
trimestrielle, apres comme avant tout defaut de paiement du capital ou de
l'interet.
Selon l'echeancier de l'interet (sauf lors du paiement a l'echeance, auquel
cas le paiement de l'interet pourra, au gre de la Banque, etre effectue sur
remise de la presente debenture), la Banque en effectuera le paiement en
expedient en expedient par courier affranchi a `l adresse inscrite du porteur de
la presente, avant la date de paiement d'interet applicable, un cheque pour
l'interet alors du tire sur la Banque et encaissable a toute succursale de la
Banque au Canada, au gre du porteur, ou de.
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toute autre maniere qui sera d'usage pour le paiement de l'interet sur des
titres secondaires de banque.
Cette debenture est l'une des debentures de la Banque emises ou pouvant
etre emises en une ou plusieurs series en vertu des dispositions d'un acte de
fiducie (l' "acte de fiducie") intervenu en date du 14 decembre 1995 entre la
Banque et la Societe de fiducie Banque de Montreal, a titre de fiduciaire (le
"fiduciare"). Les debentures 7,40%, serie 19, echeant en 2011 (quelquefois
designees ci-apres les "debentures de la serie 19"), dont cette debenture fait
partie, sont limitees a un montant en capital global de 125 000 000 $ en monnaic
legale du Canada et viennent a echeance le 14 mars 2011.
Les debentures de la serie 19 constituent des obligations directes et non
garanties de la Banque ainsi que des titres secondaires au sens de la Loi sur
les banques (Canada). Elles ont egalite de rang avec toutes les debentures de la
Banque emises et en circulation de temps a autre en vertu de l'acte de fiducie,
de l'acte de fiducie en date du 1__ fevrier 1978, ainsi que tous les actes
supplementaires, et de l'acte de fiducie en date du 23 juillet 1986
(collectivement, les "actes de fiducie"). Les actes de fiducie prevoient qu'en
cas d'insolvabilitie ou de liquidation de la Banque, la dette constatee par
toutes les debentures emises en vertu de ceux-ci, y compris les debentures de la
serie 19, sera subordonnee, quant au droit de paiement, au paiement prioritaire
et integral du passif-depots de la Banque, sauf des elements de passif qui,
selon leurs modalites, ont un rang egal ou subordonne a la dette constatee par
toutes ces debentures. Il y a lieu de se reporter a l'acte de fiducie pour le
detail des droits des porteurs de debentures de la serie 19, ceux de la Banqueet
du fiduciaire et pour les modalites en vertu desquelles les debentures de la
serie 19 sont emises et detenues, a l'ensemble desquels le porteur de cette
debenture acquiesce par son acceptation des resentes.
Les debentures de la serie 19 ne peuvent en aucun cas etre remboursees par
anticipation avant le 14 mars 2006. Sous reserve des dispositions de la Loi sur
les banques (Canada), y compris l'approbation prealable du Surintendant des
institutions financiers, la Banque peut, a son gre, rembourser par anticipation
la totalite, mais non moins de la totalite, des debentures de la serie 19 le 14
mars 2006 ou a toute date de paiement d'interet par la suite, moyennant un avis
prealable d'au moins 30 jours et d'au plus 60 jours, ainsi qu'il est prevu dans
l'acte de fiducie, au pair majore des interests courus et impayes a la date
fixee pour le remboursement.
Apres la cinquieme anniversaire de la date d'emission des debentures de la
serie 19, la Banque peut, avec l'approbation prealable du Surintendant des
institutions financiers, acheter les debentures de la serie 19 sur le marche
libre, ou par ▇▇▇▇▇ d'offres ou par convention privee, a quelque prix que ce
soit.
Le 14 mars 2006 (la "date de conversion"), le porteur inscrit de cette
debenture de la serie 19 peut, a condition d'avour recu un avis de la Banque,
lequel ne peut etre donne qu'avec l'approbation prealable du Surintendent des
institutions financiers, convertir ("l'option de conversion") la totalite, mais
non moins de la totalite, de cette debenture de la serie 19 en un
-67-
montant en capital global equivalent de nouvelles debentures (▇▇▇▇▇▇ qu'elles
sont defines dans l'acte de fiducie). Le cas echeant, cet avis de la Banque sera
donne aux porteurs inscrits des debentures de la serie 19 au moins 30 jours et
au plus 60 jours avant la date de conversion, ainsi qu'il est prevu dans l'acte
de fiducie, et ces porteurs auront alors l'option d'effectuer cette conversion
selon les modalites prevues dans l'acte de fiducie. L'option de conversion peut
etre levee par le porteur en remplissant le formulaire de levee de l'option de
conversion qui se trouve au verso de la presente et en livrant et cedant cette
debenture de la serie 19 au fiduciaire ou son mandataire a l'un de leurs bureaux
principaux dans les villes mentionnees ci-apres ou'a tout autre endroit
mentionne dans l'avis de la Banque au plus tard a 16 h (heure de Toronto) a la
date de conversion. La levee de l'option de conversion est irrevocable.
