Dated as of the 2nd day of May, 1967
---------------------------------------------
THE TORONTO-DOMINION BANK
- and -
CANADA PERMANENT TRUST COMPANY
---------------------------------------------
TRUST INDENTURE
---------------------------------------------
XxXxxxxx & XxXxxxxx
Xxxxxx, Xxxxxx, MacKenzie, Williston & Xxxxxxxxxx
TABLE OF CONTENTS
PAGE
ARTICLE I INTERPRETATION..........................................................................................2
SECTION 1.01...................................................................................................2
SECTION 1.02...................................................................................................6
SECTION 1.03...................................................................................................6
SECTION 1.04...................................................................................................6
ARTICLE II THE DEBENTURES.........................................................................................6
SECTION 2.01 LIMITATION OF ISSUE.......................................................................6
SECTION 2.02 ISSUANCE IN SERIES........................................................................6
SECTION 2.03 DIFFERENCES IN DEBENTURES OF ANY SERIES...................................................7
SECTION 2.04 ISSUE OF DEBENTURES AS PART OF SERIES PREVIOUSLY ISSUED...................................7
SECTION 2.05 FORM OF DEBENTURES OF 1987 SERIES.........................................................7
SECTION 2.06 FORM OF DEBENTURES OF OTHER SERIES........................................................7
SECTION 2.07 DEBENTURES ENGRAVED, PRINTED OR LITHOGRAPHED..............................................7
SECTION 2.08 SIGNATURE OF DEBENTURES AND COUPONS.......................................................8
SECTION 2.09 CERTIFICATION.............................................................................8
SECTION 2.10 LIABILITY OF TRUSTEE......................................................................8
SECTION 2.11 COUPONS FOR INTEREST - INTERIM DEBENTURES.................................................8
SECTION 2.12 DATE FROM WHICH DEBENTURES BEAR INTEREST..................................................8
SECTION 2.13 INTERIM DEBENTURES AND TRUSTEE'S CERTIFICATES.............................................9
SECTION 2.14 ISSUE OF DEBENTURES.......................................................................9
SECTION 2.15 DEBENTURES NEGOTIABLE UNLESS REGISTERED...................................................9
SECTION 2.16 REGISTRATION OF FULLY REGISTERED DEBENTURES..............................................10
SECTION 2.17 REGISTRATION OF UNREGISTERED DEBENTURES..................................................10
SECTION 2.18 REGISTERS OPEN TO INSPECTION.............................................................11
SECTION 2.19 TRANSFER OF REGISTERED DEBENTURES........................................................11
SECTION 2.20 CLOSING OF REGISTERS.....................................................................11
SECTION 2.21 CLOSING OF REGISTRIES AND TRANSFER OFFICES...............................................11
SECTION 2.22 NOT CHARGED WITH NOTICE OF TRUST.........................................................12
SECTION 2.23 PERSONS ENTITLED TO PAYMENT OF PRINCIPAL.................................................12
SECTION 2.24 PAYMENT OF INTEREST ON FULLY REGISTERED DEBENTURES.......................................12
SECTION 2.25 BEARER OF UNREGISTERED DEBENTURE OR COUPON...............................................12
SECTION 2.26 FREE FROM ALL EQUITIES...................................................................12
SECTION 2.27 DEBENTURES REGISTERED IN MORE THAN ONE NAME..............................................13
SECTION 2.28 RE-ISSUE OF DEBENTURES...................................................................13
SECTION 2.29 MUTILATION, LOSS OR DESTRUCTION OF DEBENTURES............................................13
SECTION 2.30 EXCHANGE OF DEBENTURES...................................................................14
SECTION 2.31 CHARGE ON EXCHANGE, REGISTRATION, TRANSFER...............................................14
SECTION 2.32 CANCELLATION AND DESTRUCTION OF DEBENTURES AND COUPONS...................................14
SECTION 2.33 OPTION OF HOLDER AS TO PLACE OF PAYMENT..................................................15
-ii-
ARTICLE III SUBORDINATION OF DEBENTURES..........................................................................15
SECTION 3.01 DEBENTURES SUBORDINATED TO SENIOR INDEBTEDNESS...........................................15
SECTION 3.02 OTHER RIGHTS OF DEBENTUREHOLDERS NOT IMPAIRED............................................15
SECTION 3.03 FURTHER ASSURANCES OF SUBORDINATION......................................................15
ARTICLE IV ISSUANCE OF DEBENTURES................................................................................16
SECTION 4.01 6% DEBENTURES DUE MAY 2, 1987............................................................16
SECTION 4.02 ISSUE OF 1987 DEBENTURES.................................................................16
SECTION 4.03 1987 DEBENTURES NOT TO BE ISSUED ON OR AFTER JULY 1, 1967................................16
SECTION 4.04 ADDITIONAL DEBENTURES....................................................................17
SECTION 4.05 NO ADDITIONAL DEBENTURES TO BE ISSUED DURING DEFAULT.....................................18
SECTION 4.06 CONCERNING RESOLUTIONS, CERTIFICATES AND REPORTS.........................................18
SECTION 4.07 CHARGES ON EXCHANGE OF 1987 DEBENTURES...................................................18
ARTICLE V REDEMPTION AND PURCHASE OF DEBENTURES..................................................................18
SECTION 5.01 GENERAL..................................................................................18
SECTION 5.02 RESTRICTION ON REDEMPTION AND PAYMENT OF 1987 DEBENTURES.................................18
SECTION 5.03 REDEMPTION OF 1987 DEBENTURES............................................................19
SECTION 5.04 PARTIAL REDEMPTION OF DEBENTURES.........................................................19
SECTION 5.05 NOTICE OF REDEMPTION.....................................................................20
SECTION 5.06 DEBENTURES DUE ON REDEMPTION DATES.......................................................20
SECTION 5.07 DEPOSIT OF REDEMPTION MONEYS.............................................................21
SECTION 5.08 FAILURE TO SURRENDER DEBENTURES CALLED FOR REDEMPTION....................................21
SECTION 5.09 CANCELLATION AND DESTRUCTION OF DEBENTURES AND COUPONS...................................22
SECTION 5.10 SURRENDER OF DEBENTURES FOR CANCELLATION.................................................22
SECTION 5.11 LIQUIDATION, ENFORCEMENT PROCEEDINGS, ETC................................................22
SECTION 5.12 PURCHASE OF DEBENTURES...................................................................22
ARTICLE VI SINKING FUND FOR DEBENTURES OF THE 1987 SERIES........................................................23
SECTION 6.01 PROVISION OF SINKING FUND................................................................23
SECTION 6.02 SINKING FUND CREDIT......................................................................23
SECTION 6.03 ELECTION BY BANK TO APPLY SINKING FUND CREDIT............................................23
SECTION 6.04 ELECTION BY BANK TO REDEEM DEBENTURES....................................................24
SECTION 6.05 PURCHASE OR REDEMPTION BY TRUSTEE........................................................24
SECTION 6.06 SINKING FUND REDEMPTION PRICE............................................................25
SECTION 6.07 TRUSTEE'S EXPENSES.......................................................................25
SECTION 6.08 CANCELLATION.............................................................................25
SECTION 6.09 TERMINATION OF FUND......................................................................25
SECTION 6.10 TRUSTEE'S DECISION FINAL.................................................................25
ARTICLE VII CERTAIN COVENANTS OF THE BANK........................................................................26
SECTION 7.01 TO PAY PRINCIPAL, PREMIUM AND INTEREST...................................................26
SECTION 7.02 TO CARRY ON BUSINESS, ETC................................................................26
SECTION 7.03 TO PAY TRUSTEE'S REMUNERATION............................................................26
SECTION 7.04 RESTRICTION ON OTHER INDEBTEDNESS........................................................26
-iii-
ARTICLE VIII REMEDIES IN CASE OF DEFAULT.........................................................................26
SECTION 8.01 ACCELERATION OF MATURITY ON DEFAULT......................................................26
SECTION 8.02 DEBENTURES NOT TO BE PAYABLE BEFORE SPECIFIED DATE.......................................28
SECTION 8.03 PROVISION FOR REDEMPTION OR PAYMENT OF DEBENTURES
SUBJECT TO RESTRICTIONS UNDER SECTIONS 5.11 OR 8.02......................................28
SECTION 8.04 WAIVER OF DEFAULT........................................................................29
SECTION 8.05 RIGHT OF TRUSTEE TO ENFORCE PAYMENT......................................................29
SECTION 8.06 APPLICATION OF MONEYS BY TRUSTEE.........................................................30
SECTION 8.07 APPLICATION OF MONEYS WHERE RESTRICTIONS APPLY BY REASON OF SECTION 8.02.................30
SECTION 8.08 BANK NOT TO EXTEND TIME FOR PAYMENT OF INTEREST..........................................31
SECTION 8.09 TRUSTEE MAY DEFER DISTRIBUTION...........................................................31
SECTION 8.10 NOTICE OF PAYMENT BY TRUSTEE.............................................................31
SECTION 8.11 RECEIPT OF DEBENTUREHOLDER GOOD DISCHARGE................................................31
SECTION 8.12 TRUSTEE MAY DEMAND PRODUCTION OF DEBENTURES..............................................32
SECTION 8.13 REMEDIES CUMULATIVE......................................................................32
SECTION 8.14 JUDGMENT AGAINST THE BANK................................................................32
ARTICLE IX CONSOLIDATION AND AMALGAMATION........................................................................32
SECTION 9.01 SUCCESSOR BANK...........................................................................32
SECTION 9.02 SUCCESSOR TO POSSESS POWERS OF THE BANK..................................................33
ARTICLE X INVESTMENT OF TRUST FUNDS..............................................................................33
SECTION 10.01.................................................................................................33
ARTICLE XI SUITS BY DEBENTUREHOLDERS AND TRUSTEE.................................................................34
SECTION 11.01 DEBENTUREHOLDERS MAY NOT XXX.............................................................34
SECTION 11.02 TRUSTEE NOT REQUIRED TO POSSESS DEBENTURES...............................................34
SECTION 11.03 TRUSTEE MAY INSTITUTE ALL PROCEEDINGS....................................................34
SECTION 11.04 DEBENTUREHOLDERS MAY WAIVE DEFAULT.......................................................34
SECTION 11.05 IMMUNITY OF OFFICERS, SHAREHOLDERS AND DIRECTORS.........................................35
ARTICLE XII NEW TRUSTEE..........................................................................................35
SECTION 12.01 APPOINTMENT OF NEW TRUSTEE...............................................................35
SECTION 12.02 TRANSFER OF POWERS TO NEW TRUSTEE........................................................35
SECTION 12.03 AMALGAMATION ETC. OF TRUSTEE.............................................................36
ARTICLE XIII NON-PRODUCTION OF DEBENTURES........................................................................36
SECTION 13.01.................................................................................................36
ARTICLE XIV NOTICES..............................................................................................36
SECTION 14.01 NOTICE TO BANK...........................................................................36
SECTION 14.02 NOTICE TO DEBENTUREHOLDERS...............................................................36
SECTION 14.03 NOTICE TO THE TRUSTEE....................................................................37
-iv-
ARTICLE XV DEBENTUREHOLDERS' MEETINGS............................................................................37
SECTION 15.01.................................................................................................37
SECTION 15.02 POWERS EXERCISABLE BY EXTRAORDINARY RESOLUTION...........................................40
SECTION 15.03 EXTRAORDINARY RESOLUTION DEFINED.........................................................42
SECTION 15.04 DECLARATION BY CHAIRMAN OF RESULT OF VOTE................................................42
SECTION 15.05 MINUTES..................................................................................42
SECTION 15.06 EXTRAORDINARY RESOLUTION BY SIGNED INSTRUMENT............................................43
SECTION 15.07 COMMITTEE FOR DEBENTUREHOLDERS...........................................................43
ARTICLE XVI ADMINISTRATION OF THE TRUSTS AND PROTECTION OF THE TRUSTEE...........................................43
SECTION 16.01.................................................................................................43
SECTION 16.02 DOCUMENTS, CERTIFICATES, OPINIONS........................................................46
ARTICLE XVII EVIDENCE OF RIGHTS OF DEBENTUREHOLDERS..............................................................46
SECTION 17.01.................................................................................................46
ARTICLE XVIII SUPPLEMENTAL INDENTURES............................................................................47
SECTION 18.01.................................................................................................47
ARTICLE XIX ACCEPTANCE OF TRUSTS BY TRUSTEE......................................................................48
SECTION 19.01.................................................................................................48
ARTICLE XX COUNTERPARTS..........................................................................................48
SECTION 20.01.................................................................................................48
THIS INDENTURE made as of the 2nd day of May, 1967
B E T W E E N
THE TORONTO-DOMINION BANK, a Canadian chartered bank
(hereinafter called the "Bank").
OF THE FIRST PART,
- and -
CANADA PERMANENT TRUST COMPANY, a trust company
subject to the jurisdiction of the Parliament of
Canada (hereinafter called the "Trustee"),
OF THE SECOND PART,
WITNESSETH THAT:
WHEREAS the Bank is desirous of raising money for its corporate and
lawful purposes and with a view to so doing is desirous of creating and issuing
from time to time Debentures to be constituted in the manner hereinafter set
out;
AND WHEREAS under the provisions of the Bank Act the Bank may borrow
money by the issue of bank debentures payable in Canadian currency and issued in
accordance with the provisions of Section 77 of the Bank Act;
AND WHEREAS all necessary by-laws and resolutions of the directors of
the Bank have been duly enacted and passed and other proceedings taken and
conditions complied with to make the creation and issue of the Debentures
proposed to be issued hereunder and this indenture and the execution thereof
legal and valid and binding on the Bank in accordance with the laws relating to
the Bank and with all other laws and regulations in that behalf;
AND WHEREAS the foregoing recitals are made as representations and
statements of fact by the Bank and not by the Trustee;
NOW THEREFORE THIS INDENTURE WITNESSETH AND IT IS HEREBY COVENANTED, AGREED AND
DECLARED as follows:
- 2 -
ARTICLE I
INTERPRETATION
SECTION 1.01
The terms defined in this Section 1.01 (except as in this
indenture otherwise expressly provided or unless the context otherwise requires)
for all purposes of this indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section 1.01, namely:
(a) "Additional Debentures" means any Debentures in addition to
the Debentures of the 1987 Series issued under the provisions
of Section 4.04;
(b) "Bank" means The Toronto-Dominion Bank and subject to the
provisions of Article IX shall also include its successors and
assigns;
(c) "Bank Act" means the Bank Act, Statutes of Canada, 1966-67,
Chapter 87 and any statute hereafter enacted in substitution
therefor and such Act and any such statute as it may hereafter
be amended from time to time;
(d) "bank debentures" means instruments evidencing unsecured
indebtedness of the Bank payable in Canadian currency and
issued in accordance with the provisions of Section 77 of the
Bank Act, and includes the Debentures;
(e) "Counsel" means any barrister or solicitor or firm of
barristers or solicitors retained by the Trustee or retained
by the Bank and approved by the Trustee;
(f) "Debentures" means the debentures of the Bank issued or to be
issued hereunder for the time being outstanding and entitled
to the benefits hereof;
(g) "1987 Debentures" or "Debentures of the 1987 Series" means the
$12,500,000 principal amount of 6% Debentures due May 2, 1987
hereinafter referred to;
(h) "debentureholders" or "holders" means, as regards registered
Debentures, the several persons for the time being entered in
the register or registers hereinafter mentioned as holders of
any of the Debentures and, as regards unregistered Debentures,
the bearers thereof for the time being;
(i) "directors" means the board of directors of the Bank or
whenever duly empowered the executive committee, if any, of
the board of directors of the Bank, for the time being, and
reference without more to action by the directors or by the
board of directors shall mean action by the directors as a
board or by the executive committee as such;
(j) "Indebtedness" of the Bank at any time includes all
obligations which in accordance with generally accepted
accounting practice would be included in determining the total
liabilities of the Bank at such time and includes without
limitation:
- 3 -
(i) all deposit liabilities of the Bank;
(ii) all liabilities of the Bank to the Bank of Canada;
(iii) all liabilities of the Bank under or in respect of
acceptances, guarantees and letters of credit;
(iv) all liabilities or obligations of the Bank with
respect to:
(A) any funds collected by it,
(B) any cheque, note, money order, receipt,
draft or xxxx of exchange issued, accepted
or endorsed by the Bank,
(C) any obligation of the Bank to purchase or
repurchase securities or loans, or any
interest or participation in any thereof,
(D) any lease of real or personal property,
purchase money security agreement or similar
instrument or any other obligation,
undertaking or agreement relating to real
or personal property,
(E) any guarantee or similar obligation which
may be incidental or usual in carrying on
the business of the Bank or which may
otherwise be permitted by law including the
guarantee of indebtedness of any
corporation in which the Bank has a
financial interest,
(F) any transaction in the nature of an
extension of credit, whether in the form of
a commitment, guarantee or otherwise,
undertaken by the Bank for the account of a
third party,
(G) any transaction in which the Bank acts
solely in an agency capacity, and
(H) bank debentures;
(k) "Long Term Debt" means all Indebtedness for borrowed money,
whether secured or unsecured, having a final maturity (or
which is renewable or extendible at the option of the Bank for
a period ending) more than ten years after the date of
creation thereof, notwithstanding the fact that payments in
respect of the principal thereof are required to be made by
the Bank less than ten years after the date of the creation
thereof;
Notwithstanding the foregoing, the term
"Long Term Debt" shall not include any liability or obligation
of the Bank with respect to (i) any deposit liability of the
Bank or any liability of the Bank with respect to which the
Bank is required to maintain cash reserves under the
provisions of the Bank Act, (ii) any liability to the Bank of
Canada, (iii) any acceptance, guarantee or letter of credit,
(iv) any cheque, note, money order, receipt, draft or xxxx of
exchange issued,
- 4 -
accepted, or endorsed by the Bank, (v) any funds collected by
the Bank, (vi) any agreement made by the Bank to purchase or
repurchase securities or loans or any interest or
participation in any thereof, (vii) any liability with respect
to expenses of the Bank incurred in the course of its
operations, (viii) any lease of real or personal property,
purchase money security agreement or similar instrument or any
other obligation, undertaking or agreement relating to real or
personal property, (ix) any guarantee or similar obligation
which may be incidental or usual in carrying on the business
of the Bank or which may otherwise be permitted by law
including the guarantee of indebtedness of any corporation in
which the Bank has a financial interest, (x) any transaction
in the nature of an extension of credit, whether in the form
of a commitment, guarantee or otherwise, undertaken by the
Bank for the account of a third party, (xi) any transaction in
which the Bank acts solely in an agency capacity, or (xii) any
other liability not specified in the foregoing provisions of
this subsection incurred by the Bank in the course of any
business which it may conduct from time to time;
(l) "ranking on a parity with the Debentures" means with respect
to Indebtedness of the Bank, Indebtedness which
(i) ranks equally with and not prior to the Debentures in
right of payment upon the happening of any event of
the kind specified in Section 3.01,
(ii) is also junior and subordinate in right of payment to
Senior Indebtedness of the Bank to at least the same
extent as the Debentures are made junior and
subordinate thereto by the provisions of Sections
3.01 and 3.02, and
(iii) is specifically designated as ranking on a parity
with the Debentures by express provision in the
instrument creating or evidencing such Indebtedness;
(m) "ranking junior to the Debentures" means, with respect to
Indebtedness of the Bank, Indebtedness which
(i) ranks junior to and not equally with or prior to the
Debentures (and any other obligations of the Bank
ranking on a parity with the Debentures) in right of
payment upon the happening of any event of the kind
specified in Section 3.01,
(ii) is also junior and subordinate in right of payment to
Senior Indebtedness of the Bank to at least the same
extent as the Debentures are made junior and
subordinate thereto by the provisions of Sections
3.01 and 3.02, and
(iii) is specifically designated as ranking junior to the
Debentures by express provision in the instrument
creating or evidencing such Indebtedness;
(n) "Senior Indebtedness" means all Indebtedness of the Bank which
does not constitute Subordinated Indebtedness;
- 5 -
(o) "Subordinated Indebtedness" means:
(i) the liability of the Bank in respect of the principal
of and premium, if any, and interest on the
Debentures,
(ii) any Indebtedness which, pursuant to the terms of the
instrument evidencing or creating such Indebtedness,
is expressed to be subordinate in right of payment to
other Indebtedness of the Bank in the same manner and
to the same extent as the Debentures, and
(iii) any Indebtedness which, pursuant to the terms of the
instrument evidencing or creating such Indebtedness,
is expressed to be junior in right of payment to the
Debentures and to all other Indebtedness to which the
Debentures are subordinated in right of payment;
(p) "Trustee" means Canada Permanent Trust Company or any
successor trustee under Article XII hereof;
(q) "certified resolution" means a copy of a resolution of the
directors of the Bank certified by the Secretary or an
Assistant Secretary of the Bank, under its corporate seal, to
have been duly passed by the directors of the Bank and to be
in full force and effect on the date of such certification;
(r) "Officers' Certificate" means a certificate of the Bank, under
the corporate seal of the Bank, signed in their capacities as
officers of the Bank and not in their personal capacities by
the President or a Vice-President or the Chief General Manager
and by the Secretary or the Chief Accountant or an Assistant
Secretary or an Assistant Chief Accountant or by any of the
foregoing and a director of the Bank or by any two directors
of the Bank;
(s) "financial year" means the fiscal period reported by the Bank
as its financial year for purposes of the Bank Act;
(t) "written order", "written request", "written consent" and
"written notice" of or by the Bank shall mean, respectively, a
written order, request, consent or notice signed in the name
of the Bank by the President or a Vice-President or the Chief
General Manager and by the Secretary or the Chief Accountant
or an Assistant Secretary or an Assistant Chief Accountant or
by any one of the foregoing and a director of the Bank or by
any two directors of the Bank;
(u) "this indenture", "this deed", "this trust indenture",
"hereto", "herein", "hereof", "hereby", "hereunder", and
similar expressions refer to this indenture and not to any
particular Article, Section or other portion hereof, and
include any and every instrument supplemental or ancillary
hereto or in implement hereof;
(v) words importing the singular number only shall include the
plural, and vice versa, and words importing the masculine
gender shall include the feminine gender and words importing
persons shall include firms and corporations, and vice versa.
