DATED AS OF JULY 23, 1986
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BANK OF MONTREAL -- BANQUE DE MONTREAL
AND
THE ROYAL TRUST COMPANY -- COMPAGNIE TRUST
ROYAL
TRUSTEE
TRUST INDENTURE
PROVIDING FOR THE ISSUE OF
DEBENTURES
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TABLE OF CONTENTS
Section Page
Recitals ........................................................... 1
ARTICLE ONE
Interpretation
1.01 Definitions ........................................................ 2
1.02 Meaning of "outstanding" for Certain Purposes ...................... 4
1.03 Interpretation not Affected by Headings, etc ....................... 4
1.04 Applicable Law ..................................................... 5
ARTICLE TWO
Issue of Debentures
2.01 Limit of Issue ..................................................... 5
2.02 Bank Debentures .................................................... 5
2.03 Subordination ...................................................... 6
2.04 Computation of Interest ............................................ 6
2.05 Creation and Issue of Additional Debentures ........................ 7
2.06 Debentures to Rank Pari Passu ...................................... 8
2.07 Signing of Debentures .............................................. 8
2.08 Certification by Trustee ........................................... 9
2.09 Interim Debentures ................................................. 9
2.10 Issue in Substitution for Lost Debentures .......................... 10
ARTICLE THREE
Issue of Series 10 Debentures
3.01 Limit of Issue and Designation ..................................... 10
3.02 Definitions ........................................................ 11
3.03 Forms and Terms .................................................... 15
3.04 Indemnity in Respect of Canadian Withholding Taxes ................. 18
3.05 Determination of Rate of Interest and Calculation of Interest
Amount ............................................................ 19
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Section Page
3.06 Publication of Rate of Interest and Interest Amount ................ 20
3.07 Determination of Rate of Interest and Calculation of Interest
Amount by Trustee ................................................. 20
3.08 Agent Bank and Reference Banks ..................................... 20
3.09 Notice to Series 10 Debentureholders ............................... 21
3.10 Issue of Series 10 Debentures ...................................... 21
ARTICLE FOUR
Registration, Transfer, Exchange and Ownership of Debentures
4.01 Fully Registered Debentures ........................................ 21
4.02 Coupon Debentures .................................................. 22
4.03 Transferee Entitled to Registration ................................ 23
4.04 Exchange of Debentures ............................................. 24
4.05 Charges for Registration, Transfer and Exchange .................... 24
4.06 Register Open for Inspection ....................................... 25
4.07 Limitation on Obligation to Effect Transfers or Exchanges .......... 25
4.08 Ownership of Debentures and Coupons ................................ 25
4.09 Registration, Transfer and Exchange of Series 10 Debentures ........ 26
ARTICLE FIVE
Redemption and Purchase of Debentures
5.01 Redemption ......................................................... 27
5.02 Purchase ........................................................... 27
ARTICLE SIX
Redemption of Series 10 Debentures
6.01 Restriction on Redemption .......................................... 27
6.02 Redemption ......................................................... 27
6.03 Places of Payment .................................................. 27
6.04 Selection for Redemption ........................................... 28
6.05 Notice of Redemption ............................................... 28
6.06 Payment of Redemption Price ........................................ 28
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Section Page
6.07 Cancellation of Series 10 Debentures ............................... 28
ARTICLE SEVEN
Covenants of the Bank
7.01 General Covenants .................................................. 29
7.02 Trustee's Remuneration and Expenses ................................ 30
7.03 Not to Accumulate Interest ......................................... 30
7.04 Restriction on Senior Indebtedness ................................. 31
7.05 Annual Certificate of Compliance ................................... 31
ARTICLE EIGHT
Special Covenants Applicable to Series 10 Debentures
8.01 Changes in Paying Agent ............................................ 31
8.02 Arrangements with the Agent Bank and the Reference Banks ........... 32
8.03 Listing on The Stock Exchange ...................................... 32
ARTICLE NINE
Series 10 Debenture Fund
9.01 Creation of the Fund ............................................... 33
9.02 Deposits into the Fund ............................................. 33
9.03 Covenant to Sell Capital and Deposit Proceeds ...................... 33
9.04 Investment of Amounts in the Fund .................................. 34
9.05 Payment of Series 10 Debentures Prior to Stated Final Maturity
Date .............................................................. 35
9.06 Repayment to the Bank from the Fund ................................ 36
9.07 Payment to the Trustee or Principal Paying Agent from the Fund ..... 36
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Section Page
ARTICLE TEN
Defaults and Enforcement
10.01 Events of Default .................................................. 37
10.02 Other Defaults ..................................................... 37
10.03 Notice of Default by Trustee ....................................... 37
10.04 Acceleration ....................................................... 38
10.05 Covenant of the Bank to Pay to the Trustee the Whole Amount Due
on Debentures Upon Occurrence of an Other Default ................. 38
10.06 Waiver of Default .................................................. 39
10.07 Proceedings by the Trustee ......................................... 39
10.08 Suits by Debentureholders .......................................... 40
10.09 Application of Moneys Received by Trustee .......................... 41
10.10 Distribution of Proceeds ........................................... 42
10.11 Immunity of Shareholders, etc. ..................................... 42
ARTICLE ELEVEN
Satisfaction and Discharge
11.01 Cancellation and Destruction ....................................... 43
11.02 Non-Presentation of Debentures and Coupons ......................... 43
11.03 Repayment of Unclaimed Moneys to Bank .............................. 44
11.04 Release from Covenants ............................................. 44
ARTICLE TWELVE
Successor Banks
12.01 Certain Requirements in Respect of Merger, etc. .................... 45
12.02 Vesting of Powers in Successor ..................................... 46
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Section Page
ARTICLE THIRTEEN
Meetings of Debentureholders
13.01 Right to Convene Meeting ........................................... 46
13.02 Notice ............................................................. 47
13.03 Chairman ........................................................... 47
13.04 Quorum ............................................................. 47
13.05 Power to Adjourn ................................................... 48
13.06 Show of Hands ...................................................... 48
13.07 Poll ............................................................... 48
13.08 Voting ............................................................. 48
13.09 Regulations ........................................................ 49
13.10 Bank and Trustee may be Represented ................................ 50
13.11 Powers Exercisable by Extraordinary Resolution ..................... 50
13.12 Powers Cumulative .................................................. 52
13.13 Meaning of "Extraordinary Resolution" .............................. 52
13.14 Minutes ............................................................ 53
13.15 Instruments in Writing ............................................. 53
13.16 Binding Effect of Resolutions ...................................... 54
13.17 Serial Meetings .................................................... 54
ARTICLE FOURTEEN
Supplemental Indentures
14.01 Execution of Supplemental Indentures ............................... 56
ARTICLE FIFTEEN
Concerning the Trustee
15.01 Trust Indenture Legislation ........................................ 57
15.02 Rights and Duties of Trustee ....................................... 58
15.03 Evidence of Compliance ............................................. 59
15.04 Evidence, Experts and Advisers ..................................... 59
15.05 Documents, Moneys, etc., Held by Trustee ........................... 60
15.06 Action by Trustee to Protect Interests ............................. 61
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Section Page
15.07 Trustee not Required to Give Security .............................. 61
15.08 Protection of Trustee .............................................. 61
15.09 Replacement of Trustee ............................................. 62
15.10 Conflict of Interest ............................................... 62
15.11 Acceptance of Trust ................................................ 63
ARTICLE SIXTEEN
Notices
16.01 Notice to Debentureholders ......................................... 63
16.02 Notice to the Trustee .............................................. 64
16.03 Notice to the Bank ................................................. 64
ARTICLE SEVENTEEN
Forms of Series 10 Debentures
17.01 Form of Temporary Global Debenture ................................. 64
17.02 Form of Coupon Debenture ........................................... 70
17.03 Form of Registered Debenture ....................................... 76
ARTICLE EIGHTEEN
Execution
18.01 Counterparts and Formal Date ....................................... 82
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THIS INDENTURE made as of July 23, 1986.
BETWEEN
BANK OF MONTREAL -- BANQUE DE MONTREAL, a Canadian chartered bank
(hereinafter called the "Bank"),
-- And -- OF THE FIRST PART
THE ROYAL TRUST COMPANY -- COMPAGNIE TRUST ROYAL, a trust company
incorporated under the laws of the Province of Quebec (hereinafter
called the "Trustee"),
OF THE SECOND PART,
WHEREAS under the provisions of the Bank Act, the Bank may borrow money by
the issue of bank debentures in accordance with the provisions of the Bank Act
relating to bank debentures; and
WHEREAS the Bank deems it desirable for its corporate purposes to create
and issue from time to time its Debentures to be constituted in the manner
hereinafter appearing; and
WHEREAS all things necessary have been done and performed to make the
Debentures when certified by the Trustee and issued as in this Trust Indenture
provided valid, binding and legal obligations of the Bank with the benefits and
subject to the terms of the Trust Indenture;
NOW THEREFORE THIS INDENTURE WITNESSETH and it is hereby agreed and
declared as follows:
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ARTICLE ONE
INTERPRETATION
SECTION 1.01. Definitions. In this Trust Indenture, unless there is
something in the subject matter or context inconsistent therewith:
"Bank" means the Party of the First Part and every successor bank which
shall have complied with the provisions of Article Twelve;
"Bank Act" means the Bank Act of Canada, 00 Xxxxxxxxx XX, Xxxxxxx 00,
Xxxxxxxx xx Xxxxxx, 0000, and any Act that may be substituted therefor, as from
time to time amended; and reference to a particular section of the Bank Act
includes reference to a section of similar effect in any such substituted or
amended Act;
"certificate of the Bank" means a written certificate signed in the name
of the Bank by its chairman or its president or a vice-president and its
secretary or another vice-president or an assistant secretary, and may consist
of one or more instruments so executed;
"certified resolution" means a copy of a resolution certified by the
secretary or an assistant secretary of the Bank to have been duty passed by the
directors and to be in full force and effect on the date of such certification;
"counsel" means a barrister or solicitor or firm of barristers and
solicitors retained by the Trustee or retained by the Bank and acceptable to the
Trustee;
"Debentureholders" or "holders" means as regards registered Debentures the
several persons for the time being entered in the registers hereinafter
mentioned as holders thereof and as regards unregistered Debentures the bearers
thereof for the time being;
"Debentures" means the Debentures of the Bank issued and certified
hereunder and for the time being outstanding; "coupon Debentures" means
Debentures which are issued with interest coupons attached; "coupons" means the
interest coupons attached or appertaining to coupon Debentures; "fully
registered Debentures" means Debentures without coupons which are
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registered as to principal and interest as hereinafter provided; "registered
Debentures" means and includes fully registered Debentures and coupon Debentures
registered as to principal only; and "unregistered Debentures" means Debentures
which are not so registered;
"Debentureholders' Request" means an instrument signed in one or more
counterparts by the holder or holders of not less than 10% in principal amount
of the Debentures, or in certain circumstances of any particular series,
outstanding for the time being, requesting the Trustee to take some action or
proceeding specified therein;
"director" means a director of the Bank for the time being, and reference
to action by the directors means action by the directors of the Bank as a board
or, whenever duly empowered, action by the executive committee of the board;
"event of default" has the meaning attributed to it in section 10.01;
"extraordinary resolution" has the meaning attributed to it in Article
Thirteen;
"other defaults" has the meaning attributed to it in section 10.02;
"person" means an individual, a corporation, a partnership, a trustee or
an unincorporated organization; and pronouns have a similarly extended meaning;
"Trust Indenture", "Indenture", "herein", "hereby", "hereof' and similar
expressions mean or refer to this indenture and any indenture, deed or
instrument supplemental or ancillary hereto; and the expressions "Article" and
"section" followed by a number mean and refer to the specified Article or
section of this Trust Indenture;
"Trustee" means the Party of the Second Part and its successors for the
time being in the trusts hereby created;
"written order of the Bank" means a written order signed in the name of
the Bank by its chairman or its president or a vice-president and its secretary
or another vice-president or an assistant secretary; and "written request of the
Bank" has a similar meaning;
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and words importing the singular number include the plural and vice versa and
words importing gender include the masculine, feminine and neuter genders.
SECTION 1.02. Meaning of "outstanding "for Certain Purposes. Every
Debenture certified and delivered by the Trustee hereunder shall be deemed to be
outstanding until it shall be cancelled or delivered to the Trustee for
cancellation or moneys for the payment thereof shall have been set aside under
section 11.02, provided that:
(1) Debentures which have been partially redeemed shall be deemed to be
outstanding only to the extent of the unredeemed part of the principal amount
thereof;
(2) where a new Debenture has been issued in substitution for a Debenture
which has been lost, stolen or destroyed, only one of them shall be counted for
the purpose of determining the aggregate principal amount of Debentures
outstanding; and
(3) for the purpose of any provision of this Trust Indenture entitling
holders of outstanding Debentures to vote, sign consents, requisitions or other
instruments or take any other action under this Trust Indenture, Debentures
owned legally or equitably by the Bank shall be disregarded except that:
(a) for the purpose of determining whether the Trustee shall be
protected in relying on any such vote, consent, requisition, instrument or
other action only the Debentures which the Trustee knows are so owned
shall be so disregarded; and
(b) Debentures so owned which have been pledged in good faith other
than to the Bank shall not be so disregarded if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right to vote
such Debentures in his discretion free from the control of the Bank.
SECTION 1.03. Interpretation not Affected by Headings, etc. The division
of this Trust Indenture into Articles and Sections, the provision of a Table
of Contents and the insertion of headings are for convenience of reference only
and shall not affect the construction or interpretation hereof.
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SECTION 1.04. Applicable Law. This Trust Indenture and the Debentures and
coupons shall be governed by and construed in accordance with the laws of the
Province of Quebec and the laws of Canada applicable therein.
ARTICLE TWO
ISSUE OF DEBENTURES
SECTION 2.01. Limit of Issue. Subject to the provisions of the Bank Act,
the aggregate principal amount of Debentures which may be authorized hereunder
is unlimited, but Debentures may be issued only upon and subject to the
conditions and limitations herein set forth. The Debentures may be issued in
several series as herein provided.
SECTION 2.02. Bank Debentures.
(1) The Debentures are bank debentures as that term is defined in the Bank
Act and accordingly:
(a) the Debentures of any series shall not be redeemed by the Bank
at any time during the period of five years commencing with the date of
issue of such Debentures;
(b) the principal amount of the indebtedness evidenced by the
Debentures of any series shall not be paid by the Bank at any time during
the period of five years commencing with the date of issue of such
Debentures except in the event of the insolvency or winding-up of the
Bank;
(c) the Bank shall not issue Debentures dated more than sixty (60)
days before the date of issue thereof, but this restriction does not apply
to a Debenture issued in exchange for or in replacement of one that has
the same stated maturity and that is not then being redeemed or paid; and
(d) the conversion of the Debentures of any series into shares of
the Bank in accordance with the terms of such Debentures does not
5
constitute a payment of the principal amount of the Debentures within the
meaning of paragraph (b) of subsection (1) of this section 2.02.
(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 2.03. Subordination.
(1) In the event of the insolvency or winding-up of the Bank, the
indebtedness evidenced by the Debentures is subordinate in right of payment to
the prior payment in full of the deposit liabilities of the Bank and all other
liabilities of the Bank except those which by their terms rank in right of
payment equally with or subordinate to the Debentures.
(2) Each holder of Debentures or coupons by his acceptance thereof agrees
to and shall be bound by the subordination provided for in subsection (1) and
authorizes and directs the Trustee on his behalf to take such action, if any, as
may be necessary or appropriate further to assure the same and appoints the
Trustee his agent for such purpose.
SECTION 2.04. Computation of Interest. Unless otherwise provided in
respect of any particular series of Debentures issued hereunder:
(1) Fully registered Debentures issued hereunder, whether originally or
upon exchange or in substitution for previously issued Debentures, shall bear
interest from their respective dates or from the last interest payment date to
which interest shall have been paid or made available for payment on the
outstanding Debentures of the same series and date of maturity, whichever shall
be the later.
(2) The coupons (if any) matured at the date of delivery by the Trustee of
any coupon Debenture shall be detached therefrom and cancelled before delivery,
unless such Debenture is being issued in exchange or in substitution for another
Debenture (whether in interim or definitive form) and such matured coupons
represent unpaid interest to which the holder of such exchanged or substituted
Debenture is entitled.
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(3) Interest for any period of less than one year shall be computed on the
basis of a year of three hundred and sixty-five days, unless otherwise provided
in any indenture establishing the terms of any series of Debentures.
SECTION 2.05. Creation and Issue of Additional Debentures.
(1) The directors may from time to time authorize the creation of one or
more subsequent series of Debentures hereunder. The Debentures of any such
subsequent series (herein sometimes referred to as "additional Debentures") may,
subject to the requirements of the Bank Act, be limited to such aggregate
principal amount, bear such date or dates, mature on such date or dates, bear
such rate or rates of interest, be redeemable at such prices, be entitled to the
benefit of such covenants, sinking or purchase fund provisions, conversion
rights, exchange rights and/or stock purchase rights, be payable at such place
or places in Canadian and/or such other currency or currencies and contain such
other terms or provisions not inconsistent herewith as the directors may
determine.
(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 Fourteen.
(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 requesting certification and delivery of
a specified principal amount of Debentures of such subsequent 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;
7
(c) a written order of the Bank for the certification and delivery
of such Debentures; and
(d) an opinion of counsel 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 or an other default
shall have occurred and be continuing.
SECTION 2.06. Debentures to Rank Pari Passu. In the event of the
insolvency or winding-up of the Bank, all Debentures issued hereunder and all
bank debentures issued or to be issued under an indenture dated as of April 26,
1984, and indenture dated as of February 1, 1978, and a trust agreement dated as
of April 1, 1972 and indentures and agreements supplemental thereto,
respectively, shall rank pari passu without discrimination, preference or
priority whatever may be the actual date or terms of issue of the same
respectively, save only as to sinking or purchase fund provisions (if any)
applicable to different series.