L'acte de fiducie prevoit, entre autres: (a) la decheance du terme de cette
debenture de la serie 19 en cas de defaut (tel que defini dans l'acte de
fiducie) et (b) la tenue d'assemblees des porteurs de debentures et
l'assujettissement de tous les porteurs de debentures a certaines decisions
prises a ces assemblees.
Cette debenture de la serie 19 est transferable aux bureaux principaux du
fiduciaire, ou de son mandataire, a Halifax, Montreal, Toronto, Winnipeg,
▇▇▇▇▇▇, Calgary ou Vancouver, et a tels autres endroits que la Banque pourra
designer de temps a autre avec l'approbation du fiduciaire, et ne peut etre
transferee que par son porteur inscrit ou son fonde de pouvoir dument autorise
par ecrit.
Cette debenture de la serie 19 ne prend effet que lorsqu'elle est attestee
par le fiduciaire ou en son nom.
EN FOI DE QUOI, cette debenture de la serie 19 a ete dument signee et le
sceau de la Banque y a ete appose en date du 14 decembre 1995.
BANQUE DE MONTREAL
Par: et:
-------------------------------- ------------------------------------
President du conseil Secretaire
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(Form of Transfer)
POUR VALEUR RECUE, le soussigne vend, cede et transfere a
-------------------------------------
(Nom du nouveau porteur)
-------------------------------------
(Adresse postale)
la presente debenture de la serie 19 et par les presentes autorise
irrevocablement le fiduciaire et lui ordonne de transferer cette debenture de la
serie 19 dans le registre des porteurs au nom du nouveau porteur designe
ci-dessus.
Le
----------------------------------
Signature attestee par:
------------------------------------- ----------------------------------------
Signature du garant** Signature du porteur inscrit*
* Le signature doit correspondre au nom du porteur inscrit indique sur le
registre des porteurs.
** ▇▇ ▇▇▇▇▇▇ doit etre une banque a charte canadienne, une societe de
fiducie ou un membre d'une bourse reconnue.
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(Form of Trustee's Certificate)
ATTESTATION DU FIDUCIAIRE
La presente debenture est une des debentures de la serie 19 emises par Banque de
Montreal en vertu de l'acte de fiducie mentionne aux presentes.
SOCIETE DE FIDUCIE
BANQUE DE MONTREAL
Fiduciaire
Par:
-----------------------------------
Signataire autorise
(Form of Exercise of Conversion Option)
LEVEE DE L'OPTION DE CONVERSION
Le soussigne, etant le porteur inscrit de cette debenture de la serie 19,
choisit par les presentes de convertir cette debenture de la serie 19 en un
montant en capital global equivalent de nouvelles debentures de Banque de
Montreal a la date de conversion et livre et cede irrevocablement cette
debenture de la serie 19 a Societe de fiducie Banque de Montreal, le fiduciaire,
ou son mandataire, aux fins de conversion.
Le
----------------------------------
Signature attestee par:
------------------------------------- ----------------------------------------
Signature du garant** Signature du porteur inscrit*
* Le signature doit correspondre au nom du porteur inscrit indique Osur le
registre des porteurs.
** ▇▇ ▇▇▇▇▇▇ doit etre une banque a charte canadienne, une societe de fiducie
ou un membre d'une bourse reconnue.
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ARTICLE 16
EXECUTION
SECTION 16.1 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 December 14, 1995.
IN WITNESS WHEREOF the parties hereto have executed these presents under
the hands of their proper officers in that behalf.
BANK OF MONTREAL - BANQUE DE MONTREAL
By (Signed) /s/ Illegible
-------------------------
And (Signed) /s/ Illegible
------------------------
THE TRUST COMPANY OF BANK OF MONTREAL
- SOCIETE DE FIDUCIE BANQUE DE
MONTREAL
By (Signed) /s/ Illegible
-------------------------
And (Signed) /s/ Illegible
------------------------