- 6 -
SECTION 1.02
The headings of all the Articles and Sections hereof and the
Table of Contents, if any, are inserted for convenience of reference only and
shall not affect the construction or interpretation of this indenture.
SECTION 1.03
All references herein to Articles, Sections and other
subdivisions refer to the corresponding Articles, Sections and other
subdivisions of this indenture.
SECTION 1.04
This indenture and the Debentures and the coupons, if any,
appertaining thereto shall be construed in accordance with the laws of the
Province of Ontario and shall be treated in all respects as Ontario contracts.
ARTICLE II
THE DEBENTURES
SECTION 2.01 LIMITATION OF ISSUE
The aggregate principal amount of Debentures which may be
issued under this indenture is unlimited but Debentures may be issued hereunder
only upon the terms and subject to the conditions herein provided.
SECTION 2.02 ISSUANCE IN SERIES
The Debentures may be issued in one or more series subject to
compliance with the provisions of the Bank Act in force at the time of such
issue and subject to the conditions hereinafter set forth. The Debentures of
each series (except the Debentures of the 1987 Series, which shall have the
attributes and be subject to the provisions set out in this trust indenture)
shall bear such date or dates and mature on such date or dates, shall bear
interest at such rate or rates, may be issued in such denominations, may be
redeemable before maturity in such manner and subject to payment of such
premium, or without premium, may be payable as to principal, interest and
premium, if any, at such place or places, may be payable in Canadian or such
other currencies, may provide for such sinking fund, conversion rights and share
purchase rights, if any, may contain such provisions for the interchange or
transfer of Debentures of different denominations and forms and may contain such
other provisions, not inconsistent with the provisions of this indenture, as may
be determined by resolution of the directors passed at or prior to the time of
issue thereof and expressed in an indenture supplemental hereto providing for
the issuance of the Debentures of such series and (to such extent as the
directors may deem appropriate) in the Debentures of such series or, as the
directors may determine, expressed only in the Debentures of such series. At the
option of the Bank the maximum principal amount of Debentures of any series may
be limited and may be expressed in the supplemental indenture providing for the
issuance of the Debentures of such series and in the Debentures of such series.
- 7 -
SECTION 2.03 DIFFERENCES IN DEBENTURES OF ANY SERIES
The Debentures of any series may be of different denominations
and forms (either coupon Debentures or fully registered Debentures or both) and
may contain such variations of tenor and effect as are incidental to such
differences of denomination and form including variations in the provisions for
the interchange of Debentures of different denominations or forms and in the
provisions for the registration or transfer of Debentures and any series of
Debentures may consist of Debentures having different dates of issue, different
dates of maturity, different rates of interest, different redemption prices, if
any, and different sinking fund pro-visions, if any, and partly of Debentures
carrying the benefit of a sinking fund and partly of Debentures with no sinking
fund.
SECTION 2.04 ISSUE OF DEBENTURES AS PART OF SERIES PREVIOUSLY ISSUED
Subject to the foregoing provisions, any of the Debentures may
be issued as part of any series of Debentures previously issued, in which case
they shall bear the same designation and designating letters as have been
applied to such similar prior issue and shall be numbered consecutively upwards
in respect of each denomination of Debentures in like manner and following the
numbers of the Debentures of such prior issue.
SECTION 2.05 FORM OF DEBENTURES OF 1987 SERIES
The 1987 Debentures and the coupons appertaining to coupon
bearer Debentures of the 1987 Series and the certificate of the Trustee endorsed
on the 1987 Debentures shall be respectively substantially in the forms set
forth in the First Schedule hereto with appropriate insertions, omissions,
substitutions and variations as may be required or permitted by the terms of
this indenture.
SECTION 2.06 FORM OF DEBENTURES OF OTHER SERIES
Any further series of Debentures which may at any time be
issued hereunder and the coupons, if any, appertaining thereto and the
certificate of the Trustee endorsed on such Debentures may be respectively
substantially in one or more of the forms of the 1987 Debentures or in such
other form or forms as the directors of the Bank shall by resolution determine
at the time of the first issue of any series or part of a series of such
Debentures and as shall be approved by the Trustee.
SECTION 2.07 DEBENTURES ENGRAVED, PRINTED OR LITHOGRAPHED
The Debentures of any series may be engraved, lithographed,
printed or mimeographed, or partly in one form and partly in another, as the
Bank may determine, provided, however, that any mimeographed Debentures may be
exchanged for engraved, lithographed or printed Debentures when available and
ready for delivery, at the option of the holders thereof and without expense to
such holders.
- 8 -
SECTION 2.08 SIGNATURE OF DEBENTURES AND COUPONS
All Debentures shall be under the seal of the Bank or a
facsimile thereof (which shall be deemed to be the corporate seal of the Bank)
and shall be signed (either manually or by facsimile signature) by the
President, a Vice-President or the Chief General Manager and by the Secretary or
the Chief Accountant or an Assistant Secretary or an Assistant Chief Accountant
of the Bank holding office at the time of signing. Interest coupons attached to
coupon Debentures shall have reproduced thereon the facsimile signature of the
present or any future Chief Accountant or Assistant Chief Accountant of the
Bank. A facsimile signature upon any of the Debentures and/or coupons shall for
all purposes of this indenture be deemed to be the signature of the person whose
signature it purports to be and notwithstanding that any person whose signature,
either manual or in facsimile, may appear on the Debentures or coupons is not at
the date of this indenture or at the date of the Debentures or at the date of
the certifying and delivery thereof the President, a Vice-President, the Chief
General Manager, the Secretary, the Chief Accountant, an Assistant Secretary or
an Assistant Chief Accountant, as the case may be, of the Bank, such Debentures
or coupons shall be valid and binding upon the Bank and entitled to the benefits
of this indenture.
SECTION 2.09 CERTIFICATION
No Debenture shall be issued or, if issued, shall be
obligatory until it has been certified by or on behalf of the Trustee
substantially in one of the forms set out in the First Schedule hereto or in
some other form approved by the Trustee. Such certificate on any Debenture shall
be conclusive evidence that such Debenture is duly issued, is a valid obligation
of the Bank and is entitled to the benefits of this indenture.
SECTION 2.10 LIABILITY OF TRUSTEE
The certificate of the Trustee signed on the Debentures and/or
interim Debentures and/or Trustee's interim certificates hereinafter mentioned
shall not be construed as a representation or warranty by the Trustee as to the
validity of this indenture or of said Debentures and/or said certificates and
the said Trustee shall in no respect be liable or answerable for the use made of
said Debentures and/or certificates or any of them or the proceeds thereof.
SECTION 2.11 COUPONS FOR INTEREST - INTERIM DEBENTURES
The coupons for interest, if any, matured at the date of
delivery by the Trustee of definitive coupon Debentures issued hereunder shall
be detached from the same and cancelled before delivery unless the same
represent unpaid interest on outstanding interim Debentures or Trustee's interim
certificates which are being exchanged for the said coupon Debentures.
SECTION 2.12 DATE FROM WHICH DEBENTURES BEAR INTEREST
All fully registered Debentures issued hereunder, whether
issued originally or in exchange for other Debentures, shall bear interest from
their date 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, whichever shall be the later.
- 9 -
SECTION 2.13 INTERIM DEBENTURES AND TRUSTEE'S CERTIFICATES
Pending the preparation and delivery to the Trustee of
definitive Debentures of any series or part of a series the Bank may execute in
lieu thereof (but subject to the same provisions, conditions and limitations as
are herein set forth), and the Trustee may certify, interim printed,
mimeographed or typewritten Debentures, either registered or payable to bearer,
with or without coupons, in such form and in such denominations and with such
appropriate omissions, insertions and variations as may be approved by the
Trustee and the Secretary or Chief Accountant of the Bank (whose certification
or signature, either manual or in facsimile, as the case may be, on any such
interim Debentures shall be conclusive evidence of such approval) entitling the
holders thereof to definitive Debentures of such series or part of a series in
any authorized denomination when the same are prepared and ready for delivery,
without expense to the holders, but the total amount of interim Debentures of
any series or part of a series so issued shall not exceed the total amount of
Debentures of such series or part of a series for the time being authorized. The
Bank may execute interim Debentures of any series or part of a series
aggregating in principal amount not in excess of the principal amount of the
Debentures of such series or part of a series authorized to be issued hereunder
and may deliver the same to the Trustee and thereupon the Trustee (but subject
to the same provisions, conditions and limitations as herein set forth) may
issue its own interim certificates (herein referred to as "Trustee's interim
certificates") in such form and in such amounts, not exceeding in the aggregate
the principal amount of the interim Debentures of such series or part of a
series so delivered to it, as the Bank and the Trustee may approve, entitling
the holders thereof to definitive Debentures of such series or part of a series
when the same are prepared and ready for delivery, without expense to-the
holders. Forthwith after the issuance of any such interim Debentures or
Trustee's interim certificates the Bank shall cause to be prepared the
appropriate definitive Debentures for delivery to the holders of such interim
Debentures or Trustee's interim certificates.
Any such interim Debentures or Trustee's interim certificates
when duly issued shall, until exchanged for definitive Debentures, entitle the
holders thereof to rank for all purposes as debentureholders and otherwise in
respect of this indenture to the same extent and in the same manner as though
the said exchange had actually been made. When exchanged for definitive
Debentures such interim Debentures or Trustee's interim certificates shall
forthwith be cancelled by the Trustee. Any interest paid upon interim Debentures
without coupons or Trustee's interim certificates shall be noted thereon by the
paying agent.
SECTION 2.14 ISSUE OF DEBENTURES
The Debentures may be issued in such amounts, to such persons,
on such terms, not inconsistent with the provisions of this indenture, and at
par or at a discount or at a premium as the directors of the Bank may determine.
Each Debenture as soon as issued or negotiated shall, subject to the terms
hereof, be equally and proportionately entitled to the benefits as if all of the
Debentures had been issued and negotiated simultaneously.
SECTION 2.15 DEBENTURES NEGOTIABLE UNLESS REGISTERED
Debentures issued hereunder shall be negotiable and shall pass
by delivery unless registered for the time being in the name of the holder as
hereinafter provided.
- 10 -
SECTION 2.16 REGISTRATION OF FULLY REGISTERED DEBENTURES
The Bank shall keep or cause to be kept at the head office of
the Bank in the City of Toronto and at such other place or places and/or by such
other registrar or registrars, if any, as the Bank with the approval of the
Trustee may designate a register or registers in which shall be entered the
names and addresses of the holders of fully registered Debentures and
particulars of the Debentures held by them respectively and of all transfers of
fully registered Debentures. The Bank shall also keep or cause to be kept at the
head office of the Bank in the City of Toronto and at such other place or places
and/or by such transfer agent or transfer agents, if any, as the Bank with the
approval of the Trustee may designate a transfer office or transfer offices
where fully registered Debentures may be presented for transfer or exchange and
where unregistered Debentures and Debentures registered as to principal only may
be presented for exchange for fully registered Debentures. No transfer of a
fully registered Debenture shall be valid unless such Debenture shall have been
surrendered at one of such transfer offices with the form of transfer endorsed
thereon, if any, duly executed by the registered holder or his executors or
administrators or other legal representatives or his or their attorney duly
appointed by an instrument in writing in form and execution satisfactory to the
Bank, or accompanied by a written instrument or instruments of transfer in form
satisfactory to the Bank and duly executed as aforesaid, and upon compliance
with such reasonable requirements as the Bank and/or other transfer agent may
prescribe. Upon such surrender, the Bank shall execute and the Trustee shall
certify and the Bank shall deliver in the name of the transferee or transferees
a new Debenture for the same aggregate principal amount as the Debenture so
surrendered.
Transfer offices at which 1987 Debentures may be so presented
for transfer or exchange will be maintained by the Bank at the head office of
the Bank in the City of Toronto as aforesaid and at the principal offices of the
Bank in the Cities of Montreal, Winnipeg, Edmonton and Vancouver and at such
other place or places and/or by such transfer agent or transfer agents, if any,
as the Bank with the approval of the Trustee may designate.
SECTION 2.17 REGISTRATION OF UNREGISTERED DEBENTURES
The Bank shall keep or cause to be kept at the head office of
the Bank in the City of Toronto and at such other offices of the Bank and/or by
such transfer agent or transfer agents, if any, as the Bank with the approval of
the Trustee may designate, a transfer office or transfer offices where the
holder or holders of any of the unregistered Debentures which by their terms may
be registered as to principal only may submit the same for registration as to
principal only, such registration to be noted on such Debenture, and the Bank
shall keep or cause to be kept at the head office of the Bank in the City of
Toronto and at such other place or places and/or by such other registrar or
registrars, if any, as the Bank with the approval of the Trustee may designate,
a register or registers in which any of such unregistered Debentures submitted
for registration shall be registered as to principal only. The name and address
of each holder of a Debenture so registered and particulars of the Debentures
held by him shall be entered in such register. After such registration of a
Debenture as to principal, no transfer thereof shall be valid unless such
Debenture shall have been surrendered for transfer at one of such transfer
offices with the form of transfer endorsed thereon, if any, duly executed by the
registered holder or his executors or administrators or other legal
representatives or his or their attorney duly appointed by an instrument in
writing in form and execution satisfactory to the Bank, or accompanied by a
- 11 -
written instrument or instruments of transfer in form satisfactory to the Bank
and duly executed as aforesaid, and upon compliance with such reasonable
requirements as the Bank and/or other transfer agent may prescribe, and unless
such transfer shall have been duly noted on such Debenture by the Bank or other
transfer agent; at the option of the Bank, in lieu of noting such transfer on
such Debenture, the Bank may execute and the Trustee shall certify and the Bank
shall deliver in the name of the transferee or transferees a new Debenture for
the same aggregate principal amount as the Debenture so surrendered. Any
Debenture registered as to principal only may be discharged from registry by
being transferred to bearer on surrender at one of such transfer offices with
the form of transfer endorsed thereon, if any, duly executed as aforesaid or
accompanied by a written instrument or instruments in form satisfactory to the
Bank and duly executed as aforesaid, after which it shall again be transferable
by delivery, but may again and from time to time be registered and discharged
from registry as above provided.
SECTION 2.18 REGISTERS OPEN TO INSPECTION
The registers referred to in Sections 2.16 and 2.17 shall at all
reasonable times be open for inspection by the Bank, by the Trustee and by any
debentureholder.
SECTION 2.19 TRANSFER OF REGISTERED DEBENTURES
The registered holder of a registered Debenture, whether fully
registered or registered as to principal only, may at any time and from time to
time have the registration of such Debenture transferred to the register kept at
any of the places at which a register is kept pursuant to the provisions of
Section 2.16 and Section 2.17, in accordance with such reasonable regulations as
the Bank may prescribe.
SECTION 2.20 CLOSING OF REGISTERS
The registers of fully registered Debentures of any series may
be closed for a period not exceeding 15 days immediately preceding any date upon
which interest on such Debentures is payable.
SECTION 2.21 CLOSING OF REGISTRIES AND TRANSFER OFFICES
Except in the case of the register and the transfer office
required to be kept at the City of Toronto, and in the case of the 1987
Debentures except for the transfer offices required to be kept at the Cities of
Montreal, Winnipeg, Edmonton and Vancouver, the Bank, with the approval of the
Trustee, shall have power at any time to close any transfer office or to close
any register upon which the entries of the registration of any Debentures appear
and in that event shall transfer the records thereof to another existing
register or to a new register and thereafter such Debentures shall be deemed to
be registered on such existing or new register as the case may be. In the event
that the register in any place is closed and the records transferred to a
register kept in another place, notice of such change shall be given, in the
manner provided in Section 14.02, to the holders of the Debentures registered in
the register so closed.
- 12 -
SECTION 2.22 NOT CHARGED WITH NOTICE OF TRUST
The Bank and/or any registrar for any of the Debentures and/or
the Trustee shall not be charged with notice of or be bound to 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 registered
holder thereof, whether named as trustee or otherwise, as though that person
were the beneficial owner thereof.
SECTION 2.23 PERSONS ENTITLED TO PAYMENT OF PRINCIPAL
The person in whose name any registered Debentures shall be
registered shall be deemed the owner thereof for all purposes of this indenture
and payment of or on account of the principal of and premium, if any, on such
Debentures shall be made only to or upon the order in writing of such registered
holder thereof and such payment shall be good and sufficient discharge to the
Bank and to this Trustee for the amounts so paid.
SECTION 2.24 PAYMENT OF INTEREST ON FULLY REGISTERED DEBENTURES
In the case of fully registered Debentures, as the interest on
such Debentures matures (except interest payable at maturity or on redemption
which shall be paid upon presentation and surrender of such Debentures for
payment) the Bank, at least 3 days prior to each date on which interest on such
Debentures becomes due, shall forward or cause to be forwarded by prepaid post
to the holder for the time being, or in the case of joint holders, to one of
such joint holders, at his address appearing on the appropriate register
hereinbefore mentioned, a warrant or cheque for such interest (less any tax
required to be deducted) payable to the order of such holder or holders and
negotiable at par at each of the places at which interest upon such Debentures
is payable. The forwarding of such warrant or cheque, as the case may be, shall
satisfy and discharge the liability for the interest upon such Debentures to the
extent of the sums represented thereby (plus the amount of any tax deducted as
aforesaid) unless such warrant or cheque be not paid on presentation, provided
that in the event of the non-receipt of such warrant or cheque by the registered
holder, or the loss or destruction thereof, the Bank upon being furnished with
reasonable evidence of such non-receipt, loss or destruction and indemnity
reasonably satisfactory to it shall issue to such registered holder a
replacement warrant or cheque for the same amount.