SECTION 2.07. Signing of Debentures. The Debentures shall 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 chairman, the deputy
chairman, the president or a vice-president and by 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.
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SECTION 2.08. 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
Article Seventeen 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 2.09. Interim Debentures. Pending the delivery of definitive
Debentures of any series to the Trustee, the Bank may issue and the Trustee
certify in lieu thereof interim Debentures, with or without coupons, in such
forms and in such denominations and signed in such manner as the Trustee and the
Bank may approve, entitling the holders thereof, upon and subject to the terms
and conditions (if any) set forth herein or in such interim Debentures, to
definitive Debentures of the said series when the same are ready for delivery.
When so issued and certified, such 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 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
the whole subject to any limitations or provisions set forth in such interim
Debentures. Forthwith after the Bank shall have executed and delivered the
definitive Debentures to the Trustee, the Trustee shall, upon and subject to the
terms and conditions (if any) set forth herein or in such interim Debentures,
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) appertaining thereto. No charge shall be made by the Bank or
the Trustee to the holders of
9
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 2.10. Issue in Substitution for Lost Debentures.
(1) In case any of the Debentures issued and certified hereunder or
coupons appertaining thereto shall become mutilated or be lost, destroyed or
stolen, the Bank in its discretion may 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 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.
ARTICLE THREE
ISSUE OF SERIES 10 DEBENTURES
SECTION 3.01. Limit of Issue and Designation. The first series of
Debentures to be issued hereunder is hereby created and authorized to be issued
consisting of and limited to $250,000,000 principal amount in lawful money of
the United States of America and hereby designated "Floating Rate Debentures,
Series 10, Due 1998".
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SECTION 3.02. Definitions. When used in the context of Series 10
Debentures, unless there is something in the subject matter or context
inconsistent therewith:
"Agent Bank" means the principal office in London of Xxxxxx Guaranty Trust
Company of New York and its successors and assigns;
"Agent Bank Agreement" means the agreement between the Bank and the Agent
Bank appointing the Agent Bank and defining its duties and obligations as such;
"business day" means a day on which banks are open for business in both
London and New York City;
"Capital" means common shares or perpetual preferred shares or other
equity securities of the Bank;
"common share" means a common share of the Bank without par value as the
same exists at the date of this Indenture or as such share is constituted from
time to time;
"Euro-clear" means Xxxxxx Guaranty Trust Company of New York, Brussels
office, or its successor, as operator of the Euro-clear System;
"Eurodollar deposits" means deposits of lawful money of the United States
of America;
"Exchange Agent" means the London (England) office of the Trustee;
"Exchange Date" means the date which is 90 days after the certification by
Xxxxxx Guaranty Ltd to the Bank, the Trustee, Euro-clear and CEDEL S.A. of the
completion of the distribution of the Series 10 Debentures;
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System of the United States of America or any successor United States
governmental agency or instrumentality performing substantially the same
regulatory function as the said Board of Governors performs at the date of
execution of this Indenture;
11
"Floating Rate Debentures, Series 10, Due 1998", "Series 10 Floating Rate
Debentures" and "Series 10 Debentures" mean the U.S. $250,000,000 aggregate
principal amount of Floating Rate Debentures, Series 10, Due 1998 referred to in
section 3.01 hereof, including Debentures issued in substitution for any such
Debentures; and "coupons" means the interest coupons attached or appertaining to
the Series 10 Debentures;
"Fund" means the fund created pursuant to the provisions of section 9.01;
"Interest Amount" means the amount of interest for any Interest Period
payable on the presentation and surrender of the relevant coupon in respect of a
coupon Series 10 Debenture, and payable in respect of each U.S. $10,000 in
principal amount of registered Series 10 Debentures, as determined by the Agent
Bank, and shall be calculated by applying the Rate of Interest to the principal
amount of U.S. $10,000, multiplying such sum by the actual number of days in the
Interest Period concerned divided by 360 and rounding the resultant figure to
the nearest cent (half a cent being rounded upwards);
"Interest Determination Date" means the second business day prior to the
commencement of each Interest Period;
"Interest Payment Date" means, save as mentioned below, the date falling
six calendar months after the date the Series 10 Debentures are initially issued
and thereafter each date which falls six calendar months after the preceding
Interest Payment Date. If any Interest Payment Date would otherwise fall on a
day which is not a business day it shall be postponed to the next business day
unless it would thereby fall in the next calendar month. In the latter event
the Interest Payment Date shall be the immediately preceding business day and
each subsequent Interest Payment Date shall be the last business day of the
sixth calendar month after the calendar month in which the preceding Interest
Payment Date shall have fallen;
"Interest Period" means the period between the date the Series 10
Debentures are initially issued and the first Interest Payment Date and each
period thereafter between successive Interest Payment Dates;
"perpetual preferred share" means a share of any class or series of
preferred shares of the Bank now existing or hereafter authorized, provided that
such class or series is not mandatorily redeemable in accordance with its
12
terms otherwise than with the proceeds of the sale of common shares or of
perpetual preferred shares;
"Principal Paying Agent" means the main office of Bank of Montreal in
London, England;
"other equity securities" means any class or series of Capital of the
Bank, any warrant, right or option to purchase any such class or series of
Capital or any security convertible into or redeemable in shares of (of with the
proceeds of the sale of) any such class or series of Capital, if amounts
representing the net proceeds of the sale thereof would, when deposited in the
Fund, be considered sufficient by the Federal Reserve Board for purposes of
satisfying the obligation of the Bank to make deposits in the Fund in order to
preserve the treatment of such amounts and of the indebtedness represented by
the Series 10 Debentures (in excess of amounts in the Fund) as "primary
capital" of the Bank for United States bank regulatory purposes;
"Qualifying Investment" means (i) any debt security of or guaranteed by
the United States of America or any agency thereof, (ii) any debt security
(including any security of the Bank or any subsidiary of the Bank) which at the
time is rated in any of the three highest categories (including any subdivision
thereof) by any securities rating agency nationally recognized in the United
States of America and (iii) time deposits with, including certificates of
deposit issued by, any bank or trust company (including the Bank or any
subsidiary of the Bank), any debt security of which (or any debt security of the
parent of which) is at the time rated in any of the three highest categories
(including any subdivision thereof) by any securities rating agency nationally
recognized in the United States, provided, in each case, that such security or
deposit matures on or before the Interest Payment Date in July 1998;
"Rate of Interest" means the rate of interest from time to time payable in
respect of the Series 10 Debentures and shall be determined by the Agent Bank on
the basis of the following provisions:
(i) On the Interest Determination Date in respect of each Interest
Period, the Agent Bank will request the principal London office of each
of the Reference Banks to provide the Agent Bank with its offered
quotation to leading banks for Eurodollar deposits in London for the
Interest Period concerned as at 11.00 a.m. (London time) on the Interest
13
Determination Date in question. The Rate of Interest for such Interest
Period shall be 0.05 percent per annum above the arithmetic mean (rounded
upwards if necessary to the nearest 1/16 percent) of the offered
quotation of each Reference Bank, as determined by the Agent Bank.
(ii) If on any Interest Determination Date two or three only of the
Reference Banks provide the Agent Bank with such offered quotations, the
Rate of Interest for the relevant Interest Period shall be determined in
accordance with (i) above on the basis of the offered quotations of those
Reference Banks providing such quotations.
(iii) If on any Interest Determination Date one only or none of the
Reference Banks provides the Agent Bank with such offered quotation, the
Rate of Interest for the relevant Interest Period shall be the Reserve
Interest Rate.
The "Reserve Interest Rate" shall be the rate per annum which the Agent
Bank determines to be either (1) 0.05 percent per annum above the
arithmetic mean (rounded upwards if necessary to the nearest 1/16
percent) of the United States dollar lending rates which leading New York
City banks selected by the Agent Bank are quoting, on the relevant
Interest Determination Date, for the next Interest Period, to the
Reference Banks or those of them (being at least two in number) to which
such quotations are, in the opinion of the Agent Bank, being so made, or
(2) in the event that the Agent Bank can determine no such arithmetic
mean, 0.05 percent per annum above the lowest United States dollar lending
rate which leading New York City banks selected by the Agent Bank are
quoting on such Interest Determination Date to leading European banks for
the next Interest Period, or (3) if the banks selected as aforesaid by the
Agent Bank are not quoting as mentioned above, the Rate of Interest in
effect for the Interest Period to which (i) or (ii) above shall have
applied which last preceded the relevant Interest Period.
(iv) The yearly rate of interest to which the Rate of Interest is
equivalent is:
14
100 [(1+ CD/360) 365/D -1]
C = Rate of Interest for the Interest Period expressed as a percentage.
D = Number of days in the Interest Period.
"Reference Banks" means the principal offices in London (England) of
Lloyds Bank PLC, The Chase Manhattan Bank, N.A., The Bank of Tokyo, Ltd. and
Union Bank of Switzerland and their respective successors and assigns;
"Tax Indemnity" has the meaning attributed thereto in subsection 3.04(2)
hereof;
"Temporary Global Debenture" means the interim global Series 10 Debenture
set forth in section 17.01;
"The Stock Exchange" means The Stock Exchange of the United Kingdom and
the Republic of Ireland;
"U.S.$" or "U.S. dollars" or "U.S. funds" or "United States dollars" or
"lawful money of the United States of America" or "lawful money of the United
States" means coin or currency of the United States of America which at the time
of payment is legal tender for the payment of private and public debts in the
United States of America.
SECTION 3.03. Forms and Terms.
(1) The Series 10 Debentures shall be issuable as coupon Debentures in
bearer form in the denominations of U.S. $10,000 and U.S. $250,000 ("coupon
Series 10 Debentures") and as fully registered Debentures in the denomination of
U.S. $10,000 and integral multiples thereof ("registered Series 10 Debentures");
shall be substantially in one of the forms set out in Article Seventeen hereof
with such appropriate insertions, omissions, substitutions and variations and
such distinguishing letters and numbers as the Trustee may-approve.
15
(2) The coupon Series 10 Debentures shall be dated as of July 23, 1986.
The registered Series 10 Debentures shall be dated:-
(i) in the case of a registered Series 10 Debenture issued on
exchange of all or part of the Temporary Global Debenture, July 23, 1986;
(ii) in the case of a registered Series 10 Debenture issued in
exchange for a coupon Series 10 Debenture or Debentures, or upon transfer, with
the date of registration of such exchange or transfer in the register kept
pursuant to section 4.01 hereof;
(iii) in the case of a registered Series 10 Debenture issued to the
transferor upon transfer in part of a registered Series 10 Debenture, with the
same date as the date of the Series 10 Debenture transferred; or
(iv) in the case of a registered Series 10 Debenture issued pursuant
to section 2.10 hereof, with the same date as the date of the lost, stolen,
mutilated, defaced or destroyed registered Series 10 Debenture in replacement of
which it is issued.
The Series 10 Debentures shall mature on the Interest Payment Date in July
1998; shall entitle the holders thereof to Tax Indemnity in accordance with the
provisions of section 3.04 hereof; and shall be redeemable as provided in
Article Six hereof.
(3) (i) Coupon Series 10 Debentures shall bear interest from July
23, 1986 or from such other date on which the Series 10 Debentures are initially
issued hereunder, whichever is the later;
(ii) Registered Series 10 Debentures, whether initially issued or
issued upon exchange or in substitution for previously issued Series 10
Debentures, shall bear interest from July 23, 1986, or from such other date on
which the Series 10 Debentures are initially issued hereunder, or from the last
Interest Payment Date to which interest shall have been paid or made available
for payment on the outstanding Series 10 Debentures, whichever is the latest;
and shall be payable twice yearly in arrears on the Interest Payment Dates in
January and July in each year at the Rate of Interest for each interest Period,
with overdue interest, if any, to bear interest at the Rate of Interest
applicable
16
during the period of default. Interest will be calculated on the basis of the
actual number of days elapsed divided by 360.
(4) The payment of the principal of, Tax Indemnity, if any, and interest
on the coupon Series 10 Debentures will be made in lawful money of the United
States of America against surrender of the coupon Series 10 Debentures or, as
the case may be, the appropriate coupon or coupons appertaining thereto, at the
specified offices of any of the paying agents outside of the United States as
the Bank shall from time to time appoint pursuant to subsection 3 .03(8) and
may, at the holder's option and subject to applicable laws and regulations, be
made by cheque or bank draft in United States dollars drawn on, or by transfer
to a United States dollar account maintained by the holder with, a bank in New
York City. In the event that the full amount of the coupon Series 10 Debentures
and interest coupons appertaining thereto may not be so paid because such
payments would be illegal or effectively precluded due to the imposition of
exchange controls or other similar restrictions on the full payment or receipt
of principal or interest in United States dollars, then the Bank shall
designate a paying agent in New York City from which such payments may be made.
(5) The payment of Tax Indemnity, if any, and interest on registered
Series 10 Debentures will be made in lawful money of the United States of
America to the holder by cheque or bank draft in United States dollars drawn on
a bank in New York City mailed to the holder at such holder's registered
address, or, at the holder's option, by transfer to a United States dollar
account maintained by the holder with a bank in New York City.
(6) The payment of the principal of registered Series 10 Debentures will
be made at the specified offices of any of the paying agents in New York City,
Montreal or any additional paying agents designated therefor, and will be made
by cheque or bank draft in United States dollars drawn on, or by transfer to a
United States dollar account maintained by the holder with, a bank in New York
City.
(7) In the case of any payment of principal, the Series 10 Debentures must
be surrendered for payment together with all unmatured coupons, if any,
appertaining thereto. Upon the date on which any Series 10 Debenture becomes
due and payable, interest thereon shall cease to accrue and all
17
unmatured coupons (if any) appertaining thereto (whether or not attached) shall
become void and no payment shall be made in respect thereof unless, upon due
presentation of such Series 10 Debenture for payment, payment of principal is
improperly withheld or refused.
(8) Subject to the provisions of section 8.01, the Bank shall have the
right to appoint paying agents in respect of the Series 10 Debentures and to
terminate the appointment of any such paying agent, provided, however, that so
long as any Series 10 Debentures are outstanding the Bank will maintain a paying
agent having a specified office in New York City and a paying agent having a
specified office in London. The paying agents initially appointed by the Bank,
as aforesaid, are the main office of Bank of Montreal in London as the Principal
Paying Agent, Bank of Montreal Trust Company in New York City (for registered
Series 10 Debentures only), Bank of Montreal in Montreal, Xxxxxx Guaranty Trust
Company of New York in Brussels, Union de Banques Suisses (Luxembourg) S.A. in
Luxembourg and Union Bank of Switzerland in Zurich.
SECTION 3.04. Indemnity in Respect of Canadian Withholding Taxes.
(1) The Bank shall make all payments of principal of and interest
(including interest on amounts in default) on, the Series 10 Debentures without
withholding of or deduction for or on account of any present or future taxes,
duties, assessments or governmental charges of whatsoever nature imposed or
levied by or on behalf of the Government of Canada or any province or any other
political subdivision thereof, or any authority or agency therein or thereof
having power to tax unless such taxes, duties, assessments or government charges
are required by law to be withheld or deducted.
(2) If the Bank is required to withhold or deduct any amount from the
principal of or interest (including interest on amounts in default) on the
Series 10 Debentures on account of any taxes mentioned in subsection 3.04(1),
the Bank shall, notwithstanding subsection 7.01(1) but subject to its right to
redeem all the Series 10 Debentures as provided in Article Six hereof, pay such
additional amounts as will result in the payment to the holders of the Series 10
Debentures or the coupons appertaining thereto of the amount which would
otherwise have been payable to them in respect of such Series 10 Debentures or
coupons (which additional amount is herein called "Tax Indemnity");
18
provided, however, that no Tax Indemnity shall be payable with respect to any
Series 10 Debenture or coupon:
(a) to a holder who is liable to tax thereon by reason of his being
connected with Canada otherwise than merely by the holding or ownership of
such Series 10 Debenture or coupon, or
(b) which is presented for payment more than 15 days after the
Relevant Date, except to the extent that the holder thereof would have
been entitled to Tax Indemnity on presenting the same for payment within
such period of 15 days.
For the purposes of this subsection 3.04(2), the "Relevant Date"
means the later of:
(i) the date on which the payment in respect of such Series 10
Debenture or coupon first becomes due and payable, and
(ii) if the full amount of the moneys payable on such date has
not been received prior to such date by the Principal Paying Agent
in London or by the Trustee, the date on which notice is duly given
to the holders of Series 10 Debentures that such moneys have been so
received.
(3) Wherever in this Trust Indenture there is mention, in any context, of
payment of principal and/or interest (including interest on amounts in default)
of, on or in respect of the Series 10 Debentures, such mention shall be deemed
to include mention of the payment of Tax Indemnity to the extent that, in such
context, Tax Indemnity is, was or would be payable pursuant to the provisions of
subsection 3.04(2), and express mention of Tax Indemnity (if applicable) in any
provisions hereof shall not be construed as excluding. Tax Indemnity in those
provisions hereof where such express mention is not made.
SECTION 3.05. Determination of Rate of Interest and Calculation of
Interest Amount. The Agent Bank Agreement shall provide that the Agent Bank
will, on or as soon as practicable after each Interest Determination Date,
determine the Rate of Interest and calculate the Interest Amount for the
relevant Interest Period. The Rate of Interest and the Interest Amount as
19
determined and calculated by the Agent Bank shall, in the absence of manifest
error, be final and binding.
SECTION 3.06. Publication of Rate of Interest and Interest Amount.
The Agent Bank Agreement shall provide that the Agent Bank will cause the Rate
of Interest and the Interest Amount for each Interest Period and the relevant
Interest Payment Date to be notified to The Stock Exchange and will use its best
endeavours to cause the same to be published in accordance with the provisions
of section 3.09 hereof as soon as possible but not later than two business days
after the date of commencement of the relevant Interest Period. The Interest
Amount and the Interest Payment Date so published may subsequently be amended
(or appropriate alternative arrangements made by way of adjustment) without
notice in the event of an extension or shortening of the Interest Period.
SECTION 3.07. Determination of Rate of Interest and Calculation of
Interest Amount by Trustee. If the Agent Bank does not at any material time for
any reason determine the Rate of Interest and calculate the Interest Amount, the
Trustee shall:
(i) determine the Rate of Interest at such rate as, in its absolute
discretion, it shall deem fair and reasonable in all the circumstances;
(ii) calculate the Interest Amount: and
(iii) cause the Rate of Interest and the Interest Amount so
determined and so calculated by it for such Interest Period and the
relevant Interest Payment Date to be notified to The Stock Exchange and
published as described in section 3.06 hereof.
In determining the Rate of Interest and calculating the Interest Amount,
the Trustee shall have regard to the procedures described in section 3.02
hereof and the Rate of Interest and Interest Amount so determined and so
calculated by it shall be deemed to be a determination and a calculation by the
Agent Bank.
SECTION 3.08. Agent Bank and Reference Banks. So long as any of the Series
10 Debentures remains outstanding, the Bank shall at all times have an Agent
Bank and four Reference Banks for the purpose of determining the
20
Rate of Interest on the Series 10 Debentures. The Reference Banks initially
appointed by the Bank shall be the principal London offices of Lloyds Bank PLC,
The Chase Manhattan Bank, N.A., The Bank of Tokyo, Ltd. and Union Bank of
Switzerland and the Agent Bank initially appointed by the Bank shall be the
London office of Xxxxxx Guaranty Trust Company of New York. In the event of the
principal London office of any such bank being unable or unwilling to continue
to act as a Reference Bank or of Xxxxxx Guaranty Trust Company of New York being
unable or unwilling to continue to act as Agent Bank, the Bank shall appoint
such other bank as may be approved by the Trustee to act as such in its place.
The Agent Bank Agreement shall provide that the Agent Bank may not resign its
duties without a successor having been appointed as aforesaid.
SECTION 3.09. Notice to Series 10 Debentureholders. Notwithstanding the
provisions of Article Sixteen, but subject to the provisions of section 6.05
and subsection 8.01(b), any notice to be given hereunder to Series 10
Debentureholders shall be deemed to be validly given if such notice is published
once in the English language in one leading London (England) daily newspaper
approved by the Trustee or, if such publication is not possible, in one other
leading English language daily newspaper of general circulation in Europe
approved by the Trustee.
SECTION 3.10. Issue of Series 10 Debentures. The Series 10 Debentures, in
interim or definitive form, to the aggregate principal amount of U.S.
$250,000,000, may forthwith be executed by the Bank and certified by or on
behalf of the Trustee and delivered by it to or upon the written order of the
Bank, without the Trustee receiving any consideration therefor.
ARTICLE FOUR
REGISTRATION, TRANSFER, EXCHANGE AND
OWNERSHIP OF DEBENTURES
SECTION 4.01. Fully Registered Debentures.
(1) With respect to each series of Debentures issuable as fully registered
Debentures, unless otherwise provided in the indenture establishing
21
the terms thereof or in the Debentures of a particular series, the Bank shall
cause to be kept by and at the principal office of the Trustee in the City of
Montreal or at such other place as the Bank, with the approval of the Trustee,
may determine a register in which shall be entered the names and addresses of
the holders of fully registered Debentures of such series and particulars of the
Debentures held by them respectively. Unless otherwise provided as aforesaid,
the Bank shall also, with respect to each series of Debentures issuable as fully
registered Debentures, cause to be provided by and at such principal office of
the Trustee facilities for the exchange and transfer of fully registered
Debentures, and by and at the principal offices of the Trustee in each of the
cities of Montreal, Toronto, Halifax, Winnipeg, Calgary and Vancouver facilities
for the registration, exchange and transfer of fully registered Debentures. The
Bank may from time to time provide additional facilities for such registration,
exchange and transfer at other offices of the Trustee or at other agencies.
(2) No transfer of a fully registered Debenture shall be valid unless made
at one of such offices or other agencies by the registered holder or his
executors, administrators or other legal representatives or his or their
attorney duly appointed by an instrument in writing in form and execution
satisfactory to the Trustee or other agent and upon compliance with such
reasonable requirements as the Trustee may prescribe, nor unless the name of the
transferee shall have been noted on the Debenture by the Trustee or other agent.
SECTION 4.02. Coupon Debentures.
(1) Coupon Debentures issued hereunder shall be negotiable and title
thereto shall pass by delivery unless registered as to principal for the time
being as hereinafter provided. Notwithstanding registration of coupon Debentures
as to principal, the coupons when detached shall continue to be payable to
bearer and title thereto shall pass by delivery.
(2) With respect to each series of Debentures issuable as coupon
Debentures registrable as to principal only, unless otherwise provided in the
indenture establishing the terms thereof, the Bank shall cause to be kept by and
at the principal office of the Trustee in the City of Montreal or at such other
place as the Bank, with the approval of the Trustee, may determine a
22
register in which holders of coupon Debentures of such series may register the
same as to principal only and in which shall be entered the names and addresses
of the holders of coupon Debentures of such series registered as to principal
and particulars of the coupon Debentures so registered held by them
respectively. Unless otherwise provided as aforesaid, the Bank shall also, with
respect to each series of Debentures issuable as coupon Debentures registrable
as to principal only, cause to be provided by and at such principal office of
the Trustee facilities for the exchange and transfer of such registered
Debentures, and by and at the principal offices of the Trustee in each of the
cities of Montreal, Toronto, Halifax, Winnipeg, Calgary and Vancouver facilities
for the registration, exchange and transfer of coupon Debentures registrable as
to principal only. The Bank may from time to time provide additional facilities
for such registration, exchange and transfer at other offices of the Trustee or
at other agencies. Such registration shall be noted on the Debentures by the
..Trustee or other agent.
(3) After such registration of a coupon Debenture no transfer thereof
shall .be valid unless made at one of such offices or other agencies by the
registered holder or his executors, administrators or other legal
representatives or his or their attorney duly appointed by an instrument in
writing in form and execution satisfactory to the Trustee or other agent upon
compliance with such reasonable requirements as the Trustee may prescribe, nor
unless such transfer shall have been noted on the Debenture by the Trustee or
other agent; but any such Debenture may be discharged from registry by being
transferred to bearer, after which it shall again be transferable by delivery,
but may again from time to time be registered and discharged from registry.
SECTION 4.03. Transferee Entitled to Registration. The transferee of a
registered Debenture shall, after the appropriate form of transfer is lodged
with the Trustee or other agent and upon compliance with all other conditions in
that behalf required by this Trust Indenture or by law, be entitled to be
entered on the register as the owner of such Debenture free from all equities or
rights of set-off or counterclaim between the Bank and his transferor or any
previous holder of such Debenture, save in respect of equities of which the Bank
is required to take notice by statute or by order of a court of competent
jurisdiction.
23
SECTION 4.04. Exchange of Debentures.
(1) Debentures in any authorized form or denomination may be exchanged
upon reasonable notice for Debentures in any other authorized form or
denomination of the same series and date of maturity, bearing the same interest
rate and of the same aggregate principal amount as the Debentures so exchanged.
(2) Debentures of any series may be exchanged only at the principal office
of the Trustee in the City of Montreal or at such other place or places (if any)
as may. be specified in the indenture establishing the terms thereof or in the
Debentures of such series and at such other place or places (if any) as may from
time to time be designated by the Bank with the approval of the Trustee. Any
Debentures tendered for exchange shall be surrendered to the Trustee together
with all unmatured coupons (if any) and all matured coupons in default (if any)
appertaining thereto. The Bank shall execute and the Trustee shall certify all
Debentures necessary to carry out exchanges as aforesaid. All Debentures and
coupons surrendered for exchange shall be cancelled.
SECTION 4.05. Charges for Registration, Transfer and Exchange.
(1) Unless otherwise provided in any indenture, for each Debenture
exchanged, registered, transferred or discharged from registration the Trustee
or other agent shall, if required by the Bank, make a reasonable charge for its
services and for each new Debenture issued (if any); provided that no charge to
a Debentureholder shall be made hereunder: (a) for any exchange, registration,
transfer or discharge from registration of any Debenture applied for within the
period of two months from and including the date of such Debenture; or (b) for
any exchange of any Debenture which has been issued under section 2.09.
(2) Payment of any such charges and reimbursement of the Trustee or other
agent or the Bank for any transfer taxes or governmental or other charges
required to be paid shall be made by the party requesting such exchange,
registration, transfer or discharge from registration as a condition precedent
thereto.
24
SECTION 4.06. Register Open for Inspection. The register referred to in
this Trust Indenture shall be open for inspection during normal business hours
by the Bank, the Trustee or any Debentureholder.
SECTION 4.07. Limitation on Obligation to Effect Transfers or Exchanges.
Neither the Bank nor the Trustee nor any other agent shall be required (a) to
make transfers or exchanges of fully registered Debentures of any series on any
interest payment date for Debentures of that series or during the twenty-one
(21) preceding days, or (b) to make exchanges of Debentures of any series on the
day of any selection by the Trustee of Debentures of that series to be redeemed
or during the fifteen (15) preceding days.
SECTION 4.08. Ownership of Debentures and Coupons.
(1) The person in whose name any registered Debenture is registered shall
for all the purposes of this Trust Indenture be and be deemed to be the owner
thereof and payment of or on account of the principal of and premium (if any) on
such Debenture and, in the case of a fully registered Debenture, interest
thereon shall be made only to or upon the order in writing of such registered
holder.
(2) The Bank and the Trustee may deem and treat the bearer of any
unregistered Debenture and the bearer of any coupon, whether or not the
Debenture from which it has been detached shall be registered as to principal,
as the absolute owner of such Debenture or coupon, as the case may be, for all
purposes and neither the Bank nor the Trustee nor any other agent shall be
affected by any notice to the contrary.
(3) Neither the Bank nor the Trustee nor any other agent shall be bound to
take notice of or see to the execution of any trust, whether express, implied or
constructive, in respect of any Debenture and may transfer the same on the
direction of the person registered as the holder thereof, whether named as
trustee or otherwise, as though that person were the beneficial owner thereof.
(4) The registered holder for the time being of any registered Debenture
and the bearer of any unregistered Debenture and the bearer of any coupon shall
be entitled to the principal, premium (if any) and/or interest evidenced by such
instruments respectively free from all equities or rights of set-off or
25
counter claim between the Bank and the original or any intermediate holder
thereof and all persons may act accordingly and the receipt of any such
registered holder or bearer, as the case may be, for any such principal, premium
or interest shall be a good discharge to the Bank and the Trustee for the same
and neither the Bank nor the Trustee shall be bound to inquire into the title of
any such registered holder or bearer.
(5) Upon receipt of a certificate of any bank, trust company or other
depositary satisfactory to the Trustee stating that the unregistered Debentures
specified therein have been deposited by a named person with such bank, trust
company or other depositary and will remain so deposited until the expiry of the
period specified therein, the Bank and the Trustee may treat the person so named
as the owner, and such certificate as sufficient evidence of the ownership by
such person during such period, of such Debentures, for the purpose of any
Debentureholders' Request, requisition, direction, consent, instrument or other
document to be made, signed or given by the holder of the Debentures so
deposited. The Bank and the Trustee may treat the registered holder of any
Debenture as the owner thereof without actual production of such Debenture for
the purpose of any Debentureholders' Request, requisition, direction, consent,
instrument or other document as aforesaid.
SECTION 4.09. Registration, Transfer and Exchange of Series 10 Debentures.
Registration, transfer or exchange of Series 10 Debentures may, in addition to
the principal office of the Trustee in the City of Montreal, be effected only
at the principal office of Bank of Montreal Trust Company in New York City and
the Bank and the Trustee shall cause to be kept at such principal office
facilities for those purposes.
Notwithstanding any provision herein, neither the Bank nor the Trustee
will be required to make an exchange of coupon Series 10 Debentures for
registered Series 10 Debentures or registered Series 10 Debentures for coupon
Series 10 Debentures if as a result thereof it would incur adverse consequences
under United States tax law.
26
ARTICLE FIVE
REDEMPTION AND PURCHASE OF DEBENTURES
SECTION 5.01. Redemption. The Bank shall have the right at its option to
redeem either in whole at any time or in part from time to time prior to
maturity Debentures issued hereunder of any series which by their terms are made
so redeemable, subject, however, to any applicable law restricting the
redemption of Debentures of such series, at such rates of premium, if any, and
subject to such conditions, as shall be expressed in the indenture authorizing
or providing for the issue thereof.
SECTION 5.02. Purchase. The Bank shall have the right at its option to
purchase Debentures issued hereunder of any series (other than the Series 10
Debentures) in the market or by private contract, subject, however, to any
applicable law restricting the purchase of Debentures of such series and
subject to such conditions as shall be expressed in the indenture authorizing or
providing for the issue thereof.
ARTICLE SIX
REDEMPTION OF SERIES 10 DEBENTURES
SECTION 6.01. Restriction on Redemption. The Bank shall not redeem Series
10 Debentures for any purpose at any time on or before the Interest Payment Date
in July 1991.
SECTION 6.02. Redemption. After the Interest Payment Date in July 1991 the
Series 10 Debentures may be redeemed at the option of the Bank in whole or in
part on any Interest Payment Date at a price equal to the principal amount
thereof together with interest accrued to the date fixed for redemption plus Tax
Indemnity, if applicable.
SECTION 6.03. Places of Payment. The redemption price shall be payable
upon presentation and surrender of the Series 10 Debentures to be redeemed at
any of the places where the principal of such Series 10 Debentures
27
is expressed to be payable and at such other places (if any) as may be specified
in the notice of redemption.
SECTION 6.04. Selection for Redemption. If less than all the Series 10
Debentures are to be redeemed at any one time, the Trustee shall select the
Series 10 Debentures to be redeemed by lot in such manner (which may include
random selection by electronic computer) as the Trustee shall deem equitable.
SECTION 6.05. Notice of Redemption. Notice of redemption of not less than
thirty (30) days nor more than sixty (60) days prior to the date fixed for
redemption shall be given: (i) to the holders of coupon Series 10 Debentures in
the manner provided in section 3.09 hereof, and (ii) to the holders of
registered Series 10 Debentures in the manner provided in section 16.01. Such
notice shall specify the redemption date, the redemption price, the serial
numbers of the Series 10 Debentures drawn for redemption, in the case of a
partial redemption and the places of payment and shall state that interest upon
the principal amount of Series 10 Debentures shall cease to be payable from and
after the redemption date.
SECTION 6.06. Payment of Redemption Price. Upon notice being given as
aforesaid, the principal amount of the Series 10 Debentures outstanding shall be
and become due and payable at the redemption price, on the redemption date
specified in such notice and with the same effect as if it were the date of
maturity, and from and after such redemption date interest upon the principal
amounts so becoming due and payable shall cease unless payment of the
redemption price shall not be made on presentation and surrender of the Series
10 Debentures and all unmatured coupons, if any, appertaining thereto at any of
the places specified in subsection 3.03(8) hereof or specified in the notice of
redemption, on or after the redemption date and prior to the setting aside of
the redemption price pursuant to Article Eleven hereof.
SECTION 6.07. Cancellation of Series 10 Debentures. All Series 10
Debentures redeemed by the Bank under the provisions of this Article shall be
forthwith delivered to and cancelled by the Principal Paying Agent or the
Trustee and shall not be reissued.
28
ARTICLE SEVEN
COVENANTS OF THE BANK
SECTION 7.01. General Covenants. The Bank covenants with the Trustee that
so long as any Debentures remain outstanding:
(1) It will duly and punctually pay or cause to be paid to every holder of
Debentures issued hereunder the principal thereof, premium (if any) and interest
accrued thereon (including, in case of default, interest on all amounts overdue
at the rate specified therein) at the dates and places, in the currencies and in
the manner mentioned herein and in such Debentures and in the coupons, if any,
appertaining thereto. As interest becomes due on each fully registered Debenture
(except at maturity or on redemption, when interest may at the option of the
Bank be paid upon surrender of such Debenture for payment) the Bank, either
directly or through the Trustee, shall send by prepaid ordinary mail a cheque
for such interest (less any tax required to be withheld therefrom) payable to
the order of the then registered holder of such Debenture and addressed to him
at his last address appearing on the register, unless such holder otherwise
directs. In the case of joint holders the cheque shall be made payable to the
order of all such joint holders and addressed to them at the last address
appearing on the register, unless such joint holders otherwise direct. If more
than one address appears on the register in respect of such joint holding the
cheque shall be mailed to the first address so appearing. The mailing of such
cheque shall, to the extent of the sum represented thereby plus the amount of
any tax withheld as aforesaid, satisfy and discharge the liability for interest
on such Debenture, unless such cheque be not paid at par on presentation at one
of the places where such interest is, by the terms of such Debenture, made
payable. In the event of non-receipt of any cheque for interest by the person to
whom it is sent as aforesaid, the Bank will issue to such person a replacement
cheque for a like amount upon being furnished with such evidence of non-receipt
as it shall reasonably require and upon being indemnified to its satisfaction.
(2) Except as herein otherwise expressly provided, it will at all times
maintain its corporate existence and will itself carry on and conduct its
business
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in a proper, efficient and businesslike manner and in accordance with good
business practice.
(3) It will keep proper books of account in accordance with generally
accepted accounting practice and will, if and whenever it is so required in
writing by the Trustee, file with the Trustee a copy of each annual and other
periodic report of the Bank furnished to its shareholders after the date hereof.
SECTION 7.02. Trustee's Remuneration and Expenses. The Bank covenants that
it will pay to the Trustee from time to time reasonable remuneration for its
services hereunder and will pay or reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by the
Trustee in the administration or execution of the trusts hereby created
(including the reasonable compensation and the disbursements of its counsel and
all other advisers and assistants not regularly in its employ), both before and
after default hereunder and thereafter until all duties of the Trustee under the
trusts hereof shall be finally and fully performed, except any such expense,
disbursement or advance as may arise from its negligence or wilful default. Any
amount due under this section and unpaid thirty days after request for such
payment shall bear interest at the rate of 10% per annum from the expiration of
such thirty days. After default all amounts so payable and the interest thereon
shall be payable out of any funds coming into the possession of a the Trustee or
its successors in the trusts hereunder in priority to any payment of the
principal of or interest or premium on the Debentures.