SECTION 2.25 BEARER OF UNREGISTERED DEBENTURE OR COUPON
The Bank and the Trustee may deem and treat the bearer of any
unregistered Debenture and the bearer of any coupon for interest on any coupon
Debenture, whether such Debenture shall be registered as to principal or not, as
the absolute owner of such Debenture and/or coupon for the purpose of receiving
payment thereof, and for all other purposes whatsoever, and the Bank and the
Trustee shall not be affected by any notice to the contrary.
SECTION 2.26 FREE FROM ALL EQUITIES
The registered holder for the time being of any registered
Debenture and the bearer for the time being of any Debenture payable to bearer
and the bearer of any coupon (except any coupon which shall be void by reason of
the acceleration of the maturity of the
- 13 -
Debenture to which it was annexed) shall be entitled to the principal moneys,
premium, if any, and interest evidenced by such instruments respectively, free
from all equities or rights of set-off or counter-claim between the Bank and the
original or any intermediate holder thereof, and all persons may act accordingly
and a transferee of a registered Debenture shall, after the appropriate form of
transfer is lodged with the registrar and upon compliance with all other
conditions in that behalf required by this indenture or by any conditions
endorsed on the Debenture or by law, be entitled to be entered on any one of the
said registers 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 thereof, save in respect of equities of which the Bank is required to
take notice by statute or by order of a court of competent jurisdiction.
SECTION 2.27 DEBENTURES REGISTERED IN MORE THAN ONE NAME
Where registered Debentures are registered in more than one
name the principal moneys, premium, if any, and interest (in the case of fully
registered Debentures) from time to time payable in respect thereof may be paid
by cheque or warrant payable to the order of all such holders, failing written
instructions from them to the contrary, and the receipt of any one of such
holders therefore shall be a valid discharge to the Bank, to any registrar and
to the Trustee.
SECTION 2.28 RE-ISSUE OF DEBENTURES
Subject to the provisions of the Bank Act, all or any of the
Debentures while the Bank remains in possession thereof and is not in default
hereunder may be pledged, hypothecated or charged from time to time by the Bank
as security for advances or loans to or for indebtedness or other obligations of
the Bank, and, when redelivered to the Bank or its nominees on or without
payment, satisfaction, release or discharge in whole or in part of any such
advances, loans, indebtedness or obligations, shall (except when acquired
pursuant to any provision of the Debentures or of this indenture or pursuant to
a resolution of the directors of the Bank which provision or resolution requires
cancellation and retirement of such Debentures so acquired) whilst the Bank
remains in possession thereof be treated as unissued Debentures and accordingly
may be issued or re-issued, pledged, hypothecated or charged, sold or otherwise
disposed of as and when the Bank may think fit, and all such Debentures so
issued or re-issued before but not after the respective dates of maturity
thereof shall continue to be entitled, as upon their original issue, to the
benefit of all the terms, conditions, rights, priorities and privileges hereby
attached to or conferred on Debentures issued hereunder.
SECTION 2.29 MUTILATION, LOSS OR DESTRUCTION OF DEBENTURES
In case any of the Debentures or coupons issued hereunder
shall become mutilated or be lost or destroyed, 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 upon surrender and cancellation of the mutilated
Debenture or coupon, or, in the case of a lost or destroyed Debenture or coupon,
in lieu of and in substitution for the same, and the substituted Debenture or
coupon shall be in a form approved by the Trustee and shall be entitled to the
benefits of this indenture equally with all other Debentures and/or coupons
issued or to be issued hereunder. In the case of loss or destruction the
applicant for a substituted Debenture or coupon shall furnish to the Bank and to
the Trustee such evidence of such loss or destruction as shall be
- 14 -
satisfactory to the Bank and to the Trustee in their discretion and shall also
furnish indemnity satisfactory to them in their discretion. The applicant for a
new or substituted Debenture or coupon shall pay all expenses incidental to the
issuance of such substituted Debenture or coupon.
SECTION 2.30 EXCHANGE OF DEBENTURES
Coupon Debentures may be exchanged for fully registered
Debentures and vice versa and Debentures of any denomination may be exchanged
for Debentures of any other authorized denomination or denominations, any such
exchange to be for an equivalent principal amount of Debentures of the same
series carrying the same rate of interest and having the same maturity date, and
the same redemption and sinking fund provisions, if any, provided that the Bank
or the Trustee shall not be required to make exchanges of any Debentures during
the 7 business days next preceding the selection of Debentures on a partial
redemption or to make exchanges of any Debentures which have been selected or
called for redemption unless upon due presentation thereof for redemption such
Debenture shall not be redeemed. All exchanges for Debentures shall be made only
at the head office of the Bank in the City of Toronto or at such other office or
offices of the Bank or at the office of such other transfer agent or transfer
agents as may from time to time be designated by the Bank for such purpose. Any
Debentures tendered for exchange shall be surrendered to the Bank together with
all unmatured coupons if any, appertaining thereto and shall be cancelled.
SECTION 2.31 CHARGE ON EXCHANGE, REGISTRATION, TRANSFER
Except as herein otherwise provided, in every case of exchange
of Debentures of any denomination or form for other Debentures and for any
registration of Debentures as to principal and for any discharge from such
registration and for any transfer of Debentures (other than an exchange of
interim Debentures for definitive Debentures or the initial registration of
definitive Debentures issued in exchange for bearer interim Debentures) the Bank
or other registrar may make a sufficient charge to reimburse it for any stamp
tax or governmental charge required to be paid, and in addition a reasonable
charge for its services and for every Debenture issued upon such exchange,
registration or transfer, and payment of the said charges shall be made by the
party requesting such registration, exchange or transfer as a condition
precedent thereto.
SECTION 2.32 CANCELLATION AND DESTRUCTION OF DEBENTURES AND COUPONS
All Debentures surrendered for the purpose of payment,
redemption, exchange or transfer, or credited against or purchased out of
sinking fund moneys, shall be cancelled and no Debentures shall be issued in
lieu thereof except as expressly required or permitted by any of the provisions
of this indenture. If the Bank shall acquire any of the Debentures other than
out of sinking fund moneys, such acquisition shall not operate as a redemption
or satisfaction of the indebtedness represented by such Debentures unless and
until the same are cancelled. The Bank shall give the Trustee notice of all
payments of portions of Debentures and shall deliver all cancelled Debentures
forthwith upon cancellation to the Trustee. Upon written request of the Bank,
the Trustee shall return to the Bank any cancelled Debentures with the
certification of the Trustee thereon cancelled or shall otherwise dispose of
such cancelled Debentures as the Bank may direct.
- 15 -
SECTION 2.33 OPTION OF HOLDER AS TO PLACE OF PAYMENT
Except as otherwise herein provided all sums which may at any
time become payable, whether at maturity or on a declaration or on redemption or
otherwise, on account of any Debenture or coupon or any interest or premium
thereon, shall be payable at the option of the holder at any of the places at
which the principal and interest of such Debenture or coupon are payable.
ARTICLE III
SUBORDINATION OF DEBENTURES
SECTION 3.01 DEBENTURES SUBORDINATED TO SENIOR INDEBTEDNESS
The Bank covenants and agrees and each holder of any Debenture
or coupon, by his acceptance thereof, likewise covenants and agrees and shall be
deemed conclusively to have covenanted and agreed, for the benefit of present
and future holders of deposit liabilities and of other Senior Indebtedness,
anything in this indenture to the contrary notwithstanding, that 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 of all other Senior Indebtedness,
whether now outstanding or hereafter incurred, in accordance with the terms of
such deposit liabilities and other Senior Indebtedness, and each holder of any
Debenture or coupon by his acceptance thereof agrees to and shall be bound by
the provisions of this Article III.
SECTION 3.02 OTHER RIGHTS OF DEBENTUREHOLDERS NOT IMPAIRED
Nothing contained in this Article III or elsewhere in this
indenture, or in the Debentures, is intended to or shall impair, as between the
Bank, its creditors other than the holders of Senior Indebtedness, and the
holders of the Debentures, the obligation of the Bank, which is absolute and
unconditional, to pay to the holders of the Debentures the principal of,
premium, if any, and interest on the Debentures, as and when the same shall
become due and payable in accordance with their terms, or affect the relative
rights of the holders of the Debentures or coupons and creditors of the Bank
other than the holders of the Senior Indebtedness, nor shall anything herein or
in the Debentures or coupons prevent the Trustee or the holder of any Debenture
or coupon from exercising all remedies otherwise permitted by this indenture or,
except as expressly limited hereby or by the Debentures, by applicable law upon
default under this indenture or the Debentures, subject to the rights, if any,
under this Article III of the holders of Senior Indebtedness in respect of cash,
property or securities of the Bank received upon the exercise of any remedy.
SECTION 3.03 FURTHER ASSURANCES OF SUBORDINATION
Each holder of Debentures or coupons by his acceptance thereof
authorizes and directs the Trustee in his behalf to take such action as may be
necessary or appropriate further to assure the subordination as provided in this
Article III and appoints the Trustee his agent for any and all such purposes.
- 16 -
ARTICLE IV
ISSUANCE OF DEBENTURES
SECTION 4.01 6% DEBENTURES DUE MAY 2, 1987
Exclusive of Debentures issued upon any transfer of or in
exchange or substitution for or by way of replacement of any Debentures
previously issued, the initial series of Debentures to be issued hereunder shall
consist of, and be limited to, Debentures in an aggregate principal amount not
in excess of $12,500,000, shall he designated as "6% Debentures due May 2, 1987"
(herein referred to as the 1987 Debentures" or "Debentures of the 1987 Series"),
shall be dated as of May 2, 1967, shall mature on May 2, 1987, and shall bear
interest at the rate of 6% per annum from May 2, 1967, payable after as well as
before maturity and after as well as before default, with interest on overdue
interest and premium, if any, at the same rate, half-yearly on the second days
of November and May in each year.
The principal of the 1987 Debentures and interest thereon and
premium, if any, shall be payable in lawful money of Canada at any branch in
Canada of The Toronto-Dominion Bank at the option of the respective holders
thereof.
The 1987 Debentures shall be issued as coupon bearer
Debentures in the denomination of $1,000 and/or as fully registered Debentures
in denominations of $1,000 and such multiples of $1,000 as the President, a
Vice-President or the Chief General Manager of the Bank may from time to time
determine or approve, the signature either manually or by facsimile of such
President, Vice-President or Chief General Manager on any such fully registered
Debenture to be conclusive evidence of such approval.
The 1987 Debentures shall be redeemable before maturity at the
prices and in accordance with the provisions and subject to the restrictions set
forth in Article V and shall be entitled to the benefits of and shall be subject
to redemption out of the sinking fund provided for by Article VI.
SECTION 4.02 ISSUE OF 1987 DEBENTURES
1987 Debentures aggregating in principal amount the sum of
$12,500,000 in lawful money of Canada shall forthwith be executed by the Bank
and delivered to the Trustee and shall be certified by the Trustee and delivered
to or upon the written order of the Bank at any time or from time to time prior
to but not on or after the 1st day of July, 1967 without any further act or
formality on the part of the Bank.
The Trustee shall have no duty or responsibility with respect
to the use or application of any of the 1987 Debentures so certified and
delivered or the proceeds thereof.
SECTION 4.03 1987 DEBENTURES NOT TO BE ISSUED ON OR AFTER JULY 1, 1967
Other than any Debenture issued upon any transfer of or in
exchange for or in replacement of a 1987 Debenture that is not then being
redeemed or paid, no 1987 Debentures shall be certified by the Trustee or issued
or sold by the Bank on or after the 1st day of July, 1967. The $12,500,000
aggregate principal amount of 1987 Debentures authorized to be issued
- 17 -
pursuant to Section 4.01 shall be reduced by the aggregate principal amount, if
any, of any portion of the said $12,500,000 principal amount which has not been
certified by the Trustee, delivered to or to the order of the Bank and sold by
the Bank prior to the 1st day of July, 1967.
SECTION 4.04 ADDITIONAL DEBENTURES
After the $12,500,000 principal amount of 1987 Debentures, or
such lesser amount thereof as shall have been authorized, issued and sold as
provided in Section 4.03, have been certified and delivered, Additional
Debentures may, subject to the provisions of Section 4.05 and to such
restrictions as may be set forth in any Additional Debentures or in any
indenture under which any Additional Debentures are issued and subject to
compliance with such provisions, if any, of the Bank Act as may at such time be
applicable and subject as hereinafter provided, from time to time be executed
and issued by the Bank and certified and delivered by the Trustee upon
application by the Bank but only upon receipt by the Trustee of:
(a) A written order of the Bank requesting the certification of
such Additional Debentures in the principal amount applied
for, specifying the person or persons to whom such Debentures
shall be delivered;
(b) A certified resolution of the Bank certified within 10 days
prior to the date of such written order, authorizing the issue
and requesting the certification of Additional Debentures of
the principal amount applied for and specifying the series
thereof, and the particulars and provisions to be expressed in
or which are to relate to such Additional Debentures in
accordance with the provisions hereof;
(c) An Officers' Certificate dated within 10 days prior to the
date of such written order, stating:
(i) The principal amount of bank debentures outstanding
at the date thereof prior to the issue of the
Additional Debentures at such time requested to be
certified by the Trustee, and the date or dates of
final maturity of such bank debentures;
(ii) The amount at such date of the paid-up capital stock
and rest account of the Bank;
(iii) That to the best of the knowledge and belief of the
signers no event of default under this indenture has
occurred and is continuing and the Bank will not by
the issue of such Additional Debentures be in default
under this indenture or in violation of the
provisions of the Bank Act as it may at such time be
applicable;
(d) An opinion of Counsel that all requisite indentures
supplemental hereto, if any are required, have been
duly executed by the Bank and that such indentures or
the Additional Debentures contain all appropriate
provisions as to dates, maturities, rates of
interest, form, denominations, places and media of
payment, numbers, exchange and redemption or call,
and that all legal requirements in respect of the
proposed issue of Additional Debentures have been
met.
- 18 -
SECTION 4.05 NO ADDITIONAL DEBENTURES TO BE ISSUED DURING DEFAULT
No Additional Debentures shall be certified or delivered if
the Bank is at the time to the knowledge of the Trustee in default under any of
the provisions of this indenture. Any certification and delivery of any
Additional Debentures by the Trustee shall be conclusive evidence of the absence
of knowledge on the part of the Trustee of any such default at the time of such
certification and delivery.
SECTION 4.06 CONCERNING RESOLUTIONS, CERTIFICATES AND REPORTS
The Trustee, prior to the certification and delivery of any
Debentures under any of the provisions of this Article, shall not be bound to
make any enquiry or investigation as to the correctness of the matters set forth
in any of the resolutions, written orders, opinions, certificates or other
documents required by the provisions of this Article, but shall be entitled to
accept and act upon the said resolutions, written orders, certificates and other
documents. The Trustee may nevertheless, in its discretion, require further
proof in cases where it deems further proof desirable.
SECTION 4.07 CHARGES ON EXCHANGE OF 1987 DEBENTURES
Notwithstanding the provisions of Section 2.31 hereof, no
charge (other than for any stamp tax or governmental charge required to be paid)
shall be made in respect of any exchange, registration or transfer of any
Debentures of the 1987 Series made before August 1, 1967 or in respect of any
exchange, registration or transfer of any Debentures of the 1987 Series made on
or after August 1, 1967 if the Debentures tendered upon such exchange,
registration or transfer are fully registered Debentures which shall have been
issued prior to August 1, 1967 or issued thereafter to the same holder pursuant
to the provisions of Section 5.04.
ARTICLE V
REDEMPTION AND PURCHASE OF DEBENTURES
SECTION 5.01 GENERAL
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 at such date or
dates as shall have been determined at the time of the issue of such Debentures
and as shall be expressed in this indenture and/or in the Debentures and/or in
the resolution and/or supplemental indenture authorizing or providing for the
issue thereof.
SECTION 5.02 RESTRICTION ON REDEMPTION AND PAYMENT OF 1987 DEBENTURES
The Bank will not prior to May 3, 1972, call for redemption
all or any portion of the 1987 Debentures under any circumstances and will not
redeem the 1987 Debentures (otherwise than for sinking fund purposes) at any
time prior to May 2, 1979, in whole or in part as part of or in anticipation of
any refunding operation involving an issue of bank debentures
- 19 -
which have an interest rate or cost to the Bank of less than 6% per annum. The
indebtedness evidenced by the 1987 Debentures will not be paid by the Bank at
any time prior to May 3, 1972.
SECTION 5.03 REDEMPTION OF 1987 DEBENTURES
The 1987 Debentures shall be redeemable by the Bank (otherwise
than out of sinking fund moneys) at the option of the Bank (subject to the
provisions of Section 5.02 and as hereinafter provided) in whole at any time or
in part from time to time prior to maturity at the following percentages of the
principal amount thereof:
In case of redemption
after May 2, 1972 up to and including May 1, 1973, 104.875%
thereafter up to and including May 1, 1974, 104.50%
thereafter up to and including May 1, 1975, 104.125%
thereafter up to and including May 1, 1976, 103.75%
thereafter up to and including May 1, 1977, 103.375%
thereafter up to and including May 1, 1978, 103.00%
thereafter up to and including May 1, 1979, 102.625%
thereafter up to and including May 1, 1980, 102.25%
thereafter up to and including May 1, 1981, 101.875%
thereafter up to and including May 1, 1982, 101.50%
thereafter up to and including May 1, 1983, 101.125%
thereafter up to and including May 1, 1984, 100.75%
thereafter up to and including May 1, 1985, 100.375%
thereafter and prior to maturity, 100%
together in each case with interest on such principal amount accrued and unpaid
to the date fixed for redemption (the price, including accrued interest, at
which 1987 Debentures may be redeemed at any given time pursuant to this Article
being hereinafter called the "redemption price").
SECTION 5.04 PARTIAL REDEMPTION OF DEBENTURES
In the event that less than all the Debentures of any series
for the time being outstanding are at any time to be redeemed, the Debentures of
such series so to be redeemed shall be selected by the Trustee by lot in such
manner as the Trustee may deem equitable. For this purpose, the Trustee may make
regulations with respect to the manner in which such Debentures may be drawn for
redemption and regulations so made shall be valid and binding upon all holders
of such Debentures notwithstanding the fact that as a result thereof one or more
of such Debentures becomes subject to redemption in part only. In the event that
one or more of such Debentures becomes subject to redemption in part only, upon
surrender of any such Debenture for payment of the redemption price, the Bank
shall execute and the Trustee shall certify and the Bank shall deliver to the
holder thereof or upon his order, at the expense of the Bank, one or more new
Debentures, of the same series, maturity date and tenor, for the unredeemed part
of the principal amount of the Debenture or Debentures so surrendered. Unless
the context otherwise requires, the word "Debenture" or "Debentures" as used in
this Article V
- 20 -
shall be deemed to mean or include any part of the principal amount of any
Debenture which in accordance with the foregoing provisions has become subject
to redemption.
SECTION 5.05 NOTICE OF REDEMPTION
Notice of intention to redeem any of the Debentures shall be
given by the Bank in the following manner:
(a) If all or any of the Debentures at any time to be
redeemed are registered Debentures, notice of
intention to redeem such Debentures shall be given to
each holder of such Debentures by letter or circular
sent through the ordinary mail, postage prepaid,
addressed to him at his last address appearing upon
one of the registers hereinbefore mentioned and
mailed not less than 30 days prior to the date fixed
for redemption. The accidental omission to mail any
such letter or circular to or the non-receipt of any
such letter or circular by any such holder or holders
shall not invalidate or otherwise prejudicially
affect the redemption of such Debentures.