SECTION 7.03. Not to Accumulate Interest. In order to prevent any
accumulation after maturity of coupons or interest the Bank covenants with the
Trustee that it will not, except with the approval of the Debentureholders
expressed by extraordinary resolution, directly or indirectly extend or assent
to the extension of time for payment of any coupons or interest payable
hereunder or be a party to or approve any such arrangement by purchasing or
funding any of said coupons or interest or in any other manner. In case the time
for payment of any such coupons or interest shall be so extended, whether for a
definite period or otherwise, such coupons or interest shall not be entitled in
case of default hereunder to the benefit of these presents except subject to the
prior payment in full of the principal of and premium (if any) on all Debentures
then outstanding and of all matured coupons and interest on such
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Debentures the payment of which has not been so extended, and of all other
moneys payable hereunder.
SECTION 7.04. Restriction on Senior Indebtedness. The Bank hereby
covenants with the Trustee that so long as any Debentures remain outstanding the
Bank will not create, issue, incur or reclassify any indebtedness subordinate in
right of payment to the deposit liabilities of the Bank which, in the event of
the insolvency or winding-up of the Bank, would rank in right of payment in
priority to the Debentures.
SECTION 7.05. Annual Certificate of Compliance. Within ninety (90) days
after the end of each fiscal year of the Bank, and at any other time if
requested by the Trustee, the Bank shall furnish the Trustee with a certificate
of an officer of the Bank stating that in the course of the performance by the
signer of his duties as an officer of the Bank he would normally have knowledge
of any default by the Bank in the performance of its covenants under this Trust
Indenture or of any event of default or of an other default and certifying that
the Bank has complied with all covenants, conditions or other requirements
contained in this Trust Indenture non-compliance with which would, with
notification or with the lapse of time or otherwise, constitute an event of
default or an other default or a breach of any covenant hereunder, or, if such
is not the case, setting forth with reasonable particulars the circumstances of
any failure to comply.
ARTICLE EIGHT
SPECIAL COVENANTS APPLICABLE TO SERIES 10
DEBENTURES
SECTION 8.01. Changes in Paying Agent. The Bank covenants with the Trustee
that, so long as any Series 10 Debentures remain outstanding:
(a) it will maintain a paying agent in New York City and London (England)
and, subject to applicable laws and regulations, maintain at least one paying
agent for the payment of the Series 10 Debentures in each country in which such
an agent has been initially appointed as set out in subsection 3.03(8) and, to
the extent within its reasonable control, it will not appoint any paying agent
or terminate the appointment of any paying agent for the
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Series 10 Debentures within twenty-one (2I ) days before or after the due date
of any payment on or in respect of the Series 10 Debentures;
(b) it will give to the holders of Series 10 Debentures, in the manner
provided in section 3.09, notice of the appointment, or of the termination of
the appointment (whether by the Bank or by resignation or in any other manner),
or of any change in the specified office, of any paying agent for the Series 10
Debentures, such notice to be published within the period of twenty-one (21)
days preceding the next Interest Payment Date in respect of the Series 10
Debentures following the effective date of such appointment, termination or
change, as the case may be, save that if the paying agent in New York City is
thereby affected, the Trustee will give notice to the holders of registered
Series 10 Debentures in the manner provided in section 16.01; and
(c) it will give written notice to the Trustee and to the Principal Paying
Agent of the appointment, or the termination of the appointment (whether by the
Bank or by resignation or in any other manner) of any paying agent for the
Series 10 Debentures prior 'to or forthwith upon such appointment or
termination, as the case may be.
SECTION 8.02. Arrangements with the Agent Bank and the Reference Banks.
The Bank covenants with the Trustee that, so long as any Series 10 Debentures
remain outstanding: (a) it will comply with and perform all its duties and
obligations, and use its best efforts to ensure that the Agent Bank complies
with and performs all its duties and obligations, under the Agent Bank Agreement
and further that the Bank will not make or acquiesce in any amendment or
modification to the Agent Bank Agreement without the prior written approval of
the Trustee; and (b) it will use its best efforts to ensure that the Reference
Banks carry out their duties as such.
SECTION 8.03. Listing on The Stock Exchange. The Bank hereby covenants
with the Trustee that, so long as any of the Series 10 Debentures remain
outstanding, it will use all reasonable endeavours to maintain the listing of
the Series 10 Debentures on The Stock Exchange in London and will also use its
best endeavours to ensure that there will at all times be furnished to such
stock exchange such information as such stock exchange may require in accordance
with its normal requirements or in accordance with any arrangements for the time
being made with such stock exchange.
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ARTICLE NINE
SERIES 10 DEBENTURE FUND
SECTION 9.01. Creation of the Fund. There is hereby created for certain
United States bank regulatory purposes and established with the Trustee a
segregated fund (the "Fund") to be designated "Bank of Montreal Floating Rate
Debentures, Series 10, Due 1998 Fund", into which funds shall be deposited by
the Bank as provided in section 9.02, which funds shall be used to pay the
principal of the Series 10 Debentures on the terms and subject to the conditions
set forth in this Indenture. Notwithstanding any provision to the contrary
contained in this Indenture, neither funds deposited in the Fund, nor any other
property from time to time held in the Fund, shall be deemed to be for any
purpose property of the holders of the Series 10 Debentures or trust funds and
the Fund shall not constitute security for the payment of the Series 10
Debentures.
SECTION 9.02. Deposits into the Fund. Amounts in the Fund will consist
solely of U.S. dollars and will represent the net proceeds of the sale by the
Bank for cash from time to time of Capital or, in the case of any sale of
Capital in Canadian dollars, the U.S. dollar equivalent of such net proceeds
computed on the basis of the Bank of Canada noon spot rate of exchange at the
date of deposit thereof into the Fund (such net proceeds in U.S. dollars or the
equivalent amount thereof in U.S. dollars being herein called the "Cash
Proceeds"). Any amount deposited by the Bank with the Trustee shall be
accompanied by a certificate of the Bank stating that such amount, together with
all amounts theretofore deposited into the Fund, do not exceed the aggregate
Cash Proceeds from the sale of Capital after the date of initial issuance of the
Series 10 Debentures. All amounts received by the Trustee which are accompanied
by a certificate of the Bank to the foregoing effect (and not other amounts)
shall be deposited by the Trustee into the Fund.
SECTION 9.03. Covenant to Sell Capital and Deposit Proceeds.
Notwithstanding anything else contained herein, the Bank hereby covenants and
agrees that (i) by the Interest Payment Date in July 1990, it will have sold
Capital in a sufficient amount so that the aggregate of the Cash Proceeds will
equal at least one-third of the original aggregate principal amount of the
Series 10 Debentures (or such lesser amount as the primary United States bank
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regulatory supervisor of the Bank may permit from time to time), and will have
deposited funds equivalent to such amount into the Fund, (ii) by the Interest
Payment Date in July 1994, it will have sold Capital in a sufficient amount so
that the aggregate of the Cash Proceeds will equal at least two-thirds of the
original aggregate principal amount of the Series 10 Debentures (or such lesser
amount as the primary United States bank regulatory supervisor of the Bank may
permit from time to time) and will have deposited funds equivalent to such
amount into the Fund, and (iii) by 60 days prior to the Interest Payment Date in
July 1998, it will have sold Capital in a sufficient amount so that the
aggregate of the Cash Proceeds will equal not less than the original aggregate
principal amount of the Series 10 Debentures (or such lesser amount as the
primary United States bank regulatory supervisor of the Bank may permit from
time to time) and will have deposited funds equivalent to such amount into the
Fund; provided, however, that such covenant and agreement of the Bank shall be
cancelled, and any amounts theretofore deposited into the Fund will, at the
request of the Bank, be repaid to it, in the event that the primary United
States bank regulatory supervisor of the Bank shall determine that the
indebtedness represented by the Series 10 Debentures in excess of amounts
theretofore deposited into the Fund will not be treated for United States bank
regulatory purposes as "primary capital" of the Bank or in the event that the
Series 10 Debentures shall cease being treated as "primary capital" of the Bank,
or in the event that the Bank shall have redeemed the Series 10 Debentures
pursuant to subsection 9.05(2) (ii) hereof.
SECTION 9.04. Investment of Amounts in the Fund. Amounts held in the Fund
shall be invested and reinvested by the Trustee in specified Qualifying
Investments, and such investments and reinvestments shall be liquidated or
disposed of, all at the direction of the Bank, each such direction to be in a
written order of the Bank. All such investments shall be held by or under the
control of the Trustee and shall be deemed at all times to be a part of the
Fund. All interest or discount earned on such investments and any profit
realized therefrom shall be promptly paid to the Bank and will not be deemed to
be part of the Fund. The Bank shall not direct the Trustee to make any
investments or reinvestments other than those permitted by law and this
Indenture. In making, disposing of or liquidating any such investments and
reinvestments, the Trustee shall rely on directions delivered to it pursuant to
this section 9.04, and the Trustee (or its agent) shall be relieved of all
liability with respect to making, disposing of or liquidating such investments
or
34
reinvestments in accordance with such directions and shall not be responsible
for any losses incurred in connection with such investments or reinvestments or
the disposition or liquidation thereof.
SECTION 9.05. Payment of Series 10 Debentures Prior to Stated Final
Maturity Date.
(1) Unless the Series 10 Debentures have been accelerated upon the
occurrence of an event of default or except as otherwise provided in subsections
9.05(2) and 9.05(3), the principal of the Series 10 Debentures shall be payable
prior to their final maturity on the Interest Payment Date in July 1998 solely
from funds in the Fund. Amounts in the Fund will not be available for the
payment of interest on the Series 10 Debentures. Notwithstanding anything herein
contained to the contrary, the obligation of the Bank to make payment of the
principal of the Series 10 Debentures upon redemption at their final maturity on
the Interest Payment Date in July 1998 and in the event of acceleration of the
Series 10 Debentures upon the occurrence of an event of default, and the
indebtedness of the Bank for such principal amounts, will not be affected by
whether or to what extent amounts are in the Fund.
(2) Except as stated in subsection 9.05 (3), any redemption of Series 10
Debentures pursuant to Article Six may be made (i) solely out of funds in the
Fund, provided that no notice of any such redemption to be made solely out of
funds in the Fund may be given unless there are sufficient funds available in
the Fund to pay the principal of the Series 10 Debentures to be redeemed; or
(ii) from any source, irrespective of the amount of funds available in or
theretofore deposited in the Fund (x) if the primary United States bank
regulatory supervisor of the Bank shall approve the redemption of Series 10
Debentures from a source other than funds in the Fund or (y) if the primary
United States bank regulatory supervisor of the Bank shall determine that the
indebtedness represented by the Series 10 Debentures in excess of amounts
theretofore deposited into the Fund will not be treated for United States bank
regulatory purposes as "primary capital" of the Bank or (z) if the Series 10
Debentures shall cease being treated as "primary capital" of the Bank. The
Series 10 Debentures will not be entitled to the benefit of any sinking fund.
(3) Should the Bank determine to redeem the Series 10 Debentures pursuant
to Article Six and upon satisfying the Trustee that on the occasion of
35
the next payment of interest on the Series 10 Debentures it would be obliged by
the laws of Canada, or any province or other political subdivision thereof, or
any authority or agency therein, or by reason of the administration of such
laws, to pay Tax Indemnity pursuant to section 3.04, then, so long as the
indebtedness represented by the Series 10 Debentures in excess of the amounts in
the Fund shall be deemed for United States bank regulatory purposes to
constitute "primary capital", no such redemption will be effected other than out
of funds deposited in the Fund without the prior consent of the primary United
States bank regulatory supervisor of the Bank, if the consent of such authority
is then required to be given prior to any such redemption.
SECTION 9.06. Repayment to the Bank from the Fund. In the event that the
Bank shall have redeemed any of the Series 10 Debentures as provided in
subsections 9.05(2)(ii) or 9.05 (3), there shall forthwith be repaid by the
Trustee to the Bank from the Fund an amount of funds not in excess of the
principal amount of Series 10 Debentures so redeemed. Any amounts remaining in
the Fund after redemption of all the Series 10 Debentures or.after payment in
full of the principal of and interest on all the Series 10 Debentures (or
provision for the payment thereof is made) and of the remuneration and expenses
of the Trustee shall be repaid to the Bank. Prior to any repayment by the
Trustee to the Bank of amounts from the Fund as provided in this section 9.06,
the Trustee shall be furnished with a certificate of the Bank attesting that the
conditions precedent to any such repayment have been satisfied and, in the case
of a repayment based upon the redemption of Series 10 Debentures pursuant to
subsections 9.05(2) (ii) or 9.05 (3), certifying as to the principal amount of
the Series 10 Debentures so redeemed.
SECTION 9.07. Payment to the Trustee or Principal Paying Agent from the
Fund. On the business day next preceding the final Interest Payment Date in July
1998 of the Series 10 Debentures or the redemption date of the Series 10
Debentures, the Trustee shall pay to the Principal Paying Agent such amount as
is available in the Fund and necessary to pay the principal of the Series 10
Debentures. Subject to the provisions of Article Ten and of the last sentence
of section 9.01, upon declaration of acceleration upon the occurrence of an
event of default, the Trustee shall apply such amount as is available in the
Fund and necessary to pay the principal of and interest on the Series 10
Debentures.
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ARTICLE TEN
DEFAULTS AND ENFORCEMENT
SECTION 10.01. Events of Default. The following events are herein referred
to collectively as "events of default" and individually as "an event of
default":
(a) if an order shall be made or an effective resolution be passed for the
winding-up or liquidation of the Bank, or if a liquidator of the Bank be
appointed, except in the course of carrying out or pursuant to a transaction
which is permitted by section 12.01;
(b) if the Bank shall become insolvent or bankrupt or if a curator,
receiver or receiver and manager of the Bank, or any other officer with similar
powers, be appointed; or
(c) if the Bank fails generally to pay its debts as such debts become due.
SECTION 10.02. Other Defaults. The following defaults are herein referred
to collectively as "other defaults" and individually as "an other default":
(a) if the Bank makes default in payment of the principal of or premium on
any Debentures when the same become due under any provision hereof or of the
Debentures; or
(b) if the Bank makes default in payment of any interest due on any
Debenture, and such default shall have continued for a period of thirty (30)
days.
SECTION 10.03. Notice of Default by Trustee. If an event of default or
an other default shall occur and be continuing the Trustee shall, within thirty
(30) days after it becomes aware of the occurrence of such default, give notice
of such default to the Debentureholders, provided that, notwithstanding the
foregoing, the Trustee shall not be required to give such notice if the Trustee
in good faith determines that the withholding of such notice is in the best
37
interests of the Debentureholders and gives notice of such determination to the
Bank.
SECTION 10.04. Acceleration.
(1) Only in case an event of default, as defined in section 10.01, has
occurred, the Trustee may in its discretion and shall upon receipt of a
Debentureholders' Request, subject to the provisions of section 10.06, declare
the principal of and interest on all Debentures then outstanding and other
moneys payable hereunder to be due and payable and the same shall forthwith
become immediately due and payable to the Trustee on demand, anything therein or
herein to the contrary notwithstanding, and the Bank shall on such demand
forthwith pay to the Trustee for the benefit of the Debentureholders the
principal of and accrued and unpaid interest (including interest on all amounts
overdue) on the Debentures, premium (if any), and all other moneys payable
hereunder, together with subsequent interest thereon at the rates borne by the
Debentures from the date of the said declaration until payment is received by
the Trustee, such subsequent interest to be payable at the times and places and
in the moneys mentioned in and according to the tenor of the Debentures and
coupons. Such payment when made shall be deemed to have been made in discharge
of the Bank's obligations hereunder and any moneys so received by the Trustee
shall be applied as herein provided.
(2) Nothing in this section shall require the Bank to pay the principal .
of any Debenture at a time when such payment would be contrary to the provisions
of subsection 2.02(1); provided that nothing herein shall be deemed to prevent
the Trustee or, subject to section 10.08, the holder of any Debenture from
proving claims in any insolvency or winding-up proceedings for such amounts in
respect of the Debentures as they may be permitted to claim under the laws
applicable to such insolvency or winding-up proceedings or from receiving
payment of any such amounts.
SECTION 10.05. Covenant of the Bank to Pay to the Trustee the Whole Amount
Due on Debentures upon Occurrence of an Other Default. The Bank covenants that
upon the occurrence of an other default, upon demand of the Trustee, it will pay
to the Trustee, for the benefit of the holders of the Debentures, the whole
amount that then shall have become due and payable on all such Debentures for
principal, premium (if any) and/or interest, as the
38
case may be, with interest upon the overdue principal and interest at the rate
of interest borne by the Debentures.
SECTION 10.06. Waiver of Default. In case an event of default or an other
default has occurred otherwise than by default in payment of any principal
moneys at maturity on any Debenture:
(a) the holders of more than 50 in principal amount of the Debentures then
outstanding shall have power (in addition to and subject to the powers
exercisable by extraordinary resolution as hereinafter provided) by instrument
in writing to instruct the Trustee to waive the default and /or to annul any
declaration made by the Trustee pursuant to section 10.04 and the Trustee shall
thereupon waive the default and/or annul such declaration upon such terms and
conditions as such Debentureholders shall prescribe in such instrument; and
(b) the Trustee, so long as it has not become bound to institute any
proceeding hereunder, shall have power to waive the event of default or, as the
case may be, the other default if, in the Trustee's opinion, the same shall have
been cured or adequate satisfaction made therefor, and in the event of waiver of
an event of default to annul any such declaration theretofore made by the
Trustee in the exercise of its discretion, upon such terms and conditions as to
the Trustee may seem advisable;
provided that no act or omission either of the Trustee or of the
Debentureholders in the premises shall extend to or be taken in any manner
whatsoever to affect any subsequent default or the rights resulting therefrom.
SECTION 10.07. Proceedings by the Trustee.
(1) Whenever an event of default or an other default has occurred, but
subject to the provisions of section 10.06 and to the provisions of any
extraordinary resolution:
(a) the Trustee, in the exercise of its discretion, may proceed to enforce
the rights of the Trustee and the Debentureholders by any action, suit, remedy
or proceeding authorized or permitted by law or by equity and may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee and of the
39
Debentureholders lodged in any winding-up or other proceedings relative to the
Bank; and
(b) upon receipt of a Debentureholders' Request the Trustee subject to
section 15.02, shall exercise or take such one or more of the said remedies as
the Debentureholders' Request may direct or, if such Debentureholders' Request
contains no direction, as the Trustee may deem expedient.
(2) No such remedy for the enforcement of the rights of the Trustee or of
the Debentureholders shall be exclusive of or dependent on any other such remedy
but any one or more of such remedies may from time to time be exercised
independently or in combination.
(3) All rights of action hereunder may be enforced by the Trustee without
the possession of any of the Debentures or coupons or the production thereof on
the trial or other proceedings relative thereof.
(4) No delay or omission of the Trustee or of the Debentureholders to
exercise any remedy referred to in subsection 10.07(1) shall impair any such
remedy or shall be construed to be a waiver of any event of default or other
default hereunder or acquiescence therein.
SECTION 10.08. Suits by Debentureholders. No holder of any Debenture or
coupon shall have the right to institute any action or proceeding or to exercise
any other remedy authorized by this Trust Indenture for the execution of any
trust or power hereunder or for the appointment of a curator or liquidator or
receiver or to have the Bank wound up or to file or prove a claim in any
liquidation or insolvency proceedings, unless the Trustee shall have failed to
act within a reasonable time after the Debentureholders' Request referred to in
section 10.07 has been delivered to the Trustee or after breach by the Bank of
the covenant set forth in section 10.05 and any indemnity required by it under
section 15.02 has been tendered to it; in such case, but not otherwise; any
Debentureholder acting on behalf of himself and all other Debentureholders shall
be entitled to take proceedings in any court of competent jurisdiction such as
the Trustee might have taken under section 10.07; it being understood and
intended that no one or more holders of Debentures or coupons shall have any
right in any manner whatsoever to affect, disturb or prejudice the rights hereby
created by his or their action or to
40
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
equal benefit of all holders of all outstanding Debentures and coupons.
Section 10.09. Application of Moneys Received by Trustee the.
(1) Except as otherwise herein provided; all moneys arising from any
enforcement hereof shall be held by the Trustee and by it applied, together with
any other moneys then or thereafter in the hands of the Trustee available for
the purpose, as follows:
(a) firstly, in payment or reimbursement to the Trustee of the
remuneration, expenses, disbursements, and advances of the Trustee earned,
incurred or made in the administration or execution of the trusts hereunder or
otherwise in relation to this Trust Indenture with interest thereon as herein
provided; and
(b) secondly, but subject to the provisions of section 7.03, in or towards
payment of the principal of and premium (if any) and accrued and unpaid interest
(including interest on all amounts overdue) on the Debentures and coupons which
shall then be outstanding, in that order of priority unless otherwise directed
by extraordinary resolution and in that case in such order of priority as
between principal, premium and interest as may be directed by such extraordinary
resolution.
The surplus (if any) of such money shall be paid to the Bank or its
assigns.
(2) The holders of Debentures in respect of which no payments of principal
have been received by the Trustee by reason of the restrictions contained in
subsection 10.04(2) shall not be entitled to participate in any distribution
under clause (b) of subsection 40.09(1) (except a distribution on account of
interest until such restrictions shall cease to apply to such Debentures;
thereafter the holders of such Debentures shall be entitled to participate in
distributions under said clause (b) in priority to the holders of
41
Debentures which were not so restricted until the amounts distributed to the
holders of all Debentures are proportionate to the amounts owing thereon.
SECTION 10.10. Distribution of Proceeds. Payment to holders of
Debentures and coupons pursuant to clause (b) of subsection 10.09(1) shall be
made as follows:
(1) At least fifteen days' notice of every such payment shall be given in
the manner provided in Article Sixteen specifying the time when and the place or
places where the Debentures and coupons are to be presented and the amount of
the payment and the application thereof as between principal, premium and
interest.
(2) Payment of any Debenture or coupon shall be made upon presentation
thereof at any one of the places specified in such notice and any such Debenture
or coupon thereby paid in full shall be surrendered, otherwise a memorandum of
such payment shall be endorsed thereon; but the Trustee may in its discretion
dispense with presentation and surrender or endorsement in any special case upon
such indemnity being given as it shall deem sufficient.
(3) From and after the date of payment specified in the notice interest
shall accrue only on the amount owing on each Debenture and coupon after giving
credit for the amount of the payment specified in such notice unless it be duly
presented on or after the date so specified and payment of such amount be not
made.
(4) The Trustee shall not be required to make any interim payment to
Debentureholders unless the moneys in its hands, after reserving therefrom such
amount as the Trustee may think necessary to provide for the payments mentioned
in clause (a) of subsection 10.09(1) exceed 5% of the principal amount of the
outstanding Debentures.
SECTION 10.11. Immunity of Shareholders, etc . The Debentureholders
and the Trustee hereby waive and release any right, cause of action or remedy
now or hereafter existing in any jurisdiction against any past, present or
future incorporator, shareholder, director or officer (as such) of the Bank or
of any successor company for the payment of the principal of or premium or
interest on any of the Debentures or on any covenant, agreement, representation
or warranty by the Bank herein or in the Debentures contained;
42
provided that nothing in this section shall prevent recourse to and the
enforcement of liability of any shareholder for uncalled capital or upon
unsatisfied calls.
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
SECTION 11.01 . Cancellation and Destruction. All matured coupons and
Debentures shall forthwith after payment thereof be cancelled and delivered to
the Trustee. All Debentures and coupons cancelled or required to be cancelled
under this or any other provision of this Trust Indenture may be destroyed by or
under the direction of the Trustee by cremation or otherwise (in the presence of
a representative of the Bank if the Bank shall so require) and the Trustee shall
prepare and retain a certificate of such destruction and deliver a duplicate
thereof to the Bank.
SECTION 11.02. Non-Presentation of Debentures and Coupons. In case the
holder of any Debenture or coupon shall fail to present the same for payment on
the date on which the principal thereof, the premium (if any) thereon and/or the
interest thereon or represented thereby becomes payable either at maturity or
on redemption or otherwise:
(a) the Bank shall be entitled to pay to the Trustee and direct it to set
aside, or
(b) in respect of moneys in the hands of the Trustee which may or should
be applied to the payment or redemption of the Debentures, the Bank shall be
entitled to direct the Trustee to set aside,
the principal moneys and premium (if any) and/or the interest, as the case may
be, in trust to be paid to the holder of such Debenture or coupon upon due
presentation and surrender thereof in accordance with the provisions of this
Trust Indenture; and thereupon the principal moneys and premium (if any) and/or
the interest payable on or represented by each Debenture and each coupon in
respect whereof such moneys have been set aside shall be deemed to have been
paid and the holder thereof shall thereafter have no right in respect
43
thereof except that of receiving payment of the moneys so set aside by the
Trustee (without interest on such moneys) upon due presentation and surrender
thereof, subject always to the provisions of section 11.03.
SECTION 11.03. Repayment of Unclaimed Moneys to Bank. Any moneys set
aside under section 11.02 in respect of any Debenture or coupon and not claimed
by and paid to the holder thereof, as provided in section 11.02, within six
years after the date of such setting aside shall be repaid to the Bank by the
Trustee on demand, and thereupon the Trustee shall be released from all further
liability with respect to such moneys, and thereafter such holder shall have no
rights in respect of such Debenture or coupon except to obtain payment of such
moneys (without interest thereon) from the Bank.
SECTION 11.04. Release from Covenants. Upon proof being given to the
reasonable satisfaction of the Trustee of compliance with the following
conditions:
(1) that the Bank has paid and discharged or provided for the payment and
discharge of the entire indebtedness on all Debentures outstanding hereunder in
any one or more of the following ways:
(a) by paying or causing to be paid the principal of and premium (if
any) and interest on Debentures outstanding hereunder as and when the same
became due and payable;
(b) by paying to the Trustee; or making provision satisfactory to
the Trustee for the payment of, moneys sufficient to pay principal and
interest to maturity on Debentures outstanding hereunder and maturing
within ninety (90) days;
(c) by paying to the Trustee, or making provision satisfactory to
the Trustee for the payment of, moneys sufficient to redeem Debentures
outstanding hereunder together with (i) proof satisfactory to the Trustee
that notice of redemption of such Debentures within ninety (90) days has
been duly given or waived or (ii) a written order of the Bank, expressed
to be irrevocable, authorizing the Trustee to give notice of such
redemption for and on behalf of the Bank; and/or
44
(d) by delivering to the Trustee, for cancellation by it, Debentures
outstanding hereunder with all unpaid coupons appertaining 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, upon the written request and at the expense of the Bank,
execute and deliver to the Bank such instruments as shall be requisite to
evidence the satisfaction of the obligations of the Bank under this Trust
Indenture and to release the Bank from its covenants herein contained except
those relating to the indemnification of the Trustee.
ARTICLE TWELVE
SUCCESSOR BANKS
SECTION 12.01. Certain Requirements in Respect of Merger, etc. The Bank
shall not enter into any transaction (whether by way of reconstruction,
reorganization, consolidation, amalgamation, merger, transfer, sale or
otherwise) whereby all or substantially all of its undertaking, property and
assets would become the property of any other person or, in the case of any such
amalgamation, of the continuing company resulting therefrom, unless, but may do
so if:
(1) the successor bank is an amalgamated bank resulting from the
amalgamation of the Bank with one or more other Canadian chartered banks under
an amalgamation agreement having the force of law under the Bank Act and by
virtue of which the successor bank is subject to all 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:
45
(a) the successor bank shall execute, prior to or contemporaneously
with the consummation of such transaction, an indenture supplemental
hereto and such other instruments (if any) as are satisfactory to the
Trustee and in the opinion of counsel are necessary or advisable to
evidence the assumption by the successor bank of liability for the due and
punctual payment of all the Debentures and the interest thereon and all
other moneys payable hereunder and the covenant of the successor bank to
pay the same and its agreement to observe and perform all the covenants
and obligations of the Bank under this Trust Indenture;
(b) such transaction shall to the satisfaction of the Trustee and in
the opinion of counsel be upon terms substantially preserving and not
materially impairing any of the rights and powers of the Trustee or of the
Debentureholders hereunder; and
(c) no condition or event shall exist in respect of the successor
bank at the time of such transaction and after giving full effect thereto
which constitutes or would constitute an event of default or an other
default hereunder.
SECTION 12.02. Vesting of Powers in Successor. Whenever the conditions of
section 12.01 have been duly observed and performed, the Trustee shall execute
and deliver the said supplemental indenture pursuant to Article Fourteen and
thereupon the successor bank shall possess and from time to time may exercise
each and every right and power of the Bank under this Trust Indenture in the
name of the Bank or otherwise and any act or proceeding by any provision of this
Trust Indenture required to be done or performed by any directors or officers of
the Bank may be done and performed with like force and effect by the like
directors or officers of such successor bank.
ARTICLE THIRTEEN
MEETINGS OF DEBENTUREHOLDERS
SECTION 13.01. Right to Convene Meeting. The Trustee may at any time and
from time to time and shall, on receipt of a written request of the Bank or a
Debentureholders' Request and upon being indemnified to its
46
reasonable satisfaction by the Bank or by the Debentureholders signing such
Debentureholders' Request against the costs which may be incurred in connection
with the calling and holding of such meeting, convene a meeting of the
Debentureholders. In the event of the Trustee failing within thirty (30) days
after receipt of such request and indemnity to give notice convening such
meeting, the Bank or such Debentureholders, as the case may be, may convene such
meeting. Every such meeting shall be held in the City of Montreal or in the City
of Toronto or at such other place as may be approved or determined by the
Trustee.
SECTION 13.02. Notice. At least thirty (30) days' notice of any meeting
shall be given to the Debentureholders in the manner provided in Article
Sixteen and a copy thereof shall be sent by mail to the Trustee unless the
meeting has been called by it and to the Bank unless the meeting has been called
by it. Such notice shall state the time when and the place where the meeting is
to be held and shall state briefly the general nature of the business to be
transacted thereat and it shall not be necessary for any such notice to set out
the terms of any resolution to be proposed or any of the provisions of this
Article.
SECTION 13.03. Chairman. Some individual person, who need not be a
Debentureholder, nominated in writing by the Trustee shall be chairman of the
meeting and if no person is so nominated, or if the person so nominated is not
present within fifteen minutes from the time fixed for the holding of the
meeting, the Debentureholders present in person or by proxy shall choose some
person present to be chairman.
SECTION 13.04. Quorum. Subject to the provisions of section 13.13:
(a) at any meeting of the Debentureholders a quorum shall consist of
Debentureholders present in person or by proxy and representing at least
25% in principal amount of the outstanding Debentures;
(b) if a quorum of the Debentureholders shall not be present within
one half hour after the time fixed for holding any meeting, the meeting,
if convened by the Debentureholders or on a Debentureholders' Request,
shall be dissolved, but if otherwise convened the meeting shall stand
adjourned without notice to the same day in the next week (unless
47
such day is a non-business day in which case it shall stand adjourned to
the next following business day thereafter) at the same time and place,
unless the chairman shall appoint some other place, day and/or time of
which not less than seven days' notice shall be given in the manner
provided in Article Sixteen; and
(c) at the adjourned meeting the Debentureholders present in person
or by proxy shall form a quorum and may transact the business for which
the meeting was originally convened notwithstanding that they may not
represent 25% in principal amount of the outstanding Debentures.
SECTION 13.05. Power to Adjourn. The chairman of any meeting at which a
quorum of the Debentureholders is present may with the consent of the holders of
a majority in principal amount of the Debentures represented thereat adjourn any
such meeting and no notice of such adjournment need be given except such notice,
if any, as the meeting may prescribe.
SECTION 13.06. Show of Hands. Every question submitted to a meeting shall
be decided by a majority of the votes given on a show of hands except that votes
on extraordinary resolutions shall be given in the manner hereinafter provided.
At any such meeting, unless a poll is duly demanded as herein provided, a
declaration by the chairman that a resolution has been carried or carried
unanimously or by a particular majority or lost or not carried by a particular
majority shall be conclusive evidence of the fact.
SECTION 13.07. Poll. On every extraordinary resolution, and on any other
question submitted to a meeting when demanded after a vote by show of hands by
the chairman or by any Debentureholder, a poll shall be taken in such manner as
the chairman shall direct. Questions other than extraordinary resolutions shall,
if a poll be taken, be decided by the votes of the holders of more than 50% in
principal amount of the Debentures represented at the meeting and voted on the
poll.
SECTION 13.08. Voting. On a show of hands every person who is present and
entitled to vote, whether as a Debentureholder or as proxy for one or more
absent Debentureholders or both, shall have one vote. On a poll each
Debentureholder present in person or represented by a proxy duly appointed by
instrument in writing shall be entitled to one vote in respect of each $1,000 or
U.S. $1,000 principal amount of Debentures, as the case may be, of which he
48
shall then be the holder. A proxy need not be a Debentureholder. In the case
of joint registered holders of a Debenture, any one of them present in person or
by proxy at the meeting may vote in the absence of the other or others; but in
case more than one of them be present in person or by proxy, they must vote
together in respect of the Debentures of which they are joint registered
holders.
SECTION 13.09. Regulations. The Trustee or the Bank with the approval of
the Trustee may from time to time make and from time to time vary such
regulations as it shall from time to time think fit:
(a) for the issue of voting certificates
(i) by any bank, trust company or other depositary approved by
the Trustee certifying that specified unregistered Debentures have
been deposited with it by a named holder and will remain on deposit
until after the meeting, or
(ii) by any bank, trust company, insurance company,
governmental department or agency approved by the Trustee certifying
that it is the holder of specified unregistered Debentures and will
continue to hold the same until after the meeting;
which voting certificates shall entitle the holders named therein to be
present and vote at any such meeting and at any adjournment thereof or to
appoint a proxy or proxies to represent them and vote for them at any such
meeting and at any adjournment thereof, in the same manner and with the
same effect as though the holders so named in such voting certificates
were the actual bearers of the Debentures specified therein;
(b) for the deposit of voting certificates and/or instruments
appointing proxies at such place as the Trustee, the Bank or the
Debentureholders convening the meeting, as the case may be, may in the
notice convening the meeting direct; and
(c) for the deposit of voting certificates and/or instruments
appointing proxies at some approved place or places other than the place
at which the meeting is to be held and enabling particulars of such voting
certificates and/or instruments appointing proxies to be mailed, cabled or
otherwise transmitted before the meeting to the Bank or to the Trustee at
49
the place where the same is to be held and for the voting of proxies so
deposited as though the instruments themselves were produced at the
meeting.
Any regulations so made shall be binding and effective and the votes given in
accordance therewith shall be valid and shall be counted. Save as such
regulations may provide, the only persons who shall be recognized at any meeting
as the holders of any Debentures, or as entitled to vote or be present at the
meeting in respect thereof, shall be persons who produce unregistered Debentures
at the meeting and the holders of registered Debentures and persons whom holders
of registered Debentures have by instrument in writing duly appointed as their
proxies.
SECTION 13.10. Bank and Trustee may be Represented. The Bank and the
Trustee, by their respective officers and directors, and the legal advisors of
the Bank and the Trustee may attend any meeting of the Debentureholders, but
shall have no vote as such.
SECTION 13.11. Powers Exercisable by Extraordinary Resolution.