(b) If all or any of the Debentures at any time proposed
to be redeemed are unregistered Debentures, notice of
intention to redeem such Debentures shall be given by
the Bank by publication in at least one daily
newspaper of general circulation published in the
Cities of Montreal, Toronto, Winnipeg, Edmonton and
Vancouver, Canada, and in a daily newspaper or
newspapers published in such other place or places,
if any, as may be required by the Trustee, at least
once in each of two successive calendar weeks, the
first publication to be at least 30 days prior to the
redemption date fixed in such notice.
(c) Every notice of redemption given by publication as
provided in subsection (b) of this Section 5.05 shall
designate the series of the Debentures so called for
redemption, and unless all of the Debentures of the
series so designated or all of the Debentures of such
series having the same maturity date for the time
being outstanding are to be redeemed, state the
designating numbers of the unregistered Debentures so
called for redemption and in case a Debenture is to
be redeemed in part only that part of the principal
amount thereof so to be redeemed and every notice of
redemption, whether given by letter or circular or by
publication, shall specify the redemption date and
the redemption price, shall state where payment of
the redemption price is to be made upon presentation
and surrender of such Debenture, and shall state that
in case the Debenture specified in such notice be not
presented for redemption on such redemption date all
interest thereon shall cease from and after the said
date.
(d) Every notice sent by post or published as aforesaid
shall be deemed to have been given on the day on
which it is mailed or first published, as the case
may be.
SECTION 5.06 DEBENTURES DUE ON REDEMPTION DATES
Notice having been given as aforesaid, all the Debentures so
called for redemption shall thereupon be and become due and payable at the
redemption price, on the
- 21 -
redemption date specified in such notice, in the same manner and with the same
effect as if it were the date of maturity specified in such Debentures
respectively, anything therein or herein to the contrary notwithstanding, and
from and after such redemption date, if the moneys necessary to redeem such
Debentures shall have been deposited as provided in Section 5.07 hereof and
affidavits or other proof satisfactory to the Trustee as to the publication
and/or mailing of such notices shall have been lodged with it, interest upon the
said Debentures shall cease and coupons for interest to accrue after said date
upon said Debentures shall become and be void.
In case any question shall arise as to whether any notice has
been given as above provided and such deposit made, such question shall be
decided by the Trustee whose decision shall be final and binding upon all
parties in interest.
SECTION 5.07 DEPOSIT OF REDEMPTION MONEYS
Redemption of Debentures pursuant to this Article V shall be
provided for by setting aside in trust or by depositing with the Trustee or any
paying agent to the order of the Trustee, at least 1 business day prior to the
redemption date fixed in such notice, such sums as may be sufficient to pay the
redemption price of such Debentures. The Bank shall also deposit with the
Trustee a sum sufficient to pay any charges or expenses which may be incurred by
the Trustee in connection with such redemption. From the sums set aside in trust
or so deposited, the Bank or the Trustee, as the case may be, shall pay or cause
to be paid to the holders of such Debentures so called for redemption, upon
surrender of such Debentures with the unmatured coupons, if any, appertaining
thereto, the redemption price. In the case of coupon Debentures the accrued
interest as represented by coupons matured prior to, or on, the redemption date
shall continue to be payable (but without interest thereon, unless the Bank
shall make default in the payment thereof upon demand) to the respective bearers
of the coupons therefore upon presentation and surrender thereof.
SECTION 5.08 FAILURE TO SURRENDER DEBENTURES CALLED FOR REDEMPTION
In case the holder of any such Debenture so called for
redemption shall fail within 60 days after the date fixed for redemption so to
surrender his Debenture and such unmatured coupons, if any, or shall not within
such time accept payment of the redemption price payable in respect thereof or
give such receipt therefor, if any, as the Bank or the Trustee may require, such
redemption price shall be paid by the Bank to the Trustee, if not theretofore so
paid, and shall be set aside in trust for such holder, either in the deposit
department of the Trustee or in an account in the Bank or some other chartered
bank in Canada in the name of the Trustee, and such setting aside shall for all
purposes be deemed a payment to the debentureholder of the sum so set aside, and
to that extent the said Debenture and coupons, if any, shall thereafter not be
considered as outstanding hereunder and the debentureholder shall have no other
right except to receive payment out of the moneys so paid and deposited upon
surrender and delivery up of his Debenture and coupons, if any, of the
redemption price of such Debenture plus such interest thereon, if any, as the
depositary may allow.
Any moneys so set aside and interest thereon, if any, not
claimed by or paid to the holder of Debentures entitled thereto within 6 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
- 22 -
further liability with respect to such moneys and thereafter the holders of the
Debentures or coupons in respect of which such moneys were so repaid to the Bank
shall have no rights in respect thereof except to obtain payment of the
redemption price of such Debentures plus such interest if any, allowed by the
depositary, subject to any defence the Bank may have.
SECTION 5.09 CANCELLATION AND DESTRUCTION OF DEBENTURES AND COUPONS
All Debentures redeemed under this Article together with the
coupons, if any, appertaining thereto, shall forthwith be cancelled and shall be
delivered to the Trustee and no Debentures shall be issued in substitution
therefor.
SECTION 5.10 SURRENDER OF DEBENTURES FOR CANCELLATION
If the principal moneys due upon any Debenture issued
hereunder shall become payable by redemption or otherwise before the date of
maturity thereof, the person presenting such Debenture for payment must
surrender the same for cancellation together with all unmatured coupons, if any,
appertaining thereto, the Bank nevertheless paying the interest for the fraction
of the current half year (computed on a per diem basis) if the date fixed for
payment be not an interest payment date.
SECTION 5.11 LIQUIDATION, ENFORCEMENT PROCEEDINGS, ETC.
Subject to the provisions of Section 8.03 and as otherwise
hereinafter provided, in the event of proceedings being instituted for the
voluntary or involuntary liquidation or winding-up of the Bank before the
maturity of the Debentures of any series for the time being outstanding (except
for the purpose of effecting a reconstruction of the Bank or its consolidation,
amalgamation or merger with another bank in the manner provided in Article IX
hereof), all of the Debentures shall be redeemed and/or paid by the Bank at the
price at which the Bank could redeem or pay the same (otherwise than out of
sinking fund moneys) on the date on which the resolution was passed or
proceedings were instituted or order granted (whichever shall first occur) for
the liquidation or winding-up of the Bank provided that:
(a) Debentures of the 1987 Series shall not be redeemed or paid by
the Bank under the provisions of this Section 5.11 at any time
prior to May 3, 1972 and
(b) Additional Debentures of any series shall not be redeemed or
paid by the Bank under the provisions of this Section 5.11
before such date, if any, as may be specified for purposes of
this Section 5.11 in such Additional Debentures or in any
indenture under which such Additional Debentures may be
issued.
SECTION 5.12 PURCHASE OF DEBENTURES
Subject to Section 5.02 with respect to the Debentures of the
1987 Series and to such restrictions on purchase as may be set forth in any
Additional Debentures or in any indenture under which Additional Debentures or
in any indenture under which Additional Debentures may be issued, at any time
when the Bank is not in default hereunder, the Bank may purchase Debentures in
the market or by private contract, provided that the prices at which such
Debentures may be purchased shall not exceed the redemption price at which such
Debentures
- 23 -
could, at the time of purchase, be redeemed by the Bank otherwise than out of
sinking fund moneys, plus costs of purchase.
ARTICLE VI
SINKING FUND FOR DEBENTURES OF THE 1987 SERIES
SECTION 6.01 PROVISION OF SINKING FUND
The Bank covenants and agrees with the Trustee that it will
establish a sinking fund for the benefit of the holders of 1987 Debentures by
paying to the Trustee, subject as hereinafter provided, on or before May 3, 1972
and on or before May 2 in each of the years 1973 to 1986, inclusive (each or any
of which dates is hereinafter sometimes referred to as a "1987 Debenture sinking
fund retirement date") without anticipation such amount (hereinafter sometimes
referred to as a "1987 Debenture sinking fund payment") as shall be sufficient
to redeem or otherwise retire on the 1987 Debenture sinking fund retirement date
in each year the principal amount of 1987 Debentures set out below:
On the 1987 Debenture sinking fund retirement date in
1972 .........................$360,000 1980 .........................$490,000
1973 ..........................360,000 1981 ..........................490,000
1974 ..........................360,000 1982 ..........................650,000
1975...........................360,000 1983 ..........................650,000
1976 ..........................360,000 1984 ..........................650,000
1977 ..........................490,000 1985...........................650,000
1978.......................... 490,000 1986 ..........................650,000
1979...........................490,000
SECTION 6.02 SINKING FUND CREDIT
Any 1987 Debentures redeemed or purchased by the Bank pursuant
to Article V hereof, upon delivery of such Debentures to the Trustee (together
with, in the case of coupon Debentures, all unmatured coupons appertaining
thereto) and notwithstanding the cancellation of any of such Debentures; shall
be available to the Bank as a credit in the principal amount thereof
(hereinafter sometimes referred to as a "1987 Debenture sinking fund credit")
against any 1987 Debenture sinking fund payment payable at the time of such
delivery or thereafter as hereinafter provided.
SECTION 6.03 ELECTION BY BANK TO APPLY SINKING FUND CREDIT
The Bank shall have the right to elect by giving written
notice to the Trustee on or before March 15 in each of the years 1972 to 1986
inclusive, to apply a specified principal amount of 1987 Debentures which shall
at the next succeeding 1987 Debenture sinking fund retirement date form the 1987
Debenture sinking fund credit (to the extent not theretofore so applied) in
amounts of $1,000 and multiples thereof in satisfaction in whole or in part of
the 1987 Debenture sinking fund payment required to be made on such next
succeeding 1987 Debenture sinking fund retirement date. Any such written notice
shall specify the principal
- 24 -
amount of 1987 Debenture sinking fund credit which the Bank has elected to apply
as aforesaid. Upon the giving of such notice of election the amount of the 1987
Debenture sinking fund payment which would otherwise have been required to be
made to the Trustee on or before such next succeeding 1987 Debenture sinking
fund retirement date shall be reduced by the lesser of (i) an amount equal to
the principal amount of 1987 Debentures specified in the said notice of election
or (ii) the aggregate principal amount of cancelled 1987 Debentures constituting
sinking fund credits delivered to the Trustee at such 1987 Debenture sinking
fund retirement date (to the extent not theretofore applied in reduction of 1987
Debenture sinking fund payments). Any balance of such 1987 Debenture sinking
fund payment required to be made on such 1987 Debenture sinking fund retirement
date shall be paid by the Bank in cash on or before the said 1987 Debenture
sinking fund retirement date.
SECTION 6.04 ELECTION BY BANK TO REDEEM DEBENTURES
The Bank shall have the right, by giving written notice to the
Trustee prior to March 20 in each of the years 1973 to 1986 inclusive, in lieu
of making the 1987 Debenture sinking fund payment required to be made on the
next succeeding 1987 Debenture sinking fund retirement date or (if 1987
Debentures redeemed or purchased by the Bank are to be applied on account of
such sinking fund payment) in lieu of paying the balance thereof, to require the
Trustee to call for redemption in the name of the Bank on such 1987 Debenture
sinking fund retirement date a principal amount of 1987 Debentures equivalent to
the principal amount of 1987 Debentures required to be retired by such sinking
fund payment or the said balance thereof, as the case may be, provided, however
that the Bank shall not by such notice be relieved of the obligation to make
such sinking fund payment or the balance thereof, as the case may be, on such
sinking fund payment date, unless it shall deposit with the Trustee, prior to
the date specified for redemption, a sum sufficient to effect such redemption.
SECTION 6.05 PURCHASE OR REDEMPTION BY TRUSTEE
Moneys received by the Trustee for the sinking fund for the
1987 Debentures shall be applied by the Trustee to the purchase of 1987
Debentures in the open market or by tender or by private contract at prices not
exceeding the principal amount thereof plus accrued interest and costs of
purchase, until the Trustee has acquired for the sinking fund the principal
amount of such Debentures required for the mandatory sinking fund retirements,
provided that if within a period of 60 days following the receipt by the Trustee
of any such moneys, or within such shorter period as the Bank may from time to
time by written order designate, the Trustee has been unable to complete the
said mandatory sinking fund retirements with cash then held by the Trustee in
the sinking fund pursuant to the provisions of this indenture, the Trustee shall
forthwith apply such moneys (unless such moneys amount to less than $25,000 when
such moneys will only be so applied upon the request of the Bank) upon giving at
least 30 days prior notice to the redemption of 1987 Debentures by lot in an
aggregate principal amount necessary to complete the said mandatory sinking fund
retirements. If at any time any moneys provided for the sinking fund shall
remain in the hands of the Trustee after all the mandatory sinking fund
retirements have been effected such moneys shall be repaid to the Bank. For the
purpose of any redemption by the Trustee under Section 6.04 or this Section 6.05
the Trustee may perform all acts and take all proceedings which under the terms
of Article V could or may be performed or taken by the Bank. The provisions of
Sections 5.04 to 5.08 inclusive shall apply, mutatis
- 25 -
mutandis, to redemptions under Section 6.04 or this Section 6.05. In this
Section 6.05, with respect to action required to be taken by the Trustee on or
after any 1987 Debenture sinking fund retirement date, "mandatory sinking fund
retirements" means the aggregate principal amount of 1987 Debentures which is
required to be retired by the 1987 Debenture sinking fund payment required to be
paid on such 1987 Debenture sinking fund retirement date, or (if 1987 Debentures
redeemed or purchased by the Bank have been applied on account of such sinking
fund payment as 1987 Debenture sinking fund credits) required to be retired by
the balance thereof.
SECTION 6.06 SINKING FUND REDEMPTION PRICE
1987 Debentures called for redemption in lieu of sinking fund
payments as provided in Section 6.04 or out of sinking fund moneys as provided
in Section 6.05 hereof shall be redeemable at the principal amount thereof
together with interest on such principal amount accrued and unpaid to the date
fixed for redemption.
SECTION 6.07 TRUSTEE'S EXPENSES
The Bank from time to time at the request of the Trustee shall
pay to the Trustee, otherwise than out of sinking fund moneys, the cost of
giving notice of redemption of 1987 Debentures in lieu of sinking fund payments
as provided in Section 6.04 or out of sinking fund moneys as provided in Section
6.05 and any other expenses incurred in connection with the operation of the
sinking fund, the intention being that the sinking fund shall not be charged
with such expenses.
SECTION 6.08 CANCELLATION
All 1987 Debentures purchased or redeemed out of sinking fund
moneys shall be forthwith cancelled and delivered to the Trustee and no
Debentures shall be issued in substitution therefor.
SECTION 6.09 TERMINATION OF FUND
Any funds remaining in the sinking fund for the 1987
Debentures when the principal of such Debentures becomes due and payable,
whether at stated maturity or on a declaration pursuant to Section 8.01 hereof,
or otherwise, shall be applied to the payment of such Debentures.
SECTION 6.10 TRUSTEE'S DECISION FINAL
If any question shall arise as to compliance with the
provisions of this Article the decision of the Trustee shall be final.
- 26 -
ARTICLE VII
CERTAIN COVENANTS OF THE BANK
The Bank hereby covenants and agrees with the Trustee as
follows:
SECTION 7.01 TO PAY PRINCIPAL, PREMIUM AND INTEREST
The Bank will duly and punctually pay or cause to be paid to
each holder of Debentures issued hereunder the principal thereof, premium, if
any, and interest accrued thereon in accordance with the terms and subject to
the conditions mentioned herein and the Debentures and coupons, if any,
appertaining thereto.
SECTION 7.02 TO CARRY ON BUSINESS, ETC.
So long as any of the Debentures shall be outstanding, the
Bank will do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence and its rights to carry on the
business of banking and will comply with all laws applicable to the Bank;
provided, however, that nothing herein contained shall prevent any consolidation
or merger of the Bank or any sale or transfer of all or substantially all of its
property and assets permitted by Article IX.
SECTION 7.03 TO PAY TRUSTEE'S REMUNERATION
The Bank will pay to the Trustee reasonable remuneration for
its services as Trustee hereunder as may be agreed upon by the Trustee and the
Bank and will also pay all costs, charges and expenses properly incurred by the
Trustee in connection with the trusts hereof and also (in addition to any right
of indemnity by law given to the Trustee) will at all times keep indemnified the
Trustee against all actions, proceedings, costs, claims and demands in respect
of any matter or thing done or omitted by it in any way relating to this
indenture. The said remuneration will be payable notwithstanding that a curator
under the Bank Act or a liquidator under the Winding-Up Act of Canada shall have
been appointed or the trusts of this indenture shall be in course of
administration by or under the direction of the Court.
SECTION 7.04 RESTRICTION ON OTHER INDEBTEDNESS
The Bank will not, so long as any of the 1987 Debentures shall
be outstanding, create or issue any Long Term Debt other than the Debentures
except Long Term Debt ranking on a parity with the Debentures or ranking junior
to the Debentures.
ARTICLE VIII
REMEDIES IN CASE OF DEFAULT
SECTION 8.01 ACCELERATION OF MATURITY ON DEFAULT
Upon the happening of any one or more of the following events
(herein sometimes called "events of default") namely:
- 27 -
(a) if the Bank makes default in payment of any interest due on
the Debentures or any of them, or in any sinking fund payment
prescribed herein or in any Debentures, and any such default
shall have continued for a period of 30 days;
(b) if the Bank makes default in payment of the principal of or
premium, if any, on any Debenture when the same becomes due
and payable;
(c) if the Bank shall become insolvent or bankrupt or subject to
the provisions of the Winding-up Act of Canada, or go into
liquidation, either voluntary or under an order of a court of
competent jurisdiction, or otherwise acknowledge its
insolvency (provided that a resolution or order for winding up
the Bank, with a view to its reconstruction or its
consolidation, amalgamation or merger with another bank or the
transfer of its assets as an entirety to such other bank, as
provided in Article IX hereof, shall not constitute an event
of default under this Section 8.01 if such last-mentioned bank
shall, as a part of such reconstruction, consolidation,
amalgamation, merger or transfer, and, within 90 days from the
passing of the resolution or the date of the order or within
such further period of time as may be allowed by the Trustee,
comply with the conditions to that end stated in Article IX
hereof);
(d) if a curator, liquidator, receiver, receiver and manager, or
trustee in bankruptcy of the Bank be appointed;
(e) if the Bank shall make default in observing or performing any
other covenant or condition of this trust indenture on its
part to be observed or performed and if such default shall
continue for a period of 60 days after a notice in writing has
been given by the Trustee to the Bank, specifying such default
and requiring the Bank to put an end to the same, which notice
the Trustee may give on its own initiative and shall give when
required to do so by the holders of 10% in principal amount of
the Debentures then outstanding;
then in each and every such event, subject to the provisions of Sections 8.02,
8.03 and 8.04, the Trustee may in its discretion and shall upon the request in
writing of the holders of 25% in principal amount of the Debentures then
outstanding, declare the principal of and interest on the Debentures, together
with the premium, if any, which would have been payable thereon if the Bank had
redeemed the Debentures (otherwise than for sinking fund purposes) on the date
of such declaration or on the interest payment date next following any such date
in the case of Debentures redeemable only on an interest payment date or on the
earliest date thereafter or which such Debentures may be redeemed by the Bank,
to be due and payable and the same shall forthwith become immediately due and
payable to the Trustee on demand, anything therein or herein contained to the
contrary notwithstanding, and the Bank shall (subject to the provisions of
Article III) pay forthwith to the Trustee on demand for the benefit of the
holders of the Debentures the amount of the principal, premium, if any, as
aforesaid, and interest then accrued on all the Debentures and all other moneys
payable under the provisions hereof together with interest at the respective
rates of interest borne by the Debentures on such principal, premium, if any,
and interest from the date of the said declaration until payment is received by
the Trustee, and such payment when made shall be deemed to have been made on the
Debentures and any
- 28 -
moneys so received by the Trustee shall be applied in the manner hereinafter
provided in Section 8.06.