(1) In addition to all other powers conferred upon them by any other
provisions of this Trust Indenture or by law, a meeting of the Debentureholders
shall have the following powers exercisable from time to time by extraordinary
resolution:
(a) power to agree to any modification, abrogation, alteration,
compromise or arrangement of the rights of Debentureholders and/or the
Trustee against the Bank or against its undertaking, property and assets
or any part thereof whether such rights arise under this Trust Indenture
or the Debentures or otherwise;
(b) power to direct or authorize the Trustee to exercise any power,
right, remedy or authority given to it by this Trust Indenture or the
Debentures in any manner specified in such extraordinary resolution or to
refrain from exercising any such power, right, remedy or authority;
(c) power to waive and direct the Trustee to waive any event of
default or other default on the part of the Bank in complying with any
provision of this Trust Indenture or the Debentures, and/or to annul and
50
to direct the Trustee to annul any declaration in respect of any such
event of default made by the Trustee pursuant to section 10.04, either
unconditionally or upon any conditions specified in such extraordinary
resolution;
(d) power to restrain any Debentureholder or the holder of any
coupon from taking, instituting or maintaining any suit, action or
proceeding for the payment of principal, interest or premium or for the
execution of any trust or power hereunder or for the appointment of a
liquidator or receiver or a trustee in bankruptcy or to have the Bank
wound up or for any other remedy hereunder;
(e) power to sanction the exchange of Debentures for or the
conversion of Debentures into shares, bonds, debentures, notes or any
other securities or obligations of the Bank or any other bank or
corporation or proposed bank or corporation;
(f) power to repeal, modify or amend any extraordinary resolution
previously passed by the Debentureholders; and
(g) power to assent to any modification of or change in or omission
from the provisions contained herein which shall be agreed to by the Bank
and to authorize the Trustee to concur in and execute any deed or
instrument supplemental hereto embodying such modification, change or
omission.
(2) A meeting of Debentureholders shall have the power, exercisable from
time to time by extraordinary resolution, to appoint and remove a committee to
consult with the Trustee and to delegate to such committee (subject to such
limitations, if any, as may be prescribed in such extraordinary resolution) all
or any of the powers which the Debentureholders could exercise by extraordinary
resolution under clauses (b), (c) and (d) of subsection 13.11(1). The
extraordinary resolution making such appointment may provide for payment of the
expenses and disbursements of and compensation to such committee. Such committee
shall consist of such number of persons as shall be prescribed in the
extraordinary resolution appointing it, and the members need not be themselves
Debentureholders. Subject to the extraordinary resolution appointing it, every
such committee may elect its chairman and may make regulations respecting its
quorum, the calling of its meetings, the filling of
51
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.
SECTION 13.12. Powers Cumulative. It is hereby declared and agreed that
any one or more of the powers and/or any combination of the powers in this Trust
Indenture stated to be exercisable by the Debentureholders by extraordinary
resolution or otherwise may be exercised from time to time and the exercise of
any one or more of such powers or any combination of powers from time to time
shall not be deemed to exhaust the right of the Debentureholders to exercise
such power or powers or combination of powers then or any power or powers or
combination of powers thereafter from time to time.
SECTION 13.13. Meaning of "Extraordinary Resolution."
(1) The expression "extraordinary resolution" when used in this Trust
Indenture means, subject as hereinafter in this section 13.13 and in sections
13.15 and 13.17 provided, a resolution proposed to be passed as an
extraordinary resolution at a meeting of Debentureholders duly convened for the
purpose and held in accordance with the provisions of this Article Thirteen at
which the holders of more than 50% in principal amount of the Debentures then
outstanding are present in person or by proxy and passed by the favourable votes
of the holders of not less than 66 2/3% of the principal amount of Debentures
represented at the meeting and voted on a poll upon such resolution.
(2) If at any such meeting the holders of more than 50% in principal
amount of the Debentures outstanding are not present in person or by proxy
within one half hour after the time appointed for the meeting, then the meeting,
if convened by Debentureholders or on a Debentureholder's Request, shall be
dissolved; but if otherwise convened the meeting shall stand adjourned
52
to such day, being not less than twenty-one (21) nor more than sixty (60) days
later, and to such place and time as may be appointed by the chairman. Not less
than ten (10) days' notice shall be given of the time and place of such
adjourned meeting in the manner provided in Article Sixteen. Such notice shall
state that at the adjourned meeting the Debentureholders present in person or by
proxy shall form a quorum but it shall not be necessary to set forth the
purposes for which the meeting was originally called or any other particulars.
At the adjourned meeting the Debentureholders present in person or by proxy
shall form a quorum and may transact the business for which the meeting was
originally convened and a resolution proposed at such adjourned meeting and
passed by the requisite vote as provided in subsection 13.13(1) shall be an
extraordinary resolution within the meaning of this Trust Indenture,
notwithstanding that the holders of more than 50% in principal amount of the
Debentures then outstanding are not present in person or by proxy at such
adjourned meeting.
(3) Votes on an extraordinary resolution shall always be given on a poll
and no demand for a poll on an extraordinary resolution shall be necessary.
SECTION 13.14. Minutes. Minutes of all resolutions and proceedings at
every such meeting as aforesaid shall be made and duly entered in books to be
from time to time provided for that purpose by the Trustee at the expense of the
Bank, and any such minutes as aforesaid, if signed by the chairman of the
meeting at which such resolutions were passed or proceedings had, or by the
chairman of the next succeeding meeting of the Debentureholders, shall be prima
facie evidence of the matters therein stated and, until the contrary is proved,
every such meeting, in respect of the proceedings of which minutes shall have
been made, shall be deemed to have been duly held and convened, and all
resolutions passed thereat or proceedings had, to have been duly passed and had.
SECTION 13.15. Instruments in Writing. All actions, that may be taken and
all powers that may be exercised by the Debentureholders at a meeting held as
hereinbefore in this Article Thirteen provided may also be taken and exercised
by the holders of not less than 66 2/3% in principal amount of all the
outstanding Debentures by an instrument in writing signed in one or more
counterparts and the expression "extraordinary resolution" when used in this
Trust Indenture shall include an instrument so signed.
53
SECTION 13.16. Binding Effect of Resolutions. Subject to the provisions
of section 13.17, every resolution and every extraordinary resolution passed
in accordance with the provisions of this Article Thirteen at a meeting of
Debentureholders shall be binding upon all the Debentureholders, whether present
at or absent from such meeting, and every instrument in writing signed by
Debentureholders in accordance with section 13.15 shall be binding upon all the
Debentureholders, whether signatories thereto or not, and each and every
Debentureholder and the Trustee (subject to the provisions for its indemnity
herein contained) shall be bound to give effect accordingly to every such
resolution, extraordinary resolution and instrument in writing.
SECTION 13.17. Serial Meetings.
(1) If any business to be transacted at a meeting of Debentureholders, or
any action to be taken or power to be exercised by instrument in writing under
section 13.15, especially affects the rights of the holders of Debentures of
one or more series or maturities in a manner or to an extent substantially
differing from that in or to which it affects the rights of the holders of
Debentures of any other series or maturity (as to which an opinion of counsel
shall be binding on all Debentureholders, the Trustee and the Bank for all
purposes hereof) then:
(a) reference to such fact, indicating each series or maturity so
especially affected, shall be made in the notice of such meeting and the
meeting shall be and is herein called a "serial meeting"; and
(b) the holders of Debentures of a series or maturity so especially
affected shall not be bound by any action taken at a serial meeting or by
instruments in writing under section 13.15 unless in addition to
compliance with the other provisions of this Article
(i) at such serial meeting:
(A) there are present in person or by proxy holders of
at least 25% (or for the purpose of passing an extraordinary
resolution more than 50%) in principal amount of the
outstanding Debentures of such series or maturity, subject to
the provisions of this Article as to adjourned meetings; and
54
(B) the resolution is passed by the favourable votes of
the holders of more than 50% (or in the case of an
extraordinary resolution not less than 66 2/3%) in principal
amount of Debentures of such series or maturity voted on the
resolution; or
(ii) in the case of action taken or power exercised by
instrument in writing under section 13.15, such instrument is signed
in one or more counterparts by the holders of not less than 66 2/3%
in principal amount of the outstanding Debentures of such series or
maturity.
(2) if in the opinion of counsel any business to be transacted at any
meeting, or any action to be taken or power to be exercised by instrument in
writing under section 13.15, does not adversely affect the rights of the
holders of Debentures of one or more particular series or maturities, the
provisions of this Article Thirteen shall apply as if the Debentures of such
series or maturity were not outstanding and no notice of any such meeting need
be given to the holders of Debentures of such series or maturity. Without
limiting the generality of the foregoing, a proposal to modify or terminate any
covenant or agreement which by its terms is effective only so long as Debentures
of a particular series or maturity are outstanding shall be deemed not to
adversely affect the rights of the holders of Debentures of any other series or
maturity.
(3) A proposal (i) to extend the maturity of Debentures of any particular
series or maturity or reduce the principal amount thereof or the rate of
interest or redemption premium thereon, (ii) to modify or terminate any covenant
or agreement which by its terms is effective only so long as Debentures of a
particular series are outstanding, or (iii) to reduce with respect to holders of
Debentures of any particular series any percentage stated in section 1.01,
10.06, 13.04, 13.07, 13.13 or 13.15 or in this section 13.17, shall be deemed
to especially affect the rights of the holders of Debentures of such series or
maturity, as the case may be, in a manner substantially differing from that in
which it affects the rights of holders of Debentures of any other series or
maturity, whether or not a similar extension, reduction, modification or
termination is proposed with respect to Debentures of any or all other series
and maturities.
55
ARTICLE FOURTEEN
SUPPLEMENTAL INDENTURES
SECTION 14.01. Execution of Supplemental Indentures. From time to time
the Bank (when authorized by a resolution of its directors) and the Trustee may,
subject to the provisions of these presents, and they shall, when so directed by
these presents, execute and deliver by their proper officers, indentures or
other instruments supplemental hereto, which thereafter shall form part hereof,
for any one or more or all of the following purposes:
(a) establishing the terms of any subsequent series of Debentures
and the forms and denominations in which they may be issued as provided in
Article Two;
(b) adding to the covenants of the Bank herein contained for the
protection of the holders of the Debentures, or of the Debentures of any
series, and providing for events of default in addition to those specified
in Article Ten;
(c) evidencing the succession of successor banks to the Bank and the
covenants of and obligations assumed by such successor banks in accordance
with the provisions of Article Twelve;
(d) giving effect to any extraordinary resolution passed as provided
in Article Thirteen;
(e) adding to or altering the provisions hereof in respect of the
registration and transfer of Debentures, making provision for the issue of
Debentures in forms or denominations other than those herein provided for
and for the exchange of Debentures of different forms and denominations
and making any modifications in the forms of the Debentures and coupons
which in the opinion of the Trustee do not affect the substance thereof;
(f) making any additions to, deletions from or alterations of the
provisions of this Trust Indenture which the Bank may deem necessary or
advisable in order to facilitate the sale of the Debentures and which, in
the
56
opinion of the Trustee, do not adversely affect in any substantial respect the
interests of the holders of the Debentures, or any series or maturity thereof
then outstanding, including without limiting the generality of the foregoing
such additions, deletions and alterations, including provision for the
appointment of an additional trustee or a co-trustee in any jurisdiction, as
would be required to comply with the provisions relating to trust indentures
contained in any corporations act, securities act, trust indenture act or
similar legislation in any jurisdiction in which the Bank may desire to sell the
Debentures;
(g) making any additions to, deletions from or alterations of the
provisions of this Trust Indenture which in the opinion of counsel may from'
time to time be necessary or advisable to conform the same to applicable
legislation as that term is defined in subsection 15.01(1); and
(h) for any other purpose not inconsistent with the terms of this Trust
Indenture, including the correction or rectification of any ambiguities,
defective provisions, errors or omissions herein, provided that in the opinion
of the Trustee the rights of the Trustee or of the Debentureholders are in no
way prejudiced thereby.
ARTICLE FIFTEEN
CONCERNING THE TRUSTEE
SECTION 15.01. Trust Indenture Legisla tion.
(1) In this Article the term "applicable legislation" means the
provisions, if any, of any statute of Canada or a province thereof, and of
regulations under any such statute, relating to trust indentures and to the
rights, duties and obligations of trustees under trust indentures and of
corporations issuing debt obligations under trust indentures, to the extent that
such provisions are at the time in force and applicable to this Trust Indenture.
(2) If and to the extent that any provision of this Trust Indenture
limits, qualifies or conflicts with a mandatory requirement of applicable
legislation, such mandatory requirement shall prevail.
57
(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 15.02. Rights and Duties of Trustee.
(1) In the exercise of the rights, duties and obligations prescribed or
conferred by the terms of this Trust Indenture, the Trustee shall act honestly
and in good faith with a view to the best interests of the Debentureholders and
shall exercise that degree of care, diligence and skill that a reasonably
prudent trustee would exercise in comparable circumstances.
(2) Subject only to subsection 15.02(1), the obligation of the Trustee to
commence or continue any act, action or proceeding for the purpose of enforcing
any rights of the Trustee or the Debentureholders hereunder shall be conditional
upon the Debentureholders furnishing, when required by notice in writing by the
Trustee, sufficient funds to commence or continue such act, action or proceeding
and indemnity reasonably satisfactory to the Trustee to protect and hold
harmless the Trustee against the costs, charges and expenses and liabilities to
be incurred thereby and any loss and damage it may suffer by reason thereof.
None of the provisions contained in this Trust Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties or in the exercise of any of its rights
or powers unless indemnified as aforesaid.
(3) The Trustee may, before commencing or at any time during the
continuance of any such act, action or proceeding, require the Debentureholders
at whose instance it is acting to deposit with the Trustee the Debentures held
by them, for which Debentures the Trustee shall issue receipts.
(4) Every provision of this Trust Indenture that by its terms relieves the
Trustee of liability or entitles it to rely upon any evidence submitted to it,
is subject to the provisions of applicable legislation and of this section
15.02 and of sections 15.03 and 15.04.
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SECTION 15.03. Evidence of Compliance.
(1) The Bank shall furnish the Trustee with evidence of compliance with
the conditions of this Trust Indenture:
(a) in respect of, and before doing any act relating to, the issue,
certification and delivery of Debentures hereunder or the satisfaction and
discharge of this Trust Indenture; and
(b) upon the demand of the Trustee, in respect of any act to be done
by the Trustee at the request of the Bank.
(2) Evidence of compliance required under subsection 15.03(1) shall
consist of (a) a statutory declaration or certificate made by a director or an
officer of the Bank stating that the conditions of this Trust Indenture have
been complied with and, where required by this Trust Indenture, (b) an opinion
of counsel that such conditions have been complied with.
(3) Evidence of compliance referred to in subsection 15.03(2) shall
include a statement by the person giving the evidence:
(a) declaring that he has read and understands the conditions of
this Trust Indenture referred to in subsection 15.03 (l);
(b) describing the nature and scope of the examination or
investigation on which the certificate, statement or opinion is based;
and
(c) declaring that he has made such examination or investigation as
he believes necessary to enable him to make the statements or give the
opinions contained or expressed therein .
SECTION 15.04. Evidence, Experts and Advisers.
(1) In addition to the reports, certificates, opinions and other evidence
required by this Trust Indenture, the Bank shall furnish to the Trustee such
additional evidence of compliance with any provision hereof, and in such form,
as may be prescribed by applicable legislation or as the Trustee may reasonably
require by written notice to the Bank.
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(2) In the exercise of its rights, duties and obligations, the Trustee
may, if it is acting in good faith, rely as to the truth of the statements and
the accuracy of the opinions expressed therein, upon statutory declarations,
opinions, reports, certificates or other evidence referred to in subsection
15.04(1) provided that such evidence complies with applicable legislation and
that the Trustee examines the same in order to determine whether such evidence
indicates compliance with the applicable requirements of this Trust Indenture.
(3) Whenever applicable legislation requires that evidence referred to in
subsection 15 .04(l) be in the form of a statutory declaration, the Trustee may
accept such statutory declaration in lieu of a certificate of the Bank required
by any provision hereof. Any such statutory declaration may be made by one or
more of the chairman, the president, the secretary, the comptroller, the chief
accountant, or any vice-president, assistant secretary or director of the Bank.
(4) Proof of the execution of an instrument in writing, including a
Debentureholders' Request, by any Debentureholder may be made by the certificate
of a notary public, or other officer with similar powers, that the person
signing such instrument acknowledged to him the execution thereof, or by an
affidavit of a witness to such execution or in any other manner which the
Trustee may consider adequate.
(5) The Trustee may employ or retain such counsel, accountants, engineers,
appraisers or other experts or advisers as it may reasonably require for
the purpose of discharging its duties hereunder and shall not be responsible for
any misconduct on the part of any of them.
SECTION 15.05. Documents, Moneys, etc., Held by Trustee. Any securities,
documents of title or other instruments that may at any time be held by the
Trustee subject to trusts hereof may be placed in the deposit vaults of the
Trustee or of the Bank or of any other Canadian chartered bank or deposited for
safekeeping with any such bank. Pending the application or withdrawal of any
moneys so held under any provision of this Trust Indenture, the Trustee, unless
it is herein otherwise expressly provided, may deposit the same in the name of
the Trustee in the Bank or in any other Canadian chartered bank at the rate of
interest (if any) then current on similar deposits or, if so directed by written
order of the Bank, shall (i) deposit such moneys in
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the deposit department of the Trustee or any other loan or trust company
authorized to accept deposits under the laws of Canada or a province thereof, or
(ii) invest such moneys in securities issued or guaranteed by the Government of
Canada or a province thereof or in obligations, maturing not more than one year
from the date of investment, of the Bank or of any other Canadian chartered bank
or loan or trust company . Unless an event of default or an other default shall
have occurred and be continuing, all interest or other income received by the
Trustee in respect of such deposits and investments shall belong to the Bank.