SECTION 8.02 DEBENTURES NOT TO BE PAYABLE BEFORE SPECIFIED DATE
Notwithstanding the provisions of Section 8.01 or any
declaration made by the Trustee pursuant thereto but subject to the proviso set
forth below and to the provisions of Section 8.03,
(a) indebtedness evidenced by the Debentures of the 1987 Series
shall not be paid by the Bank at any time prior to May 3,
1972;
(b) indebtedness evidenced by Additional Debentures of any series
shall not be paid by the Bank before such date, if any, as may
be specified for the purpose of this Section 8.02 in such
Additional Debentures or in any indenture under which such
Additional Debentures may be issued;
provided, however, that the provisions of this Section 8.02 shall not be deemed
to prevent the holder of any Debenture or the Trustee on behalf of any such
holder 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 to receive
payment of any such amounts.
SECTION 8.03 PROVISION FOR REDEMPTION OR PAYMENT OF DEBENTURES SUBJECT TO
RESTRICTIONS UNDER SECTIONS 5.11 OR 8.02
In the case of any Debentures which cannot be redeemed or the
indebtedness evidenced by which cannot be paid by the Bank by reason of the
restrictions set forth in Section 5.11 or Section 8.02 hereof, upon the
occurrence of any of the events specified in Section 5.11 or upon any
declaration being made by the Trustee under the provisions of Section 8.01, the
Bank shall provide for the redemption of such Debentures or the payment of such
indebtedness by setting aside in trust or by depositing with the Trustee or any
paying agent to the order of the Trustee such amount or amounts as will on the
date when such redemption or payment can first be made by the Bank without being
subject to the aforesaid restrictions, be sufficient to pay on such date the
redemption price of such Debentures or the amount of such indebtedness (together
with the premium, if any, which would have been payable thereon if the Bank had
redeemed the Debentures otherwise than for sinking fund purposes, on the date of
such payment or on the interest payment date next following any such date in the
case of Debentures redeemable only on an interest payment date or on the
earliest date thereafter on which such Debentures may be redeemed by the Bank)
including interest at the rate specified in such Debentures in each case accrued
to the date of actual redemption or payment.
The Bank shall also deposit with the Trustee a sum sufficient
to pay any charges or expenses which may be incurred by the Trustee in
connection with such redemption or payment.
From the sums set aside in trust or so deposited, the Bank or
the Trustee, as the case may be, when such redemption or payment can be made by
the Bank without being subject
- 29 -
to the aforesaid restrictions, shall call for redemption and redeem and pay or
cause to be paid to the holders of such Debentures so called for redemption upon
the surrender of such Debentures with the unmatured coupons, if any,
appertaining thereto the redemption price or, in a case other than redemption,
shall pay or cause to be paid to the holders of such Debentures the indebtedness
evidenced by such Debentures together with interest thereon accrued to the date
of payment. In the case of any redemption by the Trustee pursuant to the
provisions of this Section 8.03, the Trustee may perform all acts and take all
proceedings which under the terms of Article V could or may be performed or
taken by the Bank and the provisions of Sections 5.04 to 5.08 inclusive shall
apply mutatis mutandis to such redemptions.
In respect of any setting aside or deposit under the
provisions of this Section 8.03 by reason of the making of any declaration under
the provisions of Section 8.01, the amount to be set aside or deposited pursuant
to the provisions of this Section 8.03 shall be such amount as shall bear the
same proportion to the aggregate principal amount of Debentures with respect to
which such setting aside or deposit is required to be made as the amount paid by
the Bank under Section 8.01 bears to the aggregate principal amount of all
Debentures in respect of which payment is being made under the provisions of
Section 8.01 at such time outstanding.
SECTION 8.04 WAIVER OF DEFAULT
Upon the happening of any default hereunder, except default in
payment of principal moneys at maturity, and in addition to the powers
exercisable by the debentureholders by extraordinary resolution, the holders of
not less than 51% in principal amount of the Debentures which shall then be
outstanding shall have power by an instrument or instruments in writing or by
the affirmative vote of such holders at a meeting duly convened and held as
hereinafter provided to require the Trustee to waive the default and the Trustee
shall thereupon waive the default upon such terms and conditions as such holders
shall prescribe. So long as it has not become bound as provided in this Article
to declare the principal of and premium, if any, as aforesaid and interest on
all the Debentures then outstanding to be due and payable, or to obtain and
enforce payment of the same, the Trustee shall have power to waive any default
arising hereunder, except default in payment of principal moneys at maturity, if
in the opinion of the Trustee the same shall have been cured, or adequate
satisfaction made therefor, upon such terms and conditions as the Trustee may
deem advisable. Provided always that no act or omission either of the Trustee or
of the debentureholders in the premises shall extend to or be taken in any
manner whatsoever to affect any subsequent default or the rights resulting
therefrom.
SECTION 8.05 RIGHT OF TRUSTEE TO ENFORCE PAYMENT
Subject to the provisions of Sections 8.02 and 8.04, in case
the Bank shall fail to pay to the Trustee, on demand following a declaration
made by the Trustee pursuant to Section 8.01, the principal of and premium, if
any, as aforesaid and interest on all the Debentures then outstanding, together
with any other amounts due hereunder (including any amounts to be set aside or
deposited under Section 8.03), the Trustee may in its discretion and, upon the
request in writing of the holders of not less than 25% in principal amount of
the Debentures then outstanding and upon being indemnified to its reasonable
satisfaction against all costs, expenses and liabilities to be incurred, shall
proceed in its name as Trustee hereunder to obtain or enforce
- 30 -
payment of the said principal of and premium, if any, and interest on all the
Debentures then outstanding together with any other amounts due hereunder
(including any amounts to be set aside or deposited under Section 8.03), by any
remedy provided by law either by legal proceedings or otherwise.
SECTION 8.06 APPLICATION OF MONEYS BY TRUSTEE
Except as in Sections 8.03 and 8.07 and as elsewhere herein
otherwise expressly provided, any moneys received by the Trustee from the Bank
pursuant to the foregoing Sections of this Article VIII, or as a result of legal
or other proceedings or from any trustee in bankruptcy or curator or liquidator
of the Bank, shall be applied, together with any other moneys in the hands of
the Trustee available for such purposes, in the first place to pay or reimburse
to the Trustee the costs, charges, expenses, advances and compensation to the
Trustee in or about the execution of its trust, or otherwise in relation hereto,
with interest thereon as herein provided, and all taxes, assessments and other
charges ranking in priority to the Debentures and coupons, if any, and the
residue of the said moneys shall be applied as follows:
(a) Firstly, the said moneys shall be applied in or towards
payment of the principal of all of the Debentures for the time
being outstanding other than Debentures in respect of which
provision for payment has been made by the Bank under Section
8.03, and thereafter in or towards payment of the premium, if
any, on such Debentures, and lastly in or towards payment of
the accrued and unpaid interest and interest on overdue
interest and premium, if any, on such Debentures (or if the
debentureholders by instrument in writing signed by the
holders of not less than 51% in principal amount of the
Debentures for the time being outstanding or by extraordinary
resolution passed at a meeting of debentureholders shall have
directed payments to be made in accordance with any other
order of priority, or without priority as between principal,
premium, if any, and interest, then such moneys shall by
applied in accordance with such direction) provided that no
payment shall be made on any interest or coupon the time of
payment of which has been extended, whether by purchase or
funding or otherwise, except in accordance with the provisions
of Section 8.08.
(b) The surplus, if any, of such moneys shall be paid to the Bank
or its assigns.
SECTION 8.07 APPLICATION OF MONEYS WHERE RESTRICTIONS APPLY BY REASON OF SECTION
8.02
If by reason of any of the provisions of Section 8.02 no
moneys are received by the Trustee on account of the principal amount of the
Debentures of one or more series, the principal amount of and premium, if any,
and interest on such Debentures shall not be paid by the Trustee pursuant to the
provisions of subsection (a) of Section 8.06. In the event that moneys are
subsequently received by the Trustee on account of the principal amount of such
Debentures of any series (including moneys held by the Trustee under Section
8.03 when payment of such moneys is no longer restricted by Section 8.02), such
moneys shall be applied firstly in or towards payment of the principal of all
the Debentures of such series at such time outstanding and thereafter in or
towards payment of the premium, if any, on such Debentures, and lastly in or
towards payment of the accrued and unpaid interest and interest on overdue
interest and
- 31 -
premium, if any, on such Debentures, all to the exclusion of all other
Debentures until the aggregate amount paid on account of the principal,
premium, if any, and interest on each Debenture of such series is the same
proportion of the total outstanding principal, premium, if any, and interest
on such Debenture as the aggregate amounts theretofor paid with respect to
Debentures of all other series which were not at such time subject to any
restriction as to payment by reason of the provisions of Section 8.02, were
of the aggregate principal amount of all Debentures of such other series.
SECTION 8.08 BANK NOT TO EXTEND TIME FOR PAYMENT OF INTEREST
In order to prevent any accumulation after maturity of
interest or coupons, the Bank agrees and covenants that it will not, directly or
indirectly, extend or assent to the extension of time for payment of any coupons
or interest upon any Debenture, and that it will not, directly or indirectly, be
a party to or approve any such arrangement by purchasing or funding 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 or not such extension be by or
with the consent of the Bank, such coupons or interest shall not be entitled, in
case of default hereunder, to the benefit of this trust indenture, except
subject to the prior payment in full of the principal of and premium, if any, on
all Debentures and of all matured coupons and interest on such Debentures, the
payment of which has not been so extended. All coupons shall, when paid, be
forthwith cancelled and handed to the Trustee as evidence of such payment and
cancellation.
SECTION 8.09 TRUSTEE MAY DEFER DISTRIBUTION
The Trustee shall not be bound to apply or make any partial or
interim payment of any moneys coming into its hands if the amount so received by
it is insufficient to make a distribution of at least 2% of the aggregate
principal amount of the outstanding Debentures, but it may retain the money so
received by it and deal with same as provided in Article X hereof until the
money or the investments representing the same, with the income derived
therefrom, together with any other moneys for the time being under its control,
shall be sufficient and available for the said purpose or until it shall
consider it advisable to apply the same in the manner hereinbefore set forth.
SECTION 8.10 NOTICE OF PAYMENT BY TRUSTEE
Not less than 21 days' notice shall be given, by the Trustee
of any payment to be made under this Article to the debentureholders. Such
notice shall state the time and place when and where such payment is to be made,
and also the liability hereunder upon which it is to be applied. After the day
so fixed, unless payment shall have been duly demanded and have been refused,
the debentureholders will be entitled to interest only on the remainder, if any,
of the principal moneys, premium, if any, and interest due to them,
respectively, on the Debentures, after deduction of the respective amounts
payable in respect thereof on the day so fixed.
SECTION 8.11 RECEIPT OF DEBENTUREHOLDER GOOD DISCHARGE
The receipt of the bearer, or, if registered as to principal
only, of the registered holder, of each of the Debentures for moneys paid on
account of the principal thereof, and premium, if any, thereon and of the
registered holder of fully registered Debentures for moneys
- 32 -
paid on account of the principal thereof, premium, if any, and interest due
thereon, and of the bearer of a coupon for moneys paid on account of interest
shall be a good discharge to the Trustee and to the Bank. Delivery by the bearer
of a Debenture payable to bearer of a coupon and delivery by the registered
holder thereof of a Debenture registered as to principal or of a fully
registered Debenture shall, moreover, be a good discharge for the principal
moneys, premium, if any, and interest evidenced by such instruments
respectively.
SECTION 8.12 TRUSTEE MAY DEMAND PRODUCTION OF DEBENTURES
The Trustee shall have the right at the time it makes any
payment of principal, premium or interest required by this Article to demand of
the person claiming such payment the production of the actual Debenture or
coupon under which he claims such payment be made, and may cause to be endorsed
on the same a memorandum of the amount so paid and the date of payment, but the
Trustee may, in its discretion, dispense with such production and endorsement in
any special case, upon such indemnity being given as it shall deem sufficient.
SECTION 8.13 REMEDIES CUMULATIVE
No remedy herein conferred upon or reserved to the Trustee, or
upon or to the holders of Debentures, is intended to be exclusive of any other
remedy, but each and every such remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or now existing or hereafter to
exist by law or by statute.
SECTION 8.14 JUDGMENT AGAINST THE BANK
The Bank covenants and agrees with the Trustee that, in case
of any judicial or other proceedings to obtain judgment for the principal of or
interest or premium on the Debentures, judgment may be rendered against it in
favour of the debentureholders or in favour of the Trustee, as trustee for the
debentureholders, for any amount which may remain due in respect of the
Debentures and premium, if any, and the interest thereon and any other moneys
payable hereunder by the Bank.
ARTICLE IX
CONSOLIDATION AND AMALGAMATION
SECTION 9.01 SUCCESSOR BANK
Nothing in this indenture shall prevent the reorganization or
reconstruction of the Bank or the consolidation, amalgamation or merger of the
Bank with any other bank or shall prevent the transfer by the Bank of its
undertaking and assets as a whole or substantially as a whole to another bank,
lawfully entitled to acquire and operate the same, provided that the conditions
of this Article be observed, and provided also that every such successor or
assign shall, as part of such reorganization, reconstruction, consolidation,
amalgamation, merger or transfer, and in consideration thereof, enter into and
execute an indenture or indentures supplemental hereto in favour of the Trustee
whereby such successor or assign covenants:
- 33 -
(a) to pay punctually when due the principal moneys, premium, if
any, interest and other moneys due or which may become due
hereunder; and
(b) to perform and observe punctually all the obligations of the
Bank hereunder and under and in respect of all outstanding
Debentures; and
(c) to observe and perform every covenant, stipulation, promise,
undertaking, condition and agreement of the Bank herein
contained as fully and completely as if it had itself executed
this indenture as party of the First Part hereto and had
expressly agreed herein to observe and perform the same,
and shall sign and execute all such other deeds and documents as the Trustee may
be advised by Counsel are necessary or advisable in the premises.
Provided that every such reorganization, reconstruction,
consolidation, amalgamation, merger or transfer shall be made on such terms and
at such times and otherwise in such manner as shall be approved by the Bank and
by the Trustee as not being prejudicial to the interests of the debentureholders
and as preserving and not impairing the rights and powers of the Trustee and the
debentureholders hereunder, and upon such approval and consent the Trustee shall
facilitate the same in all respects, and may give such consents and sign,
execute or join in such documents and do such acts as in its discretion may be
thought advisable in order that such reorganization, reconstruction,
consolidation, amalgamation, merger or transfer may be carried out. The Bank
shall furnish to the Trustee an opinion of Counsel to the effect that such
reorganization, reconstruction, consolidation, amalgamation, merger or transfer
is on such terms as will substantially preserve and not impair the rights and
powers of the Trustee and the debentureholders hereunder and that all the
provisions of this Article have been complied with, and the Trustee shall incur
no liability by reason of reliance thereon.
SECTION 9.02 SUCCESSOR TO POSSESS POWERS OF THE BANK
In case of any reorganization, reconstruction, consolidation,
amalgamation or merger as aforesaid, or in case of such transfer of the
undertaking and assets of the Bank as a whole or substantially as a whole, the
corporation formed by such consolidation or with which the Bank shall have been
amalgamated or merged or to which such transfer shall have been made, upon
executing an indenture or indentures as provided in Section 9.01 shall succeed
to and be substituted for the Bank with the same effect as if it had been named
herein as the party of the First Part hereto, and shall possess and may exercise
each and every right of the Bank hereunder.
ARTICLE X
INVESTMENT OF TRUST FUNDS
SECTION 10.01
Any moneys held by the Trustee, which under the trusts of this
indenture may be invested, shall be invested and reinvested by the Trustee in
its name or under its control in any securities in which trustees are, by the
laws of the Province of Ontario, authorized to invest. Pending such investment,
such moneys shall be placed by the Trustee on deposit at interest at the
- 34 -
then current bank rate in the Bank or in some other chartered bank in Canada or,
with the consent of the Bank, in the deposit department of the Trustee, at the
rate of interest then current on similar deposits.
ARTICLE XI
SUITS BY DEBENTUREHOLDERS AND TRUSTEE
SECTION 11.01 DEBENTUREHOLDERS MAY NOT XXX
No holder of any Debenture or coupon shall have any right to
institute any suit, action or proceeding for payment of any principal, premium
or interest owing on any Debenture or coupon, or for the execution of any trust
or power hereunder, or for the appointment of a liquidator, receiver or receiver
and manager or to have the Bank wound up, or for any other remedy hereunder,
unless such holder shall previously have given to the Trustee written notice of
the happening of an event of default hereunder and of the continuance thereof
for 30 days; nor unless the holders of at least 25% in principal amount of the
Debentures then outstanding shall have made written request to the Trustee and
shall have afforded to it reasonable opportunities either itself to proceed to
exercise the powers hereinbefore granted or to institute an action, suit or
proceeding in its own name for such purpose; nor unless also such
debentureholders shall have offered to the Trustee, when so requested by the
Trustee, sufficient funds and security and indemnity satisfactory to it against
the costs, expenses and liabilities to be incurred therein or thereby; nor
unless also the Trustee shall have failed to act within a reasonable time after
such notification, request and offer of indemnity; and such notification,
request and offer of indemnity are hereby declared in every such case, at the
option of the Trustee, to be conditions precedent to any such proceeding or for
any other remedy hereunder by or on behalf of the holder of any Debentures or
coupons.
SECTION 11.02 TRUSTEE NOT REQUIRED TO POSSESS DEBENTURES
All rights of action under this trust indenture may be
enforced by the Trustee without the possession of any of the Debentures or
coupons or the production thereof on any trial or other proceedings relative
thereto.
SECTION 11.03 TRUSTEE MAY INSTITUTE ALL PROCEEDINGS
The Trustee shall have the power to institute and maintain all
and any such suits and proceedings as it may decide shall be necessary or
expedient or as the Trustee may decide shall be necessary or expedient to
protect its interest and the interests of the holders of the Debentures.
SECTION 11.04 DEBENTUREHOLDERS MAY WAIVE DEFAULT
In case any action, suit or other proceeding shall have been
brought by the Trustee or by any debentureholder after failure of the Trustee to
act, the debentureholders may, by extraordinary resolution as hereinafter
defined, direct the Trustee or the debentureholder bringing any such action,
suit or other proceeding to waive the default in respect of which any such
action, suit or other proceeding shall have been brought upon payment of the
costs, charges and
- 35 -
expenses incurred by the Trustee or the debentureholder, as the case may be, in
connection therewith, and to stay or discontinue or otherwise deal with any such
action, suit or other proceeding, and such direction shall be binding upon and
shall be observed by the Trustee or by such debentureholder, as the case may be.
SECTION 11.05 IMMUNITY OF OFFICERS, SHAREHOLDERS AND DIRECTORS
The obligations on the part of the Bank expressed herein and
in the Debentures and coupons are solely corporate obligations and no action,
suit or proceeding shall be instituted or maintained in respect thereof against
any officer, director or shareholder (past, present or future) of the Bank,
either directly or through the Bank or otherwise.
Nothing contained herein or in the Debentures shall be taken,
however, to prevent recourse to and the enforcement of the liability of any
shareholder of the Bank for uncalled capital or the liability of any such
shareholder upon unsatisfied calls.