SECTION 15.06. Action by Trustee to Protect Interests. The Trustee shall
have power to institute and to maintain such actions and proceedings as it may
consider necessary or expedient to preserve, protect or enforce its interests
and the interests of the Debentureholders.
SECTION 15.07. Trustee not Required to Give Security. The Trustee shall
not be required to give any bond or security in respect of the execution of the
trusts and powers of this Trust Indenture or otherwise in respect of the
premises.
SECTION 15.08. Protection of Trustee. By way of supplement to the
provisions of any law for the time being relating to trustees, it is expressly
declared and agreed as follows:
(1) The Trustee shall not be liable for or by any reason of any statements
of fact or recitals in this Trust Indenture or in the Debentures (except in the
certificate of the Trustee thereon) or required to verify the same, but all such
statements or recitals are and shall be deemed to be made by the Bank.
(2) Nothing herein contained shall impose any obligation on the Trustee to
see to or to require evidence of the registration or filing (or renewal thereof)
of this Trust Indenture or any instrument ancillary or supplemental hereto.
(3) The Trustee shall not be bound to give notice to any person or persons
of the execution hereof.
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(4) The Trustee shall not incur any liability or responsibility whatever
or be in any way responsible for the consequence of any breach on the part of
the Bank of any of the covenants herein contained or of any acts of the agents
or servants of the Bank.
(5) The Trustee, in its personal or any other capacity, may buy, lend upon
and deal in shares in the capital of the Bank and in the Debentures and
generally may contract and enter into financial transactions with the Bank
without being liable to account for any profit made thereby.
SECTION 15.09. Replacement of Trustee. The Trustee may resign its trust
and be discharged from all further duties and liabilities hereunder by giving
to the Bank three months' notice in writing or such shorter notice as the Bank
may accept as sufficient. The Debentureholders by extraordinary resolutions
shall have power at any time to remove the Trustee and to appoint a new Trustee.
In the event of the Trustee resigning or being removed as aforesaid or being
dissolved, becoming bankrupt, going into liquidation or otherwise becoming
incapable of acting hereunder, the Bank shall forthwith appoint a new Trustee
unless a new Trustee has already been appointed by the Debentureholders; but any
new Trustee so appointed by the Bank shall be subject to removal as aforesaid by
the Debentureholders . Any new Trustee appointed under any provision of this
section 15 .09 shall be a corporation authorized to carry on the business of a
trust company in Canada . On any new appointment the new Trustee shall be vested
with the same powers, rights, duties and responsibilities as if it had been
originally named herein as Trustee without any further assurance, conveyance,
act or deed; but there shall be immediately executed, at the expense of the
Bank, all such conveyances or other instruments as may, in the opinion of
counsel, be necessary or advisable for the purpose of assuring the same to the
new Trustee.
SECTION 15.10. Conflict of Interest. The Trustee represents that at the
time of the execution and delivery hereof no material conflict of interest
exists in the Trustee's role as a fiduciary hereunder and agrees that in the
event of a material conflict of interest arising hereafter it will, within
ninety days after ascertaining that it has such material conflict of interest,
either eliminate the same or resign its trust hereunder.
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SECTION 15.11. Acceptance of Trust. The Trustee hereby accepts the trusts
in this Trust Indenture declared and provided for and agrees to perform the same
upon the terms and conditions herein set forth.
ARTICLE SIXTEEN
NOTICES
SECTION 16.01. Notice to Debentureholders. Unless herein otherwise
expressly provided, any notice to be given hereunder to Debentureholders shall
be deemed to be validly given:
(a) to the holders of registered Debentures if such notice is sent
by first class unregistered surface or air mail, postage prepaid,
addressed to such holders at their respective addresses appearing on the
register maintained under Article Four; and if in the case of joint
holders of any Debentures more than one address appears in the register of
such joint holding, such notice shall be addressed only to the first
address so appearing; and
(b) to the holders of unregistered Debentures if such notice is
published once in each of the cities of Xxxxxxxx, Xxxxxxx, Xxxxxxx and
Vancouver, each such publication to be made in a daily newspaper in the
English or French language, or both languages, of general circulation in
the designated cities and approved by the Trustee; provided that in the
case of notice convening a meeting of Debentureholders, the Trustee may
require such additional publications of such notice, in the same or in
other cities or both, as it may deem necessary for the reasonable
protection of the Debentureholders.
Any notice so given by mail shall be deemed to have been given on the day of
mailing. Any notice so given by publication shall be deemed to have been given
when such notice shall have been published once in each of the cities in which
publication thereof was required under the foregoing provisions. In determining
under any provision hereof the date when notice of any, meeting, redemption or
other event must be given, the date of giving the notice shall be included and
the date of the meeting, redemption or other event shall be excluded. Accidental
error or omission in giving notice or accidental failure to mail notice
63
to any Debentureholder shall not invalidate any action or proceeding founded
thereon.
SECTION 16.02. Notice to the Trustee. Any notice to the Trustee under the
provisions of this Trust Indenture shall be valid and effective if delivered to
an officer of the Trustee or if sent by registered mail, postage prepaid,
addressed to the Trustee at its principal office in Montreal, Quebec. Notice by
mail shall be deemed to have been effectively given at the time when in the
ordinary course of mail the same should have reached its destination.
SECTION 16.03 . Notice to the Bank. Any notice to the Bank under the
provisions of this Trust Indenture shall be valid and effective if delivered to
an officer of the Bank or if sent by registered mail, postage prepaid, addressed
to the Bank at 000, xxx Xx-Xxxxxxx, Xxxxxxxx, Xxxxxx to the attention of the
secretary. Notice by mail shall be deemed to have been effectively given at the
time when in the ordinary course of mail the same should have reached its
destination. The Bank may from time to time notify the Trustee of a change in
address which thereafter, until changed by like notice, shall be the address of
the Bank for all purposes of this Trust Indenture.
ARTICLE SEVENTEEN
FORMS OF SERIES 10 DEBENTURES
SECTION 17.01. Form of Temporary Global Debenture. The Series 10
Debentures will initially be represented by the Temporary Global Debenture and
the form of the Temporary Global Debenture and Trustee's certificate shall be
substantially as follow:
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(FORM OF TEMPORARY GLOBAL DEBENTURE)
TEMPORARY GLOBAL DEBENTURE U.S. $250,000,000
BANK OF MONTREAL
(Incorporated under the laws of Canada)
FLOATING RATE DEBENTURES, SERIES 10, DUE 1998
This Temporary Global Debenture and the Debentures evidenced hereby have
not been registered under the United States Securities Act of 1933. Except for
certain sales to branches of United States banks located outside the United
States and to sophisticated institutional investors in the United States,
subject to limitations referred to in the Extel Card dated July 16, 1986
circulated by Extel Statistical Services Ltd. relating hereto ("Qualified U.S.
Purchasers"), neither this Temporary Global Debenture nor any portion hereof may
be offered, sold or delivered, directly or indirectly, in the United States of
America (which term, as used herein, includes its territories and possessions)
or to or for the account of persons ("U.S. Persons") who are residents or
nationals thereof (including the estate of any such person and any corporation
or other entity organized under the laws thereof or any political subdivision
thereof).
This Temporary Global Debenture is an interim Series 10 Debenture without
coupons in respect of a duly authorized issue of Debentures of Bank of Montreal
(the "Bank") designated as specified in the title hereof (the "Series 10
Debentures") limited to an aggregate principal amount of U.S. $250,000,000 and
issued pursuant to an indenture dated as of July 23, 1986 between the Bank and
The Royal Trust Company (the "Trustee"), as trustee for the Debentureholders
(the "Indenture"). This Temporary Global Debenture is exchangeable in whole or
in part upon request of the holder for definitive Debentures in either of the
forms set forth in the Indenture ("Definitive Series 10 Debentures") at the
offices of the Exchange Agent at Xxxxx Xxxxx Xxxxx, 00-00 Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxx on or after (but not before) the Exchange Date; and the Exchange Agent
shall deliver free of charge in full or partial exchange for this Temporary
Global Debenture, Definitive Series 10 Debentures in an aggregate principal
amount equal to the
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principal amount of this Temporary Global Debenture submitted for exchange
provided that there shall have been presented to the Exchange Agent a
certificate or certificates as to beneficial ownership in the forms available at
the aforementioned offices of the Exchange Agent in London, England, to the
effect that the beneficial owners of such Series 10 Debentures are not U.S.
Persons or persons who have purchased such Series 10 Debentures for resale to
any such U .S. Person, or are Qualified U.S. Purchasers.
Except as provided herein, this Temporary Global Debenture must be
exchanged for Definitive Series 10 Debentures before interest can be collected.
Payment of interest upon the Series 10 Debentures due on an Interest
Payment Date occurring prior to the Exchange Date will be made by the Bank to
Xxxxxx Guaranty Trust Company of New York, Brussels office, as operator of the
Euro-clear System ("Euro-clear") and CEDEL S.A. ("CEDEL"). Upon receipt by
Euro-clear and/or CEDEL of a certificate or certificates that as of such
Interest Payment Date the portion of the Temporary Global Debenture on which
interest is to be credited as hereinafter provided either (i) is not
beneficially owned by a U.S. Person or any person who has purchased its interest
in the Temporary Global Debenture for resale to such a U.S. Person or (ii) is
beneficially owned by a Qualified U.S. Purchaser, it will credit such interest
to the respective accounts of the persons for whom it holds this Temporary
Global Debenture from whom it has received such a certificate . On the Exchange
Date, Euro-clear and CEDEL shall pay to the Exchange Agent the amount, if any,
of interest relating to portions of the Temporary Global Debenture with respect
to which no such certificate shall have been received, and any beneficial owner
of a portion of the Temporary Global Debenture who did not receive payment of
the interest due on such Interest Payment Dates prior to the Exchange Date shall
look only to the Exchange Agent for any payment to which such beneficial owner
may be entitled, and all liability of Euro-clear and/or CEDEL with respect to
such payment shall thereupon cease. Upon delivery of each of the Definitive
Series 10 Debentures in exchange for the Temporary Global Debenture (or portions
thereof), the Exchange Agent will pay to such holders of Definitive Series 10
Debentures as did not receive payment of the interest due as aforesaid any
amounts constituting interest in respect of Interest Payment Dates occurring p
rior to the Exchange Date for which interest has been so repaid by Euro-clear or
CEDEL to the Exchange Agent as above provided .
66
In the event that any Interest Payment Date shall occur on or after the
Exchange Date but prior to the exchange of the entire principal amount of the
Temporary Global Debenture for Definitive Series 10 Debentures, interest on such
unexchanged portion shall be paid by the Bank to or to the order of the Trustee
in Montreal on or before the related Interest Payment Date and shall be remitted
by the Trustee to the Exchange Agent and shall be held by the Exchange Agent for
payment together with delivery of the Definitive Series 10 Debentures related
thereto.
This Temporary Global Debenture, until exchanged for Definitive Series 10
Debentures, shall entitle the holder thereof to rank for all purposes as a
Debentureholder (as defined in the Indenture) and otherwise in respect of the
Indenture to the same extent and in the same manner as though the said exchange
had actually been made, except as otherwise provided herein.
The Bank, for value received, hereby acknowledges itself indebted and
promises to pay to the bearer hereof on the Interest Payment Date in July 1998,
or on such earlier date as the principal hereof may become due in accordance
with the provisions of the Indenture, the principal sum of Two Hundred and Fifty
Million Dollars in lawful money of the United States of America (U.S.
$250,000,000) in accordance with the terms and conditions set forth in the
Indenture and the Definitive Series 10 Debentures and to pay interest on the
said principal sum from July 23, 1986 or from such other date on Which the
Temporary Global Debenture is initially issued, whichever is later, twice yearly
on the Interest Payment Dates in January and July in each year at the Rate of
Interest for each Interest Period as determined by the Agent Bank (all as set
forth in and as defined in the Indenture), together with interest on overdue
interest and Tax Indemnity therein mentioned, if applicable, but only upon
presentation and surrender of the Definitive Series 10 Debentures issued in
exchange for this Temporary Global Debenture, or the interest coupons
appertaining thereto as such interest coupons shall severally become due (only
in the case of coupon Definitive Series 10 Debentures), all as provided in the
Indenture and the Definitive Series 10 Debentures . This Temporary Global
Debenture is subject to all the terms and conditions of the Definitive Series 10
Debentures and the provisions contained in the Indenture.
No reference herein to the Indenture and no provision of this Temporary
Global Debenture or of the Indenture shall alter or impair the obligation of the
Bank, which is absolute and unconditional, to the Trustee, to pay the principal
of and interest on this Temporary Global Debenture on the dates and at the
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places and at the rate and in the coin or currency prescribed save that except
as hereinabove provided no principal or interest may be collected on the portion
of this Temporary Global Debenture which remains unexchanged other than by the
Trustee.
This Temporary Global Debenture shall be governed by and construed in
accordance with the laws of the Province of Quebec and the laws of Canada
applicable therein.
This Temporary Global Debenture shall not become obligatory for any
purpose until it is certified by or on behalf of the Trustee.
IN WITNESS WHEREOF Bank of Montreal has caused its corporate seal to be
hereto affixed and this Temporary Global Debenture to be signed by its Chairman
and Secretary and dated July 23, 1986.
BANK OF MONTREAL
By: And:
Secretary Chairman
(Seal)
SCHEDULE OF EXCHANGES FOR DEFINITIVE SERIES 10
DEBENTURES
The following exchanges of a part of this Temporary Global Debenture for
Definitive Series 10 Debentures have been made:--
Part of principal
amount of this Remaining principal
Temporary Global amount of this
Debenture exchanged Temporary Global Notation made by or
for Definitive Series 10 Debenture following on behalf of the
Date made Debentures such exchange Trustee:
------------ ------------------------ -------------------- -------------------
___________________________________________________________________________________________
___________________________________________________________________________________________
___________________________________________________________________________________________
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________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
69
(Form of Trustee's Certificate)
TRUSTEE'S CERTIFICATE
This Temporary Global Debenture is an interim Series 10 Debenture issued
under the Indenture within mentioned .
THE ROYAL TRUST COMPANY
Trustee
By:_______________________________
Authorized Officer
SECTION 17.02. Form of Coupon Debenture. The form of the coupon Debentures
for the Series 10 Debentures, the Trustee's certificate and the interest coupon
appertaining thereto shall be substantially as follows:
(FORM OF COUPON DEBENTURE)
THIS IS NOT A DEPOSIT INSURED UNDER
THE CANADA DEPOSIT INSURANCE CORPORATION ACT
ANY UNITED STATES PERSON WHO HOLDS THIS DEBENTURE WILL BE SUBJECT TO LIMITATIONS
UNDER UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN
SECTIONS 165(j) and 1287(a) OF THE UNITED STATES INTERNAL REVENUE CODE.
Denomination ISIN Series Serial Number
0000000 0000 10
70
BANK OF MONTREAL
(Incorporated under the laws of Canada)
FLOATING RATE DEBENTURES, SERIES 10, DUE 1998
BANK OF MONTREAL (hereinafter called the "Bank"), for value received
hereby acknowledges itself indebted and promises to pay to the bearer hereof on
the Interest Payment Date (as defined in the Indenture) in July 1998, or on such
earlier date as the principal hereof may become due in accordance with the
provisions of the Indenture, the principal sum of ($ ) in lawful money of
the United States of America, on presentation and surrender of this Debenture at
any of the places herein mentioned and to pay interest on the said principal sum
from July 23, 1986 or from such other date on which the Series 10 Debentures are
initially issued, whichever is the later, twice yearly on the Interest Payment
Dates in January and July in each year, commencing with the Interest Payment
Date in January 1987, at the Rate of Interest for each Interest Period as
determined by the Agent Bank (all as set forth and as defined in the Indenture),
together with the Tax Indemnity herein mentioned, if applicable, upon
presentation and surrender of the respective interest coupons appertaining
hereto as they severally become due; and should the Bank at any time make
default in the payment of any principal of or interest on this Debenture or any
Tax Indemnity, to pay interest on the amount in default at the Rate of Interest
applicable during such period of default, in like money, at the same places and
twice yearly on the same Interest Payment Dates, together with Tax Indemnity, if
applicable.
The Series 10 Debentures are issuable in bearer form in the denominations
of U.S. $10,000 and U.S. $250,000, with interest coupons attached ("coupon
Series 10 Debentures") or, at the holder's option, in fully registered form in
denominations of U.S. $10,000 and integral multiples thereof ("registered Series
10 Debentures"). Title to coupon Series 10 Debentures will pass by delivery.
Payment of the principal of, Tax Indemnity, if any, and interest on the
coupon Series 10 Debentures will be made at the specified offices of any of the
paying agents outside of the United States as the Bank shall from time to time
appoint pursuant to the Indenture and may, at the holder's option and subject to
applicable laws and regulations, be made by cheque or bank draft in U.S.
71
dollars drawn on, or by transfer to a U.S. dollar account maintained by
the holder with, a bank in New York City. In the event that the full amount of
the coupon Series 10 Debentures and interest coupons appertaining thereto may
not be so paid because such payments would be illegal or effectively precluded
due to the imposition of exchange controls or other similar restrictions on the
full payment or receipt of principal or interest in U.S. dollars, then the Bank
shall designate a paying agent in New York City from which such payments may be
made. The paying agents initially appointed by the Bank outside of the United
States are the main offices of Bank of Montreal in London (the "principal paying
agent"), Bank of Montreal in Montreal, Xxxxxx Guaranty Trust Company of New York
in Brussels, Union de Banques Suisses (Luxembourg) S.A. in Luxembourg and Union
Bank of Switzerland in Zurich. The Bank reserves the right to terminate the
appointment of any paying agent and to appoint other such paying agents upon the
terms and subject to the conditions provided in the Indenture.
If the Bank is required to withhold or deduct any amount from the
principal of or interest (including interest on amounts in default) on this
Debenture on account of any present or future taxes, duties, assessments or
governmental charges of whatsoever nature imposed or levied by or on behalf of
the Government of Canada or any province or other political subdivision thereof
or any authority or agency therein or thereof having power to tax, the Bank
shall pay to the holder hereof such additional amounts ("Tax Indemnity") as will
result in the payment to the holder of this Debenture or to the holder of the
respective coupons appertaining hereto of the amount which would otherwise have
been payable in respect of this Debenture or such coupons; provided, however,
that no Tax Indemnity shall be payable with respect to this Debenture or any
coupon: (a) to a holder who is liable to tax thereon by reason of his being
connected with Canada otherwise than merely by the holding or ownership of this
Debenture or any coupon, or (b) if presented for payment more than 15 days after
the Relevant Date (as hereinafter defined), except to the extent that such
holder would have been entitled to Tax Indemnity on presenting the same for
payment within such period of 15 days. For the foregoing purpose, the "Relevant
Date" means the later of: (i) the date on which the payment in respect of this
Debenture or any coupon appertaining hereto first becomes due and payable, and
(ii) if the full amount of the moneys payable on such date has not been received
prior to such date by the principal paying agent in London or by the Trustee,
the date on
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which notice is duly given to the holders of Series 10 Debentures that such
moneys have been so received.
The Series 10 Debentures, of which this is one, are issued pursuant to an
indenture dated as of July 23, 1986 between the Bank and The Royal Trust Company
(the "Trustee"), as trustee for the Debentureholders (the "Indenture"). The
Series 10 Debentures, in the event of the insolvency or winding-up of the Bank,
rank equally and rateably with all other debentures of the Sank from time to
time issued and outstanding under the Indenture, an indenture dated as of April
26, 1984, an indenture dated as of February 1, 1978 and indentures supplemental
thereto, and a trust agreement dated as of April 1, 1972 and agreements
supplemental thereto. As provided in the Indenture and in the Bank Act (Canada)
payment of all amounts owing hereunder is subordinated to the deposit
liabilities and all other liabilities of the Bank other than those ranking
equally with or subordinate to the Series 10 Debentures. Reference is made to
the Indenture for a further statement of the rights of the holders of Series 10
Debentures, of the Bank and of the Trustee to the same effect as if the
provisions of the Indenture were set forth herein in full. A copy of the
Indenture may be inspected at the principal office of the Trustee in Montreal or
at the main offices of the paying agents referred to herein.
The Series 10 Debentures will not be redeemable on or before the Interest
Payment Date in July 1991. After the Interest Payment Date in July 1991, the
Series 10 Debentures may be redeemed at the option of the Bank, in whole or in
part, on any Interest Payment Date, on not less than 30 days' notice, at a price
equal to the principal amount thereof together with unpaid interest accrued to
the date fixed for redemption plus Tax Indemnity, if applicable.
The Indenture provides for the creation of a segregated fund (the "Fund")
to be held by the Trustee. Unless the Series 10 Debentures have been accelerated
upon the occurrence of an event of default or except as otherwise provided in
the Indenture with respect to redemption at the option of the Bank, the
principal of the Series 10 Debentures shall be payable prior to their stated
final maturity date solely from funds in the Fund. The Fund has been created for
certain United States bank regulatory purposes and, although it is expected to
provide a source of funds for the payment of the Series 10 Debentures, the Fund
will not constitute security for the Series 10 Debentures.
The Indenture provides that payment of principal of the Series 10
Debentures may be accelerated only in case of certain events involving the
insolvency or winding-up of the Bank. There is no right of acceleration in the
73
case of a default in the performance of any covenant of the Bank in the
Indenture or in the Series 10 Debentures, including payment of interest on the
Series 10 Debentures by the Bank.
The Indenture provides also, among other things, for:(a)the exchange of
coupon Series 10 Debentures for registered Series 10 Debentures or registered
Series 10 Debentures for coupon Series 10 Debentures, provided that neither the
Bank nor the Trustee will be required to make an exchange if as a result thereof
it would incur adverse consequences under United States tax law; and (b) the
holding of meetings of Debentureholders and for making binding on all
Debentureholders certain decisions taken thereat.
Any notice, including notice of redemption, to the holders of the coupon
Series 10 Debentures shall be given by publication once in one leading London
daily newspaper or, if that is not possible, in one other leading English
language daily newspaper of general circulation in Europe.
The Bank and the Trustee may deem and treat the bearer hereof and the
bearer of any coupon appertaining to this Series 10 Debenture as the absolute
owner thereof for all purposes and neither the Bank nor the Trustee shall be
affected by notice to the contrary.
The Indenture, this Debenture and the coupons appertaining hereto shall be
governed by and construed in accordance with the laws of the Province of Quebec
and the laws of Canada applicable therein.
This Debenture and the coupons appertaining hereto shall not become
obligatory for any purpose until this Debenture is certified by or on behalf of
the Trustee for the time being under the Indenture.
IN WITNESS WHEREOF this Debenture has been duly executed, the corporate
seal of the Bank affixed hereon and dated as of July 23, 1986.
BANK OF MONTREAL
By: And:
Secretary Chairman
(Seal)
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(Form of Trustee's Certificate)
TRUSTEE'S CERTIFICATE
This Debenture is one of the Series 10 Debentures issued under the
Indenture within mentioned.
THE ROYAL TRUST COMPANY
Trustee
By_______________________________
Authorized Officer
(form of Interest Coupon)
(Front of Interest Coupon)
BANK OF MONTREAL will pay to the bearer on the Interest Payment Date in
January (July) 19 , unless the undermentioned Debenture shall have been
previously called for redemption and payment thereof duly provided for, the
Interest Amount determined by the Agent Bank which will include Tax Indemnity,
if applicable, at any of the places herein referred to, being one of the twice
yearly interest payments on its Floating Rate Debenture, Series 10, Due 1998,
referred to by serial number below. Payment as aforesaid will be made at the
specified office of any of the paying agents outside of the United States
appointed by the Bank from time to time by cheque or bank draft in United States
dollars drawn on, or by transfer to a United States dollar account maintained by
the holder with, a bank in New York City, or as otherwise provided in the
Indenture. The specified offices of the paying agents initially appointed are
set out on the reverse hereof.
___________________________
Secretary
This is not a deposit insured under the Canada Deposit Insurance
Corporation Act.
75
Any United States person who holds this obligation will be subject to
limitations under the United States income tax laws, including the limitations
provided in Sections 165(j) and 1287(a) of the Internal Revenue Code.
(Coupon No.) (Denomination) (ISIN) (Series) (Serial Number)
NOTE: The phrase "unless the undermentioned Debenture shall have been
previously called for redemption and payment thereof duly provided
for" shall appear on those coupons maturing after the Interest
Payment Date in July 1991.
(Reverse of Interest Coupon)
PAYING AGENTS
Bank of Montreal Bank of Montreal
0 Xxxxx Xxxxxxxx Xxxxxx 119 St . Xxxxx Xxxxxx
Xxxxxx XX0X 0XX Xxxxxxxx, Xxxxxx X0X 0X0
(Principal Paying Agent)
Union Bank of Switzerland Union de Bangues Suisses (Luxembourg) S.A.
Xxxxxxxxxxxxxx 00 00-00 Xxxxx xxx
0000 Xxxxxx Xxxxxxxxxx
Xxxxxx Guaranty Trust Company of New York
Xxxxxx xxx Xxxx 00
X-0000 Xxxxxxxx
SECTION 17.03. Form of Registered Debenture. The form of the registered
Debenture for the Series 10 Debentures, the Trustee's certificate and the
transfer form thereon shall be substantially as follows:
(FORM OF REGISTERED DEBENTURE)
THIS IS NOT A DEPOSIT INSURED UNDER
THE CANADA DEPOSIT INSURANCE CORPORATION ACT
THIS DEBENTURE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933 AND MAY NOT BE OFFERED OR SOLD EXCEPT IN COMPLIANCE WITH SUCH ACT AND THE
REQUIREMENTS OF THE INDENTURE REFERRED
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TO BELOW SPECIAL RESTRICTIONS MAY APPLY TO THE REGISTRATION OF TRANSFER OF THIS
DEBENTURE AND TO THE EXCHANGE OF THIS DEBENTURE FOR A COUPON DEBENTURE.
Denomination ISIN Series Serial Number
------------ ---- ------ -------------
0000000 0000 10
BANK OF MONTREAL
(Incorporated under the laws of Canada )
FLOATING RATE DEBENTURES, SERIES 10, DUE 199 8
BANK OF MONTREAL (hereinafter called the "Bank"), for value received
hereby acknowledges itself indebted and promises to pay to or registered
assigns, on the Interest Payment Date (as defined in the Indenture) in July
1998, or on such earlier date as the principal hereof may become due in
accordance with the provisions of the Indenture, the principal sum of ($ )
in lawful money of the United States of America, on presentation and surrender
of this Debenture at the places herein mentioned and to pay interest on the said
principal amount from July 23, 1986, or from such other date on which the Series
10 Debentures are initially issued or from the last Interest Payment Date to
which interest shall have been paid or made available for payment on the
outstanding Series 10 Debentures, whichever is the latest, twice yearly on the
Interest Payment Dates in January and July in each year, commencing with the
Interest Payment Date in January 1987, at the Rate of Interest for each Interest
Period as determined by the Agent Bank (all as set forth and as defined in the
Indenture), together with the Tax Indemnity herein mentioned, if applicable; and
should the Bank at any time make default in the payment of any principal of or
interest on this Debenture or any Tax Indemnity, to pay interest on the amount
in default at the Rate of Interest applicable during such period of default, in
like money, at the same places and twice yearly on the same Interest Payment
Dates, together with Tax Indemnity, if applicable.
The Series 10 Debentures are issuable in bearer form in the denominations
of U.S. $10,000 and U.S. $250,000, with interest coupons
77
attached ("coupon Series 10 Debentures") or, at the holder's option, in fully
registered form in denominations of U.S. $10,000 and integral multiples thereof
("registered Series 10 Debentures").
Payment of interest and Tax Indemnity, if any, will be made to the holder
hereof on the applicable record date (except at final maturity or on redemption
when interest may, at the option of the Bank, be paid on surrender hereof) by
cheque or bank draft in U.S. dollars drawn on a bank in New York City mailed to
the holder at such holder's registered address, or, at the holder's option, by
transfer to a U.S. dollar account maintained by the holder with a bank in New
York City. Payment of the principal of this Debenture will be made against the
surrender hereof at the specified offices of any of the paying agents in New
York City, Montreal or any additional paying agents designated therefor by the
Bank pursuant to the Indenture and will be made by a cheque or bank draft in U.S
dollars drawn on, or by transfer to a U.S. dollar account maintained by the
holder with, a bank in New York City.
The paying agent initially appointed by the Bank for the registered Series
10 Debentures is the main office of Bank of Montreal Trust Company in New York
City. In addition, the Bank has initially appointed the following as paying
agents for the Series 00 Xxxxxxxxxx xxxxxxx xx xxx Xxxxxx Xxxxxx: the main
offices of Bank of Montreal in London (the "principal paying agent"), Bank of
Montreal in Montreal, Xxxxxx Guaranty Trust Company of New York in Brussels,
Union de Banques Suisses (Luxembourg) S.A. in Luxembourg and Union Bank- of
Switzerland in Zurich. The Bank reserves the right to terminate the appointment
of any paying agent and to appoint other such paying agents upon the terms and
subject to the conditions provided in the Indenture.
If the Bank is required to withhold or deduct any amount from the
principal of or interest (including interest on amounts in default) on this
Debenture on account of any present or future taxes, duties, assessments or
governmental charges of whatsoever nature imposed or levied by or on behalf of
the Government of Canada or any province or other political subdivision thereof
or any authority or agency therein or thereof having power to tax, the Bank
shall pay to the registered holder hereof such additional amounts ("Tax
Indemnity") as will result in the payment to the registered holder of this
Debenture of the amount which would otherwise have been payable in respect of
the principal of or interest on this Debenture; provided, however, that no Tax
Indemnity shall be payable with respect to this Debenture: (a) to a holder who
78
is liable to tax thereon by reason of his being connected with Canada otherwise
than merely by the holding or ownership of this Debenture, or (b) if presented
for payment more than 15 days after the Relevant Date (as hereinafter defined),
except to the extent that such holder would have been entitled to Tax Indemnity
on presenting this Debenture for payment within such period of 15 days. For the
foregoing purpose, the "Relevant Date" means the later of: (i) the date on
which the payment in respect of this Debenture first becomes due and payable,
and (ii) if the full amount of the moneys payable on such date has not been
received prior to such date by the principal paying agent in London or by the
Trustee, the date on which notice is duly given to the holders of Series 10
Debentures that such moneys have been so received.
The Series 10 Debentures, of which this is one, are issued pursuant to an
indenture dated as of July 23, 1986 between the Bank and The Royal Trust Company
(the "Trustee"), as trustee for the Debentureholders (the "Indenture"). The
Series 10 Debentures, in the event of the insolvency or winding-up of the Bank,
rank equally and rateably with all other debentures of the Bank from time to
time issued and outstanding under the Indenture, an indenture dated as of April
26, 1984, an indenture dated as of February 1, 1978 and indentures supplemental
thereto, and a trust agreement dated as of April 1, 1972 and agreements
supplemental thereto . As provided in the Indenture and in the Bank Act (Canada)
payment of all amounts owing hereunder is subordinated to the deposit
liabilities and all other liabilities of the Bank other than those ranking
equally with or subordinate to the Series 10 Debentures. Reference is made to
the Indenture for a further statement of the rights of the holders of Series 10
Debentures, of the Bank and of the Trustee to the same effect as if the
provisions of the Indenture were set forth herein in full. A copy of the
Indenture may be inspected at the principal office of the Trustee in Montreal or
at the main offices of the paying agents referred to herein.
The Series 10 Debentures will not be redeemable on or before the Interest
Payment Date in July 1991. After the Interest Payment Date in July 1991, the
Series 10 Debentures may be redeemed at the option of the Bank, in whole or in
part, on any Interest Payment Date, on not less than 30 days' notice, at a price
equal to the principal amount thereof together with unpaid interest accrued to
the date fixed for redemption plus Tax Indemnity, if applicable.
The Indenture provides for the creation of a segregated fund (the "Fund")
to be held by the Trustee. Unless the Series 10 Debentures have been accelerated
upon the occurrence of an event of default or except as otherwise
79
provided in the Indenture with respect to redemption at the option of the Bank,
the principal of the Series 10 Debentures shall be payable prior to their
stated final maturity date solely from funds in the Fund. The Fund has been
created for certain United States bank regulatory purposes and, although it is
expected to provide a source of funds for the payment of the Series 10
Debentures, the Fund will not constitute security for the Series 10
Debentures.
The Indenture provides that payment of principal of the Series 10
Debentures may be accelerated only in case of certain events involving the
insolvency or winding-up of the Bank. There is no right of acceleration in the
case of a default in the performance of any covenant of the Bank in the
Indenture or in the Series 10 Debentures, including payment of interest on the
Series 10 Debentures by the Bank.
The Indenture provides also, among other things, for: (a) the exchange of
coupon Series 10 Debentures for registered Series 10 Debentures or registered
Series 10 Debentures for coupon Series 10 Debentures, provided that neither the
Bank nor the Trustee will be required to make an exchange if as a result thereof
it would incur adverse consequences under United States tax law; and (b) the
holding of meetings of Debentureholders and for making binding on all
Debentureholders certain decisions taken thereat.
Notices to holders of registered Series 10 Debentures of redemption or of
any variation of the paying agent in New York City will be given by first class
mail. All other notices shall be given by publication once in one leading London
daily newspaper or, if that is not possible, in one other leading English
language daily newspaper of general circulation in Europe .
This Debenture shall be transferable only at the principal office of the
Trustee in Montreal and at the principal office of Bank of Montreal Trust
Company in New York City and it may be transferred only by the registered holder
hereof in person or his attorney duly authorized in writing.
The Indenture and this Debenture shall be governed by and construed in
accordance with the laws of the Province of Quebec and the laws of Canada
applicable therein.
This Debenture shall not become obligatory for any purpose until this
Debenture is certified by or on behalf of the Trustee for the time being under
the Indenture.
80
IN WITNESS WHEREOF this Debenture has been duly executed, the corporate
seal of the Bank affixed hereon and dated , 19 .
BANK OF MONTREAL
By: And:
Secretary Chairman
(Seal)
(Form of Trustee's Certificate)
TRUSTEE'S CERTIFICATE
This Debenture is one of the Series 10 Debentures issued under the
Indenture within mentioned.
THE ROYAL TRUST COMPANY
Trustee
By______________________________
Authorized Officer
(Form of Transfer)
FOR VALUE RECEIVED, the undersigned hereby assign(s) and transfer(s)
unto____ the within Debenture, together with the principal thereof and all
accrued interest thereon, hereby irrevocably constituting and appointing __
attorney to transfer the said Debenture on the registers maintained for that
purpose with full power of substitution in the premises.
Dated________________________19______
In the presence of
_____________________________________
_________________
81
ARTICLE EIGHTEEN
EXECUTION
SECTION 18.01. Counterparts and Formal Date. This Trust Indenture may be
executed in several counterparts, each of which so executed shall be deemed to
be an original, and such counterparts together shall constitute one and the same
instrument and notwithstanding their date of execution shall be deemed to bear
date as of July 23, 1986.
IN WITNESS WHEREOF the parties hereto have declared that it is their
express wish that these presents and all other documents related hereto be in
the English language and have executed these presents under their respective
corporate seals and the hands of their proper officers in that behalf.
BANK OF MONTREAL -- BANQUE DE MONTREAL
By: [ILLEGIBLE]
--------------------------
Vice President
(Seal) And: [ILLEGIBLE]
--------------------------
Assistant Secretary (Seal)
THE ROYAL TRUST COMPANY -- COMPAGINE TRUST ROYAL
By: [ILLEGIBLE]
--------------------------
Authorized Officer
And: [ILLEGIBLE]
--------------------------
Authorized Officer (Seal)
82