ARTICLE XII
NEW TRUSTEE
SECTION 12.01 APPOINTMENT OF NEW TRUSTEE
The Trustee may resign its trust and be discharged from all
further duties and liabilities hereunder after giving 3 months' notice in
writing to the Bank; provided, however, that such shorter notice may be given as
the Bank shall accept as sufficient. In case of the resignation of the Trustee
or its removal from office or incapacity to act, its successor shall be
appointed at once by the Bank and the Trustee jointly, provided that such
successor so appointed shall be a trust company qualified to carry on business
in the Province of Ontario; but should the Bank and the Trustee fail to agree on
such appointment then such successor shall be appointed by a Judge of the
Supreme Court of Ontario upon the application of the Bank upon such notice to
the debentureholders and given in such manner as the said Judge may direct, or
upon the application of debentureholders upon notice to the Bank. 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 as Trustee, without any
further assurance, conveyance, act or deed, but there shall be immediately
executed, at the expense of the Bank, all such instruments, if any, as the new
Trustee may be advised by Counsel are necessary or advisable.
SECTION 12.02 TRANSFER OF POWERS TO NEW TRUSTEE
Any such new or successor Trustee shall, forthwith upon
appointment, become vested with all the estates, properties, rights, powers and
trusts of its predecessors in the trusts hereunder, with like effect as if
originally named as Trustee herein; but nevertheless, upon the written request
of the successor Trustee or of the Bank, the Trustee ceasing to act shall
execute and deliver an instrument assigning and transferring to such successor
Trustee, upon the trust herein expressed, all the rights, powers and trusts of
the Trustee so ceasing to act, and shall duly assign, transfer and deliver all
property and money held by such Trustee to the successor Trustee so appointed in
its place. Should any instrument in writing from the Bank be required by any new
Trustee for more fully and certainly vesting in and confirming to it such
estates, properties,
- 36 -
rights, powers and trusts, then any and all instruments in writing shall, on
request of said new Trustee, be made, executed, acknowledged and delivered by
the Bank.
SECTION 12.03 AMALGAMATION ETC. OF TRUSTEE
Any company into which the Trustee may be merged or with which
it may be consolidated or amalgamated, or any company resulting from any merger,
consolidation or amalgamation to which the Trustee shall be a party, shall be
the successor Trustee under this trust indenture without the execution of any
instrument or any further act.
ARTICLE XIII
NON-PRODUCTION OF DEBENTURES
SECTION 13.01
In the event of a holder not producing any Debenture or coupon
upon the redemption, maturity or other date of payment thereof, a certificate of
the Trustee hereunder of the deposit with it for payment of the principal amount
of such Debenture and premium, if any, and of such interest as may be due
thereon shall avail as a cancellation of such Debenture or coupon for the
purposes hereof, and as a sufficient authorization to the Bank to cancel the
entries relating to such Debenture or coupon.
ARTICLE XIV
NOTICES
SECTION 14.01 NOTICE TO BANK
Any notice to the Bank under the provisions hereof shall be
valid and effective if given by registered letter postage prepaid addressed to
the Bank at Toronto Dominion Xxxx Xxxxx, Xxxxxxx-Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx, and shall be deemed to have been effectively given from the time when
in the ordinary course of post the said letter 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.
SECTION 14.02 NOTICE TO DEBENTUREHOLDERS
Except as herein otherwise expressly provided, all notices to
be given hereunder with respect to the Debentures shall be deemed to be validly
given to the holders of registered Debentures if sent through the ordinary post,
postage prepaid, by letter or circular addressed to such holders at their post
office addresses appearing in any of the registers hereinbefore mentioned, and
to the holders of unregistered Debentures if published in one or more daily
newspapers of general circulation published in the respective cities in which
the Bank is for the time being required to maintain a transfer office for the
Debentures, and in a newspaper or newspapers in such other place or places, if
any, as the directors of the Bank may determine or the Trustee require, in two
consecutive issues of such newspapers. Any notice so published or
- 37 -
served by post shall be deemed to have been given or served on the day upon
which it is posted or first published as aforesaid.
SECTION 14.03 NOTICE TO THE TRUSTEE
Any notice to the Trustee under the provisions hereof shall be
valid and effective if given by registered letter postage prepaid addressed to
the Trustee at 000 Xxx Xxxxxx, Xxxxxxx, Xxxxxxx, and shall be deemed to have
been effectively given from the time when in ordinary course of post the said
letter should have reached its destination. The Trustee may from time to time
notify the Bank of a change in address which thereafter, until changed by like
notice, shall be the address of the Trustee for all purposes of this trust
indenture.
ARTICLE XV
DEBENTUREHOLDERS' MEETINGS
SECTION 15.01
Meetings of debentureholders shall be convened, held and
conducted in the manner following:
(a) CALLING OF MEETINGS. At any time and from time to time the
Trustee or the Bank may, and the Trustee shall on being served
with a requisition signed by debentureholders representing at
least 10% of the aggregate principal amount of the Debentures
then outstanding, convene a meeting of the debentureholders.
In the event of the Trustee failing to convene a meeting after
being thereunto required by the debentureholders as
hereinbefore set forth, such debentureholders representing the
requisite percentage of Debentures as aforesaid may themselves
convene such meeting and the notice calling such meeting may
be signed by such person as such debentureholders may specify.
Every such meeting shall be held at the City of Toronto or at
such other place as the Trustee may in any case determine or
approve.
(b) SERIAL MEETINGS. If the business to be transacted at any
meeting by resolution, extraordinary or otherwise, especially
affects the rights of the holders of any series or part of a
series of Debentures in a manner or to an extent substantially
differing from that in or to which the rights of the holders
of any other series or part thereof are affected, then
reference to such fact indicating each series or part of a
series so especially affected shall be made in the notice of
the meeting and the meeting shall be and be deemed to be and
is herein referred to as a serial meeting.
(c) NOTICE OF MEETINGS. At least 21 clear days' previous notice of
such meeting shall be given to the debenturebolders and such
notice shall state the time when, and the place where, said
meeting is to be held and shall specify in general terms the
nature of the business to be transacted thereat, but it shall
not be necessary to specify in the notice the text of the
resolutions to be passed. Notices shall be given in the manner
set forth in Article XIV hereof and a copy thereof shall be
sent by
- 38 -
post or delivered to the Trustee unless the meeting has been
called by it. It shall not be necessary to specify in the
notice of any adjournment of a meeting the nature of the
business to be transacted at the adjourned meeting. The
accidental omission to give such notice to or the non-receipt
of any such notice by a debentureholder shall not invalidate
any resolution passed at such meeting.
(d) QUORUM. At any meeting of the debentureholders, subject as
hereinafter provided, a quorum shall consist of 2 or more
persons present in person holding either personally or as
proxies for holders not less than a majority in principal
amount of the Debentures then outstanding. If, however, the
meeting is a serial meeting, a quorum shall consist of 2 or
more persons present in person holding either personally or as
proxies for holders not less than a majority in principal
amount of the Debentures then outstanding and also not less
than a majority in principal amount of the outstanding
Debentures of each series or part thereof especially affected
as aforesaid. In the event of such quorum not being present on
the date for which the meeting is called within 30 minutes
after the time fixed for the holding of such meeting, the
meeting shall be adjourned to be held at a place and upon a
date and at an hour to be fixed by the Trustee who shall give
not less than 14 clear days' notice of the date and time to
which such meeting is adjourned and of the place where such
adjourned meeting is to be held and at such adjourned meeting
a quorum shall consist of the debentureholders then and there
represented in person or by proxy and voting.
(e) CHAIRMAN. Some person, who need not be a debentureholder,
nominated in writing by the Trustee, shall be Chairman of the
meeting but, if no person is so nominated or if the person so
nominated is not present within 25 minutes after the time
fixed for the holding of the meeting, the debentureholders and
proxies for debentureholders present shall choose one of their
number to be Chairman.
(f) CERTAIN DEBENTURES DEEMED NOT OUTSTANDING. Debentures held by
or for the Bank shall not be deemed to be outstanding
Debentures for any purpose of this Article provided, however,
that Debentures pledged or charged by the Bank as security for
loans or other indebtedness shall, for all such purposes, be
deemed to be outstanding Debentures and the pledgees thereof
or holders of any lien or charge thereon shall be qualified
and entitled to sign any requisition or notice, attend all
meetings of debentureholders, and vote thereat in respect of
the Debentures so pledged or charged by the Bank, unless such
pledgees or holders are expressly precluded under the terms of
the pledge or charge from freely exercising in their
discretion, uncontrolled by the Bank, the right to vote such
Debentures, in which case the terms of the pledge or charge
shall govern, but in no event shall the Bank have the right to
vote such Debentures.
(g) MAJORITY VOTE ON ORDINARY RESOLUTION. Every question submitted
to a meeting, except an extraordinary resolution, shall be
decided in the first place by a majority of the votes given on
a show of hands and shall be binding on all debentureholders.
In the case of an equality of votes on a show of hands the
Chairman shall have a casting vote.
- 39 -
(h) POLL TO BE TAKEN ON EXTRAORDINARY RESOLUTION. A poll shall be
taken on every extraordinary resolution and, when requested by
a debentureholder or by a proxy representing a debentureholder
holding at least $10,000 principal amount of the Debentures,
on any other question or resolution.
(i) TAKING OF POLL. If at any meeting a poll is so demanded as
aforesaid on the election of a Chairman or on a question of
adjournment, it shall be taken forthwith. If at any meeting a
poll is so demanded on any other question, or an extraordinary
resolution is to be voted upon, a poll shall be taken in such
manner and either at once or after an adjournment as the
Chairman directs. The result of a poll shall be deemed to be
the decision of the meeting at which the poll was demanded and
shall be binding on all debentureholders.
(j) VOTES ON A POLL. At any meeting of the debentureholders each
debentureholder shall on a poll have one vote for every $1,000
principal amount of Debentures of which he shall be the
holder. Votes may be given in person or by proxy and a proxy
need not be a debentureholder.
(k) VOTES AT A SERIAL MEETING. At a serial meeting no ordinary
resolution shall be deemed to have been validly passed or
adopted unless there shall have been given in favour thereof
not less than a majority of the votes given respectively by
the holders of each series of Debentures or part thereof
especially affected as aforesaid as well as a majority of all
the votes given thereon.
(l) TRUSTEE MAY MAKE REGULATIONS. The Trustee may (for the purpose
of enabling the holders of unregistered Debentures to be
present and vote at any meeting without producing their
Debentures and of enabling them and the holders of registered
Debentures to be represented and vote at any such meeting by
proxy and of lodging such proxies at some place or places
other than the place where the meeting is to be held) from
time to time make and from time to time vary such regulations
as it shall think fit providing for and governing:
(i) the deposit of unregistered Debentures with any bank,
banker, trust company or other depositary
satisfactory to the Trustee (which depositary may be
a holder of such Debentures in cases so approved by
the Trustee), and for the issue to the persons so
depositing such Debentures of certificates by such
depositary, in terms satisfactory to the Trustee,
that such Debentures have been deposited, which
certificates will entitle the persons named therein
to be present and vote at any such meeting, and at
any adjournment thereof, and to appoint proxies to
represent them and vote for them at any such meeting,
and at any adjournment thereof, in the same way as if
the persons so present and voting either personally
or by proxy were the actual bearers of the Debentures
in respect of which such certificates shall have been
issued;
(ii) the voting by proxy by holders of registered
Debentures and the form of instrument appointing
proxies where authorized under such regulations
- 40 -
and the manner in which the same shall be executed,
and the production of the authority of any person
signing on behalf of the giver of such proxy;
(iii) the lodging of such certificates and of the
instruments appointing proxies at such place or
places and in such custody as the Trustee directs and
the time, if any, before the holding of the meeting
or adjourned meeting by which the same shall be
deposited; and
(iv) the forwarding by the custodian of particulars of
such certificates and instruments appointing proxies
by letter, cable, telegraph, radio or other means of
electronic communication before the meeting to the
Bank or to the Trustee or to the Chairman of the
meeting and providing that certificates or
instruments appointing proxies so lodged and
particulars of which are forwarded in accordance with
such regulations will confer the same right to vote
as though the certificates or instruments themselves
were produced at the meeting.
Any regulations so made shall be binding and effective and
votes given in accordance therewith shall be valid and shall
be counted. The Trustee may dispense with any such deposit and
permit debentureholders to make proof of ownership in such
other manner, if any, as the Trustee may approve. Save as
aforesaid the only persons who shall be recognized at any
meeting as the holders of 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
registered debentureholders.
(m) PERSONS WHO MAY ATTEND MEETINGS. The Bank and the Trustee by
their respective officers and directors may attend any meeting
of debentureholders. The legal advisers of the Bank and of the
Trustee may also attend any such meeting.
SECTION 15.02 POWERS EXERCISABLE BY EXTRAORDINARY RESOLUTION
A meeting of the debentureholders shall, in addition to any
Powers hereinbefore given, have the following powers, exercisable from time to
time by extraordinary resolution only except where otherwise provided herein:
(a) Power to sanction any scheme for the reconstruction or
reorganization of the Bank or for the consolidation,
amalgamation or merger of the Bank with any other bank or for
the transfer of the undertaking and assets of the Bank as a
whole or substantially as a whole, provided that no such
sanction shall be necessary for a reconstruction,
reorganization, consolidation, amalgamation, merger or
transfer under the provisions of Article IX hereof;
(b) Power to require the Trustee to exercise or refrain from
exercising any of the powers conferred upon it by this trust
indenture or to waive any default on the part of the Bank,
upon such terms as may be decided upon;
- 41 -
(c) Power to remove the Trustee from office and to appoint a new
Trustee or Trustees;
(d) Power to sanction any change whatsoever of any provision of
the Debentures or of the coupons or of this trust indenture
and any modification, alteration, abrogation, compromise or
arrangement of or in respect of the rights of the
debentureholders against the Bank or against its property,
whether such rights shall arise under the provisions of this
trust indenture or otherwise;
(e) Power to sanction the exchange of the Debentures for or the
conversion thereof into shares, bonds, debentures or other
securities of the Bank or of any corporation formed or to be
formed;
(f) Power to assent to any compromise or arrangement by the Bank
with any creditor, creditors or class or classes of creditors
or with the holders of any shares or securities of the Bank;
(g) Power to authorize the Trustee, in the event of a curator or a
liquidator being appointed, for and on behalf of the
debentureholders, and in addition to any claim or debt proved
or made for its own account as Trustee hereunder, to file and
prove a claim or debt against the Bank and its property for an
amount equivalent to the aggregate amount which may be payable
in respect of the Debentures and vote such claim or debt at
meetings of creditors and generally act for and on behalf of
the debentureholders in such proceedings as such extraordinary
resolution may provide;
(h) Power to restrain any holder of any Debenture or coupon from
taking or instituting any suit, action or proceeding for the
purpose of realizing the security or for the execution of any
trust or power hereunder or for the appointment of a
liquidator, receiver, receiver and manager, or trustee in
bankruptcy or to have the Bank wound up or for any other
remedy hereunder and to direct such holder of any Debenture or
coupon to waive any default or defaults by the Bank on which
any suit or proceeding is founded;
(i) Power, subject to the provisions of Section 11.04 hereof, to
direct any debentureholder or debentureholders bringing any
action, suit or proceeding and the Trustee to waive the
default in respect of which such action, suit or other
proceeding shall have been brought;
(j) Power to assent to any modification of or change in or
addition to or omission from the provisions contained in this
trust indenture which shall be agreed to by the Bank and to
authorize the Trustee to concur in and execute any indenture
supplemental to this trust indenture, and embodying any such
modification, change, addition or omission or any other deeds,
documents or writings authorized by such extraordinary
resolution;
(k) Power to appoint a committee with power and authority (subject
to such limitations, if any, as may be prescribed in the
resolution) to exercise, and to
- 42 -
direct the Trustee to exercise, on behalf of the
debentureholders, such of the powers of the debentureholders
as are exercisable by extraordinary or other resolution as
shall be included in the resolution appointing the committee.
The foregoing powers shall be deemed to be several and
cumulative and not dependent on each other and the exercise of any one or more
of such powers, or any combination of such powers, from time to time, shall not
be deemed to exhaust the rights of the debentureholders to exercise such power
or powers, or combinations of powers, thereafter from time to time.
SECTION 15.03 EXTRAORDINARY RESOLUTION DEFINED
An extraordinary resolution, adopted in accordance with the
provisions hereof, shall be binding upon all the debentureholders and upon each
and every debentureholder and his respective heirs, executors, administrators,
successors and assigns, whether present or absent, and the Trustee (subject to
the provisions for its indemnity herein contained) shall be bound to give effect
thereto accordingly. The term "extraordinary resolution" when used herein, means
(subject to the provisions of Section 15.06 hereof) a resolution adopted at a
meeting of the holders of the Debentures then outstanding, duly convened and
held in accordance with the provisions herein contained, upon a poll by the
affirmative vote of not less than 66-2/3% of the votes given upon such poll. At
a serial meeting such resolution must in addition receive the affirmative vote
upon a poll of not less than 66-2/3% of the votes given by the holders of each
series of Debentures or part thereof especially affected thereby.
Save as herein expressly otherwise provided, no action shall
be taken at a meeting of the debentureholders which changes any provision of
this trust indenture or changes or prejudices the exercise of any right of any
debentureholder except by extraordinary resolution as hereinbefore provided or
by resolution or written instrument as provided by Section 15.06 hereof.
SECTION 15.04 DECLARATION BY CHAIRMAN OF RESULT OF VOTE
At any meeting of the debentureholders, in cases where no poll
is required or requested, a declaration made by the Chairman that a resolution
has been carried, or carried by any particular majority, or lost, shall be
conclusive evidence thereof.
SECTION 15.05 MINUTES
Minutes of all resolutions and proceedings at every such
meeting, as aforesaid, shall be made and duly entered in books to be provided
from time to time 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 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
or proceedings had thereat to have been duly passed and had.
- 43 -
SECTION 15.06 EXTRAORDINARY RESOLUTION BY SIGNED INSTRUMENT
Notwithstanding the foregoing provisions of this trust
indenture, any resolution or instrument signed in one or more counterparts by
the holders of not less than 66-2/3% of the aggregate principal amount of the
Debentures then outstanding shall have the same force and effect as an
extraordinary resolution duly passed by the debentureholders under the
provisions of this Article XV with respect to extraordinary resolutions;
provided that, where the matters contained in such resolution or instrument
would, if contained in an extraordinary resolution adopted at a meeting, require
such meeting to be considered as a serial meeting, such resolution or instrument
shall also be signed by the holders of not less than 66-2/3% of the aggregate
principal amount of the outstanding Debentures of each series or part thereof
especially affected thereby as aforesaid.
SECTION 15.07 COMMITTEE FOR DEBENTUREHOLDERS
A resolution making any appointment of a committee pursuant to
the provisions of subsection (k) of Section 15.02 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 resolution
appointing it and the members need not be themselves debentureholders. Every
such committee may elect its chairman and may make regulations respecting its
quorum, the calling of its meetings, the filling of vacancies occurring in its
number and its procedure generally. 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 the number of members thereof necessary to constitute a
quorum. All acts of any such committee within the authority delegated to it
shall be binding upon all debentureholders. Neither the 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 by them in good faith.
ARTICLE XVI
ADMINISTRATION OF THE TRUSTS AND
PROTECTION OF THE TRUSTEE
SECTION 16.01
By way of supplement to the provisions of any statute of any
of the provinces of Canada for the time being relating to trustees and in
addition to any other provision of this trust indenture for the relief of the
Trustee, it is expressly declared as follows, that is to say:
(a) ADVICE OF EXPERTS. The Trustee may in relation to this trust
indenture act on the opinion or advice of or information
obtained from any counsel, auditor, valuer, or other expert,
whether obtained by the Trustee or by the Bank or otherwise,
but shall not be bound to act upon such opinion or advice and
shall not be responsible for any loss occasioned by so acting
or not acting, as the case may be, and may employ such
assistance as may be necessary to the proper discharge of its
duties and may pay proper and reasonable compensation for all
such legal and other advice or assistance as aforesaid. Any
such advice or opinion or information may be sent or obtained
by letter, cable, telegraph, radio or other means of
electronic
- 44 -
communication, and the Trustee shall not be liable for acting
on any advice, opinion or information, purporting to be
conveyed by any such means, although the same shall contain
some error or shall not be authentic.
(b) RELY ON OFFICERS' CERTIFICATES. Except where some other mode
of proof is required or permitted by this trust indenture, the
Trustee shall be at liberty to accept an Officers' Certificate
as to any statements of facts, as conclusive evidence of the
truth of such statements and the Trustee shall be in no wise
bound to call for further evidence or be responsible for any
loss that may be occasioned by its failing to do so.
(c) ACCOUNTABLE FOR REASONABLE DILIGENCE. The Trustee shall only
be accountable for reasonable diligence in the management of
the trusts hereof and shall only be liable for its own wilful
acts and defaults. The Trustee shall not be liable for any act
or default on the part of any agent or co-trustee, or for
having permitted any agent or co-trustee to receive and retain
any moneys payable to the Trustee hereunder.
(d) EMPLOY AGENTS. The Trustee may employ such agents and other
assistants as it may reasonably require for the proper
discharge of its duties hereunder and shall not be responsible
for any misconduct on the part of any such agents or other
assistants, and may pay reasonable remuneration for all
services performed for it in the discharge of the trusts
hereof without taxation or any costs or fees of any counsel,
solicitor or attorney and shall be entitled to receive
reasonable remuneration for all services performed by it in
the discharge of the trusts hereof and compensation for all
disbursements, costs, liabilities and expenses made or
incurred by it in the discharge of its duties hereunder and in
the management of the trusts hereof and all such remuneration,
disbursements, costs, liabilities and expenses, and all
remuneration and expenses incident to the preparation,
execution and recording of this trust indenture or of any
instrument ancillary or supplemental hereto and the
preparation, execution and issue of the Debentures whether
done or incurred at the request of the Trustee or the Bank
shall bear interest at the rate of 5% per annum from the date
of the same being incurred, expended or becoming due and shall
be payable on demand.
(e) PAYMENT OF COSTS. Wherever by this trust indenture the Trustee
is authorized to employ or consult counsel, solicitors or
attorneys and to pay costs, such costs need not be taxed
unless the Trustee shall deem it necessary to tax the same,
but may be fixed by the Trustee and paid as a lump sum. No
costs paid by the Trustee under the provisions of this Section
in good faith shall be disallowed in the taking of any
accounts by reason only of the fact that such costs are
greater than they might have been if taxed, or by reason of
their not being taxed, but such costs paid by the Trustee
shall, if not improperly incurred by it, be allowed and paid
to the Trustee in priority to the Debentures. Without limiting
the foregoing provisions, any and all costs taxed against the
Bank may be taxed as between solicitor and client and not
party and party, and shall be payable by the Bank accordingly.
Any
- 45 -
counsel, solicitors or attorneys employed or consulted by the
Trustee may, but need not be, counsel, solicitors or attorneys
for the Bank.
(f) DISCRETION AS TO THE EXERCISE OF POWERS. The Trustee except as
herein otherwise provided shall, as regards all the trusts,
powers, authorities and discretions vested in it, have
absolute and uncontrolled discretion as to the exercise
thereof, whether in relation to the manner or as to the mode
of and time for the exercise thereof, and, in the absence of
fraud, it shall in no wise be responsible for any loss, costs,
damages or inconveniences that may result from the exercise or
non-exercise thereof.
(g) TRUSTEE MAY DEAL IN DEBENTURES. The Trustee may buy, sell,
lend upon and deal in the Debentures, either with the Bank
or otherwise, and generally contract and enter into
financial transactions with the Bank or otherwise, without
being liable to account for any profits made thereby.
(h) MAY DELEGATE POWERS. The Trustee may delegate to any bank or
person the performance of any of the trusts and powers vested
in it by this trust indenture, and any such delegation may be
made upon such terms and conditions and subject to such
regulations, not including, however, any power to
sub-delegate, as the Trustee may think to be in the interests
of the debentureholders.
(i) TRUSTEE NOT BOUND TO ACT ON BANK'S REQUEST. The Trustee shall
not be bound to act as hereinbefore provided in accordance
with any direction or request of the Bank or of the directors
until a duly authenticated copy of the instrument or
resolution containing such direction or request shall have
been delivered to the Trustee, and the Trustee shall be fully
empowered to act and shall be fully protected from all
liability in acting upon any instruments purporting to be
proper certificates or copies of resolutions of the directors
or shareholders and believed by the Trustee to be genuine.
(j) TRUSTEE NOT RESPONSIBLE FOR VALIDITY OF TRANSFERS. Upon
presentation by the Bank to the Trustee for transfer of any
Debenture, the Trustee shall not be responsible for the
validity of any such transfer or for compliance by the
transferor with requirements prescribed by the Bank and/or any
other transfer agent and upon presentation by the Bank of a
cancelled Debenture with instructions as to the name of the
transferee or transferees the Trustee may certify a new
Debenture or Debentures in the same aggregate principal amount
in the name of such transferee or transferees.
(k) TRUSTEE NOT RESPONSIBLE FOR VALIDITY OF ACTIONS OF OFFICERS.
The regularity and validity of all acts, consents, requests
and directions of the directors or of any officer of the Bank
shall be deemed for the protection of the Trustee to be
conclusively proven by a certificate signed by any person
being, or by the Trustee believed to be, the Secretary or the
Chief Accountant or an Assistant Secretary or an Assistant
Chief Accountant of, or the solicitor for, the Bank. The
Trustee shall not be responsible for any error made, or act
done by it, resulting from reliance
- 46 -
upon the Bank's seal or upon the identity, official position
or signature of any officer or director of the Bank, or of any
person on whose signature the Trustee may be called upon to
act or refrain from acting under this trust indenture.
SECTION 16.02 DOCUMENTS, CERTIFICATES, OPINIONS
Whenever it is required in this trust indenture that any
certificate or opinion be signed by an accountant, counsel or other person
acceptable to the Trustee, the acceptance by the Trustee of the certificate or
opinion signed by such person shall be sufficient evidence that the signer is
acceptable to the Trustee.
Any certificate or opinion of an officer of the Bank or an
accountant or other expert may be based, in so far as it relates to legal
matters, upon a certificate or opinion of or upon representations by Counsel,
unless such officer, accountant or other expert knows that the certificate or
opinion or representation with respect to the matters upon which his certificate
or opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should have known that the same were erroneous.
Any certificate or opinion of Counsel may be based, in so far
as it relates to factual matters, information with respect to which is in
possession of the Bank, upon the certificate or opinion of or representations by
an officer or officers of the Bank, unless such Counsel knows that the
certificate or opinion or representations with respect to the matters upon which
his certificate or opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should have known that the same were erroneous.
Counsel in giving any opinion hereunder may rely in whole or
in part upon the opinion of other counsel provided that Counsel shall consider
such other counsel as one upon whom he may properly rely.
ARTICLE XVII
EVIDENCE OF RIGHTS OF DEBENTUREHOLDERS
SECTION 17.01
Any request, direction, notice, consent or other instrument
which this trust indenture may require or permit to be signed or executed by the
debentureholders may be in any number of concurrent instruments of similar tenor
and may be signed or executed by such debentureholders in person or by attorney
duly appointed in writing. Proof of the execution of any such request or other
instrument or of a writing appointing any such attorney or (subject to the
provisions of paragraph (1) of Section 15.01 hereof with regard to voting at
meetings of debentureholders) of the holding by any person of Debentures or
coupons shall be sufficient for any purpose of this trust indenture if made in
the following manner:
(a) The fact and date of the execution by any person of such
request or other instrument or writing may be proved by the
certificate of any notary public, or other officer authorized
to take acknowledgments of deeds to be recorded at the place
where such certificate is made, that the person signing such
request or other
- 47 -
instrument or writing acknowledged to him the execution
thereof or by an affidavit of a witness of such execution or
in any other manner which the Trustee may consider adequate.
(b) The fact of the holding by any person executing such request
or other instrument of Debentures transferable by delivery and
the amounts, designations and numbers thereof and the date of
his holding the same may be proved by deposit of such
Debentures with the Trustee or by a certificate executed by
any bank, banker, trust company or other depositary
satisfactory to the Trustee, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory,
certifying that on the date therein mentioned such person had
on deposit with such depositary the Debentures designated in
such certificate and that such Debentures will remain so
deposited until the surrender or cancellation of the
certificate. The Trustee may, nevertheless, in its discretion,
require further proof in cases where it deems further proof
desirable or may accept such other proof as it shall consider
proper. The ownership of registered Debentures shall be proved
by the registers hereinbefore mentioned. The Trustee shall not
be bound to recognize any person as a holder of a Debenture
transferable by delivery unless and until his title thereto is
proved as hereinbefore provided in this Section or in such
other manner as the Trustee may consider sufficient.
ARTICLE XVIII
SUPPLEMENTAL INDENTURES
SECTION 18.01
From time to time the Bank and the Trustee may, when
authorized by a resolution of the directors of the Bank, and, subject to the
provisions of this indenture, they shall, when so directed by this indenture,
execute, acknowledge and deliver by their proper officers deeds or indentures
supplemental hereto, which thereafter shall form part hereof, for any one or
more of the following purposes:
(a) adding to the limitations or restrictions herein specified
further limitations or restrictions, thereafter to be
observed, upon the amount, dates of maturity, issue or the
purposes of the issue of Debentures hereunder, provided that
the Trustee shall be of opinion that such further limitations
or restrictions shall not be prejudicial to the interests of
the debentureholders;
(b) adding to the covenants of the Bank herein contained for the
protection of the holders of the Debentures and/or providing
for events of default in addition to those herein specified;
(c) making such provisions not inconsistent with this indenture as
may be necessary or desirable with respect to matters or
questions arising hereunder, including the making of any
modifications in the form of the Debentures or coupons which
do not affect the substance thereof and which, in the opinion
of the Trustee, it may be expedient to make, provided that the
Trustee shall be of opinion that such
- 48 -
provisions and modifications will not be prejudicial to the
interests of the debentureholders;
(d) providing for the issue of Debentures of any one or more
series other than or in addition to the Debentures of the 1987
Series;
(e) evidencing the succession, or successive successions of other
corporations to the Bank and the covenants of and obligations
assumed by any such successor in accordance with the
provisions of this indenture;
(f) for any other purpose not inconsistent with the terms of this
indenture.
The Trustee may also without the consent or concurrence of the debentureholders
by supplemental indenture or otherwise concur with the Bank in making any
changes or corrections in this indenture as to which it shall have been advised
by Counsel that the same are verbal corrections or changes or are required for
the purpose of curing or correcting any ambiguity or defective or inconsistent
provisions or clerical omission or mistake or manifest error contained herein.
ARTICLE XIX
ACCEPTANCE OF TRUSTS BY TRUSTEE
SECTION 19.01
The Trustee hereby accepts the trusts in this trust indenture
declared and provided and agrees to perform the same upon the terms and
conditions hereinbefore set forth.
ARTICLE XX
COUNTERPARTS
SECTION 20.01
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 the one and the same instrument and
notwithstanding their date of execution shall be deemed to bear date as of the
2nd day of May, 1967.
- 49 -
IN WITNESS WHEREOF the parties hereto have executed this
indenture under their respective corporate seals and the hands of their proper
officers duly authorized in that behalf.
THE TORONTO-DOMINION BANK
By:_____________________________________________
WITNESS: (Signed) X.X. Xxxxxxx
Deputy Chief General Manager
(Signed) X.X. Xxxxxxx _____________________________________________
(Signed) X.X. Xxxxx
Secretary
CANADA PERMANENT TRUST COMPANY
By:_____________________________________________
WITNESS: (Signed) X.X. Xxxxxxxx
Deputy General Manager
(Signed) J.R. Young _____________________________________________
(Signed) X.X. Xxxxxx
Secretary
- 50 -
THE FIRST SCHEDULE
Referred to in the within trust indenture made as of May 2,
1967 between The Toronto-Dominion Bank and Canada Permanent
Trust Company, as Trustee.
FORM OF COUPON BEARER 1987 DEBENTURE
THIS IS NOT AN INSURED DEPOSIT AS DEFINED BY THE
CANADA DEPOSIT INSURANCE CORPORATION
No. $
-----------------
THE TORONTO-DOMINION BANK
Chartered under the Bank Act of Canada
6% DEBENTURE
Due May 2, 1987
FOR VALUE RECEIVED, THE TORONTO-DOMINION BANK (hereinafter called
the "Bank") acknowledges itself indebted and hereby promises to pay to the
bearer hereof on May 2, 1987 or on such earlier date as the principal amount
hereof may become due in accordance with the provisions of the Trust
Indenture hereinafter mentioned, on presentation and surrender of this
Debenture, the sum of DOLLARS ($ ) in lawful money of Canada at any
branch in Canada of The Toronto-Dominion Bank at the option of the holder,
together with such further sum, if any, as may be payable by way of premium,
and to pay interest on the principal amount hereof from May 2, 1967 at the
rate of 6% per annum payable half-yearly in like money at any one of the said
branches of the Bank, at the option of the holder, on May 2 and November 2 in
each year upon presentation and surrender of the respective interest coupons
hereto annexed as they severally become due; and should the Bank at any time
make default in the payment of any principal, premium or interest, to pay
interest on the amount in default at the same rate, in like money, at any of
the said places, at the option of the holder, and half-yearly on the same
dates. Interest so payable on overdue interest shall be paid to the holder of
the coupon representing such overdue interest or, if there be no coupon
representing the same, to the holder of this Debenture.
This Debenture is one of a series, designated 6% Debentures due May 2,
1987 (herein called the "1987 Debentures") of the Debentures issued and to be
issued under a Trust Indenture (herein called the "Trust Indenture") made as of
May 2, 1967 between the Bank and Canada Permanent Trust Company, as Trustee.
Reference is hereby made to the Trust Indenture and all instruments supplemental
thereto or in implement thereof for the terms and conditions upon which the
Debentures are issued or may be issued, and held, the nature and extent of the
rights of the holders of Debentures issued and to be issued thereunder and of
the Bank and of the Trustee, all to the same effect as if the provisions of the
Trust Indenture and all instruments supplemental
- 51 -
thereto were herein set forth, to all of which provisions the holder of this
Debenture by acceptance hereof assents.
The aggregate principal amount of Debentures which maybe issued under
the Trust Indenture is unlimited. Debentures to the aggregate principal amount
of $12,500,000 in lawful money of Canada have been authorized for immediate
issue as 6% Debentures due May 2, 1987, of which this is one, and additional
Debentures may be issued from time to time in accordance with the terms and
conditions set forth in the Trust Indenture.
This Debenture may be exchanged for an equal aggregate principal amount
of 1987 Debentures in coupon bearer or fully registered form in any authorized
denomination or denominations subject to the conditions and upon payment of the
charges prescribed in the Trust Indenture.
The payment of the principal of and the premium, if any, and interest
on this Debenture is expressly subordinated as provided in the Trust Indenture
to the prior payment in full of the deposit liabilities of the Bank and of all
other Senior Indebtedness (as defined in the Trust Indenture) of the Bank,
whether now outstanding or hereafter incurred, and by the acceptance of this
Debenture the holder hereof agrees expressly, for the benefit of present and
future holders of deposit liabilities and of other Senior Indebtedness, to be
bound by the provisions of the Trust Indenture.
This Debenture is a direct obligation of the Bank but it is not secured
by any mortgage, pledge or charge.
This Debenture may be redeemed by the Bank, at its option, at any time
after May 2, 1972 and before maturity, on not less than 30 days prior notice, on
the terms and conditions set forth in the Trust Indenture, at (if redeemed
otherwise than for sinking fund purposes) the principal amount hereof plus a
premium of 4.875% of such principal amount if redeemed before May 2, 1973, such
premium thereafter decreasing by .375 of 1% of such principal amount for each 12
month period commenced or elapsed on or after May 2, 1973 to the date specified
for redemption, up to May 1, 1985, after which there will be no premium,
together in each case with accrued interest to the date fixed for redemption,
provided that the Bank is not entitled, under the terms of the Trust Indenture,
to redeem 1987 Debentures (otherwise than for sinking fund purposes) in whole or
in part prior to May 2, 1979, as part of or in anticipation of any refunding
operation involving an issue of bank debentures (as defined in the Trust
Indenture) which have an interest rate or cost to the Bank of less than 6% per
annum. If this Debenture is called for redemption and payment hereof duly
provided for, interest shall cease to accrue hereon from the date specified for
redemption as provided in the Trust Indenture. The right is also reserved to the
Bank subject to the terms and conditions set forth in the Trust Indenture to
purchase any of the 1987 Debentures in the market or by private contract.
This Debenture is also entitled to the benefits of and is subject to
redemption through the operation of the sinking fund provided for by the Trust
Indenture for the 1987 Debentures. If this Debenture is called for redemption
through the operation of such sinking fund, it shall be redeemable at the
principal amount hereof together with interest on such principal amount accrued
and unpaid to the date specified for redemption.
- 52 -
The principal of this Debenture may also become or be declared due
before regular maturity on the conditions, in the manner, with the effect and at
the time set forth in the Trust Indenture.
The Trust Indenture contains provisions for holding meetings of
debentureholders and for making binding upon all debentureholders extraordinary
resolutions passed at such meetings in accordance with such provisions and
resolutions or instruments in writing signed by the holders of a specified
majority of the Debentures outstanding.
This Debenture shall pass by delivery.
This Debenture shall not become obligatory for any purpose until
certified by the Trustee for the time being under the Trust Indenture.
IN WITNESS WHEREOF THE TORONTO-DOMINION BANK has caused its corporate
seal to be hereunto affixed and this Debenture to be signed by its President and
its Secretary as of May 2, 1967.
THE TORONTO-DOMINION BANK
By:
-----------------------
President
-----------------------
Secretary
TRUSTEE'S CERTIFICATE
This Debenture is one of the 6% Debentures due May 2, 1987 referred to
in the Trust Indenture within mentioned.
Date of certification:
CANADA PERMANENT TRUST COMPANY,
Trustee
By:
-----------------------
Authorized Officer
- 53 -
FORM OF INTEREST COUPON
$ Coupon No._____
THE TORONTO-DOMINION BANK will pay to the bearer on the 2nd day of ,
19 the sum of $ in lawful money of Canada at any branch of The
Toronto-Dominion Bank in Canada, at the holder's option, being one-half
year's interest on its 6% Debenture due May 2, 1987 No. unless said
Debenture shall have been previously called for redemption and payment
thereof duly provided for.
---------------------------
Chief Accountant
- 54 -
FORM OF FULLY REGISTERED 1987 DEBENTURE
THIS IS NOT AN INSURED DEPOSIT AS DEFINED BY THE
CANADA DEPOSIT INSURANCE CORPORATION
No._________ $
THE TORONTO-DOMINION BANK
Chartered under the Bank Act of Canada
6% DEBENTURE
Due May 2, 1987
FOR VALUE RECEIVED, THE TORONTO-DOMINION BANK (hereinafter called
the "Bank") acknowledges itself indebted and hereby promises to pay
to on May 2, 1987 or on such earlier date as the principal amount hereof
may become due in accordance with the provisions of the Trust Indenture
hereinafter mentioned, on presentation and surrender of this Debenture, the
sum of DOLLARS ($ ) in lawful money of Canada at any branch in Canada
of The Toronto-Dominion Bank at the option of the holder, together with such
further sum, if any, as may be payable by way of premium, and to pay interest
on the principal amount hereof from May 2, 1967 or from the last interest
payment date on which interest has been paid or made available for payment on
the outstanding 1987 Debentures, whichever is later, at the rate of 6% per
annum payable half-yearly in like money at any one of the said branches of
the Bank, at the option of the holder, on May 2 and November 2 in each year,
and should the Bank at any time make default in the payment of any principal,
premium or interest, to pay interest on the amount in default at the same
rate, in like money, at any of the said places, at the option of the holder,
and half-yearly on the same dates.
As the interest on this Debenture matures (except interest payable at
maturity or on redemption, which shall be paid upon presentation and surrender
of this Debenture) the Bank, at least three days prior to each date on which
interest on this Debenture becomes due, shall forward or cause to be forwarded
by prepaid post, to the holder for the time being, or, in the case of joint
holders, to one of such joint holders, at his registered address, a warrant or
cheque for such interest (less any tax required to be deducted) payable to the
order of such holder or holders and negotiable at par at each of the places at
which interest upon this Debenture is payable. The forwarding of such warrant or
cheque, as the case may be, shall satisfy and discharge the liability for
interest upon this Debenture to the extent of the sums represented thereby (plus
the amount of any tax deducted as aforesaid) unless such warrant or cheque be
not paid on presentation, provided that in the event of the non-receipt, loss or
destruction of such warrant or cheque and upon being furnished with reasonable
evidence of such non-receipt, loss or destruction and indemnity reasonably
satisfactory to it, the Bank shall issue to such person a replacement warrant or
cheque for the amount of such warrant or cheque.
- 55 -
This Debenture is one of a series, designated 6% Debentures due May 2,
1987 (herein called the "1987 Debentures"), of the Debentures issued and to be
issued under a Trust Indenture (herein called the "Trust Indenture") made as of
May 2, 1967 between the Bank and Canada Permanent Trust Company, as Trustee.
Reference is hereby made to the Trust Indenture and all instruments supplemental
thereto or in implement thereof for the terms and conditions upon which the
Debentures are issued or may be issued, and held, the nature and extent of the
rights of the holders of Debentures issued and to be issued thereunder and of
the Bank and of the Trustee, all to the same effect as if the provisions of the
Trust Indenture and all instruments supplemental thereto were herein set forth,
to all of which provisions the holder of this Debenture by acceptance hereof
assents.
The aggregate principal amount of Debentures which may be issued under
the Trust Indenture is unlimited. Debentures to the aggregate principal amount
of $12,500,000 in lawful money of Canada have been authorized for immediate
issue as 6% Debentures due May 2, 1987, of which this is one, and additional
Debentures may be issued from time to time in accordance with the terms and
conditions set forth in the Trust Indenture.
This Debenture may be exchanged for an equal aggregate principal amount
of 1987 Debentures in coupon bearer or fully registered form in any authorized
denomination or denominations subject to the conditions and upon payment of the
charges prescribed in the Trust Indenture.
The payment of the principal of and premium, if any, and interest on
this Debenture is expressly subordinated as provided in the Trust Indenture to
the prior payment in full of the deposit liabilities of the Bank and of all
other Senior Indebtedness (as defined in the Trust Indenture) of the Bank
whether now outstanding or hereafter incurred, and by the acceptance of this
Debenture the holder hereof agrees expressly, for the benefit of present and
future holders of deposit liabilities and of other Senior Indebtedness, to be
bound by the provisions of the Trust Indenture.
This Debenture is a direct obligation of the Bank but it is not secured
by any mortgage, pledge or charge.
This Debenture may be redeemed by the Bank, at its option, at any time
after May 2, 1972 and before maturity, on not less than 30 days prior notice, on
the terms and conditions set forth in the Trust Indenture, as (if redeemed
otherwise than for sinking fund purposes) the principal amount hereof plus a
premium of 4.875% of such principal amount if redeemed before May 2, 1973, such
premium thereafter decreasing by .375 of 1% of such principal amount for each 12
month period commenced or elapsed on or after May 2, 1973 to the date specified
for redemption, up to May 1, 1985, after which there will be no premium,
together in each case with accrued interest to the date fixed for redemption,
provided that the Bank is not entitled, under the terms of the Trust Indenture,
to redeem 1987 Debentures (otherwise than for sinking fund purposes) in whole or
in part prior to May 2, 1979, as part of or in anticipation of any refunding
operation involving an issue of bank debentures (as defined in the Trust
Indenture) which have an interest rate or cost to the Bank of less than 6% per
annum. If this Debenture is called for redemption and payment hereof duly
provided for, interest shall cease to accrue hereon from the date specified for
redemption as provided in the Trust Indenture. The right is also reserved to the
- 56 -
Bank subject to the terms and conditions set forth in the Trust Indenture to
purchase any of the 1987 Debentures in the market or by private contract. This
Debenture is also entitled to the benefits of and is subject to redemption
through the operation of the sinking fund provided for by the Trust Indenture
for the 1987 Debentures. If this Debenture is called for redemption through the
operation of such sinking fund, it shall be redeemable at the principal amount
hereof together with interest on such principal amount accrued and unpaid to the
date specified for redemption.
The principal of this Debenture may also become or be declared due
before regular maturity on the conditions, in the manner, with the effect and at
the time set forth in the Trust Indenture.
The Trust Indenture contains provisions for holding meetings of
debentureholders and for making binding upon all debentureholders extraordinary
resolutions passed at such meetings in accordance with such provisions and
resolutions or instruments in writing signed by the holders of a specified
majority of the Debentures outstanding.
No transfer of this Debenture shall be valid unless this Debenture
shall have been surrendered at one of the transfer offices to be kept at the
head office of the Bank in Toronto and at the principal office of the Bank in
Montreal, Winnipeg, Edmonton and Vancouver, Canada, and at such other place or
places, if any, as the Bank with the approval of the Trustee may designate, with
the form of transfer endorsed on the reverse hereof duly executed by the
registered holder or his executors or administrators or other legal
representatives or his or their attorney duly appointed by instrument in writing
in form and execution satisfactory to the Bank, or accompanied by a written
instrument or instruments in form satisfactory to the Bank and duly executed as
aforesaid, upon compliance with such reasonable requirements as the Bank may
prescribe. Upon such surrender, the Bank shall execute and the Trustee shall
certify and the Bank shall deliver in the name of the transferee or transferees
a new Debenture for the same aggregate principal amount. The person in whose
name this Debenture shall be registered shall be deemed the owner hereof for all
purposes of the Trust Indenture and payment of or on account of the principal of
and premium, if any, and interest hereon shall be made only to or upon the order
in writing of such registered holder.
This Debenture shall not become obligatory for any purpose until
certified by the Trustee for the time being under the Trust Indenture.
- 57 -
IN WITNESS WHEREOF THE TORONTO-DOMINION BANK has caused its corporate
seal to be hereunto affixed and this Debenture to be signed by its President and
its Secretary as of May 2, 1967.
THE TORONTO-DOMINION BANK
By:
----------------------
President
----------------------
Secretary
- 58 -
TRUSTEE'S CERTIFICATE
This Debenture is one of the 6% Debentures due May 2, 1987 referred to
in the Trust Indenture within mentioned.
Date of certification:
CANADA PERMANENT TRUST COMPANY,
Trustee
By:
--------------------------
Authorized Officer
THE TORONTO-DOMINION BANK
Form of Transfer of Debentures
The undersigned
----------------------------------------------------------------
hereby sells, assigns and transfers unto of*
------------------------- ---------
--------------------------------------------------------------------------------
the within 6% Debenture due May 2, 1987 and hereby irrevocably authorizes and
directs The Toronto-Dominion Bank to transfer and set over the said Debenture on
the registers of the said 6% Debentures due May 2, 1987 to the above-named
transferee.
Dated at the day of , 19 .
-------- ---- ------------------
Witness:
------------------------------------------- ---------------------------
***Signature of Transferor is guaranteed by **Signature of Transferor
------------------
* The exact post office address.
** The signature must correspond with the name of the registered owner as
shown on the Debenture in every particular, without alteration or
enlargement.
*** The signature of transferor must be guaranteed by a Canadian chartered
bank or other financial institution acceptable to The Toronto-Dominion
Bank.
- 59 -
CANADA )
)
PROVINCE OF ONTARIO )
TO WIT: )
I, Xxxxxx Xxxxxxx Xxxxxxx, of the City of Toronto in the Province of Ontario,
One of Her Majesty's Counsel, make oath and say:
1. THAT I am an officer holding the office of Assistant General Manager
and General Counsel of The Toronto-Dominion Bank, the Party of the
First Part named in the annexed Trust Indenture made by The
Toronto-Dominion Bank to Canada Permanent Trust Company and am aware of
the circumstances connected with the transaction and have a personal
knowledge of the facts herein deposed to.
2. THAT I was personally present and did see the within Trust Indenture
signed, sealed and executed by The Toronto-Dominion Bank under its
corporate seal and under the hands of Xxxxxxx Xxxxxx Thomson and Xxxx
Xxxxxxx Xxxxx, its authorized officers.
3. THAT I know personally the said Xxxxxxx Xxxxxx Thomson and Xxxx Xxxxxxx
Xxxxx and know them to be a Deputy Chief General Manager and the
Secretary, respectively, of The Toronto-Dominion Bank and the
signatures "X. X. Xxxxxxx" and "X. X. Xxxxx" subscribed to the said
Trust Indenture at the foot or end thereof were subscribed thereto by
them respectively in my presence and are in the true and proper
handwriting of the said Xxxxxxx Xxxxxx Thomson and Xxxx Xxxxxxx Xxxxx.
4. THAT the signature "X. X. Xxxxxxx" set and subscribed as a witness to
the execution of the said instrument by The Toronto-Dominion Bank is of
the proper handwriting of me, this deponent.
5. THAT the said instrument was executed by The Toronto-Dominion Bank at
the City of Toronto, in the Province of Ontario, on the 1st day of May,
1967.
SWORN before me at the City of Toronto, in )
the County of York, in the Province of )
Ontario, this 1st day of May, 1967. )
)
) ---------------------------
) (Signed) Xxxxxx X. Xxxxxxx
(Signed) Xxxx X. X. Xxxxxx )
----------------------------------------- )
A Commissioner in and for the Province of )
Ontario )
- 60 -
CANADA )
)
PROVINCE OF ONTARIO )
TO WIT: )
I, Xxxx Xxxx Young, of the City of Toronto, in the Province of Ontario,
Solicitor, make oath and say:
1. THAT I am the corporate trust officer of Canada Permanent Trust
Company, the Party of the Second Part named in the annexed Trust
Indenture made by The Toronto-Dominion Bank to Canada Permanent Trust
Company and am aware of the circumstances connected with the
transaction and have a personal knowledge of the facts herein deposed
to.
2. THAT I was personally present and did see the within Trust Indenture
signed, sealed and executed by Canada Permanent Trust Company under its
corporate seal and under the hands of Xxxxxx Xxxxx Xxxxxxxx and Xxxxxx
Xxxxxxxxx Xxxxxx, its authorized officers.
3. THAT I know personally the said Xxxxxx Xxxxx Neelands and Xxxxxx
Xxxxxxxxx Xxxxxx and know them to be the duly authorized officers of
Canada Permanent Trust Company and the signatures "X. X. Xxxxxxxx" and
"X. X. Xxxxxx" subscribed to the said Trust Indenture at the foot or
end thereof were subscribed thereto by them respectively in my presence
and are in the true and proper handwriting of the said Xxxxxx Xxxxx
Neelands and Xxxxxx Xxxxxxxxx Xxxxxx.
4. THAT the signature "J. R. Young" set and subscribed as a witness to the
execution of the said instrument by Canada Permanent Trust Company is
of the proper handwriting of me, this deponent.
5. THAT the said instrument was executed by Canada Permanent Trust Company
at the City of Toronto, in the Province of Ontario, on the 1st day of
May, 1967.
6. THAT Canada Permanent Trust Company is a corporation duly licensed or
registered under The Loan and Trusts Corporation Act of the Province of
Ontario.
SWORN before me at the City of Toronto, in )
the County of York, in the Province of )
Ontario, this 1st day of May, 1967. )
)
) ---------------------------
) (Signed) J. R. Young
(Signed) X. X. Xxxxxxx )
----------------------------------------- )
A Commissioner in and for the Province of )
Ontario )
SUPPLEMENTAL TRUST INDENTURE
Between
THE
TORONTO DOMINION BANK
and
MONTREAL TRUST COMPANY OF CANADA
COMPAGNIE MONTREAL TRUST DU CANADA
and
THE CANADA TRUST COMPANY
LA SOCIETE CANADA TRUST
------------------------------------------------------------------------------
Providing for the resignation and replacement of the Trustee
------------------------------------------------------------------------------
Bearing formal date of January 9, 1989
THIS SUPPLEMENTAL TRUST INDENTURE executed at the City of Toronto in
the Province of Ontario this 9th day of January, 1989.
BY AND BETWEEN: THE
TORONTO DOMINION BANK (hereinafter
called the "Company"), a company duly
incorporated under the laws of Canada,
having its registered office in the
City of Toronto, in the Province of
Ontario.
PARTY OF THE FIRST PART
AND: MONTREAL TRUST COMPANY OF CANADA -
COMPAGNIE MONTREAL TRUST DU CANADA, a
company duly incorporated as a trust
company, having its head office in the
City of Montreal (hereinafter referred
to as "MTCC").
PARTY OF THE SECOND PART
AND: THE CANADA TRUST COMPANY - LA SOCIETE
CANADA TRUST, a company duly
incorporated under the laws of Canada,
having its head office in the City of
London, in the Province of Ontario
(hereinafter referred to as "CTC").
PARTY OF THE THIRD PART
WHEREAS by Trust Indenture (hereinafter referred to as the "Principal
Trust Indenture"), bearing formal date of May 2, 1967 and executed by the
Company in favour of CTC, (formerly CANADA PERMANENT TRUST COMPANY) as trustee,
provision was made for the issue by the Company from time to time under the
Principal Trust Indenture and under any Indentures which might thereafter be
executed in supplement thereof (which Principal Trust Indenture and any and all
Indenture supplemental thereto are herein sometimes collectively referred to as
the "Trust Indenture") of securities of the Company without limit as to
aggregate principal amount subject to the terms and conditions contained in the
Trust Indenture.
WHEREAS by agreement between MTCC and CTC and subject to acceptance by
the Company and CTC jointly, CTC has agreed to transfer to MTCC the appointment
as trustee under the Trust Indenture.
WHEREAS to give effect to the foregoing CTC desires, in accordance
with the provisions of Section 12.01 of the Principal Trust Indenture, to resign
as Trustee under the Trust Indenture and to be discharged from the trusts
thereof and the Company and CTC are prepared to accept such resignation and
appoint MTCC as the successor Trustee and MTCC is willing to accept such
appointment and represents that it has the qualifications for a new Trustee
required by Section 12.01 of the Principal Trust Indenture; and
- 2-
WHEREAS the parties wish to execute this Supplemental Trust Indenture
for the purpose of providing for the resignation of CTC as Trustee and for its
replacement by MTCC.
NOW, THEREFORE, these presents witness that the parties hereto have
agreed and do hereby agree together as follows:
SECTION 1
Resignation and Replacement of Trustee
1.1 Pursuant to Section 12.01 of the Principal Trust Indenture, CTC hereby
resigns as Trustee under the Trust Indenture and is hereby discharged from the
trusts of the Trust Indenture, such resignation to become effective January 9,
1989.
1.2 The Company and CTC hereby appoint MTCC as successor Trustee under the
Trust Indenture in the place and stead of CTC and with like effect as if
originally named as Trustee under the Trust Indenture, such appointment to
become effective January 9, 1989 and MTCC hereby accepts such appointment.
1.3 CTC hereby assigns and transfers to MTCC, upon the trusts expressed in the
Trust Indenture, all the rights, powers and trusts of CTC under the Trust
Indenture and hereby assigns, transfers and delivers all property and money held
by it thereunder to MTCC as successor Trustee and MTCC hereby accepts such
assignment, transfer and delivery, the whole to become effective January 9,
1989.
1.4 The parties hereto agree to sign, execute and deliver all such documents
and instruments and do such other acts as may be necessary or advisable to give
effect to the assignment, transfer and delivery referred to in Section 1.3
hereof.
SECTION 2
Declaration and Interpretative Provisions
2.1 This indenture is declared to be supplemental to the Principal Trust
Indenture and is to form part of and shall have the same effect as though
incorporated in the Principal Trust Indenture. The Principal Trust Indenture is
a part of these presents and is, by this reference, included herein with the
same effect as though at length set forth herein. In these presents, unless
there is something in the subject or context inconsistent therewith the
expressions herein used shall have the same meaning as corresponding expressions
used in the Trust Indenture and all the provisions of the Trust Indenture,
except only so far as may be inconsistent with the express provisions of these
presents, shall apply to and have effect in connection with this Indenture.
- 3 -
SECTION 3
Acceptance of Trust
3.1 MTCC as successor Trustee hereby accepts the trusts in the Trust Indenture
declared and provided and agrees to perform the same upon the terms and
conditions herein and in the Trust Indenture set forth.
SECTION 4
Formal Date
4.1 For the purpose of convenience, this Indenture may be referred to as
bearing formal date of January 9, 1989, irrespective of the actual date of the
execution hereof.
IN WITNESS WHEREOF the parties hereto have executed this Indenture.
Signed, Sealed and Delivered in the presence of:
(Seal) THE
TORONTO DOMINION BANK
Per: "X. Xxxxxxxx"
-----------------------------------------------------
X. Xxxxxxxx
(Seal) MONTREAL TRUST COMPANY OF CANADA -
COMPAGNIE MONTREAL TRUST DU CANADA
Per: "Authorized Signatory"
-----------------------------------------------------
"Authorized Signatory"
-----------------------------------------------------
(Seal) THE CANADA TRUST COMPANY - LA SOCIETE CANADA TRUST
Per: "Authorized Signatory"
-----------------------------------------------------
"Authorized Signatory"
-----------------------------------------------------
DATED AS OF JULY 19, 2001
THE TORONTO-DOMINION BANK
- and -
MONTREAL TRUST COMPANY OF CANADA
- and -
COMPUTERSHARE TRUST COMPANY OF CANADA
---------------------------------------------------------------------
TWENTY-SEVENTH SUPPLEMENTAL TRUST INDENTURE
---------------------------------------------------------------------
XxXXXXXX XXXXXXXX LLP
THIS TWENTY-SEVENTH SUPPLEMENTAL TRUST INDENTURE made as of the
19th day of July, 2001.
BETWEEN: THE TORONTO-DOMINION BANK, a Canadian
chartered bank (hereinafter referred to
as the "Bank").
PARTY OF THE FIRST PART
AND: MONTREAL TRUST COMPANY OF CANADA, a
trust company existing under the laws
of Canada (hereinafter referred to as
"Montreal Trust").
PARTY OF THE SECOND PART
AND: COMPUTERSHARE TRUST COMPANY OF CANADA,
a trust company existing under the laws
of Canada (hereinafter referred to as
"Computershare").
PARTY OF THE THIRD PART
WHEREAS by trust indenture (hereinafter referred to as the "Principal
Trust Indenture"), bearing formal date of May 2, 1967 and executed by the Bank
in favour of The Canada Trust Company, (formerly Canada Permanent Trust Company)
as trustee, provision was made for the issue by the Bank from time to time under
the Principal Trust Indenture and under any indentures which might thereafter be
executed in supplement thereof (which Principal Trust Indenture and any and all
indentures supplemental thereto are herein sometimes collectively referred to as
the "Trust Indenture") of subordinated indebtedness of the Bank without limit as
to aggregate principal amount subject to the terms and conditions contained in
the Trust Indenture;
AND WHEREAS pursuant to a supplemental trust indenture bearing formal
date of January 9, 1989 and executed by the Bank, Montreal Trust and The Canada
Trust Company, The Canada Trust Company resigned as trustee under the Trust
Indenture and Montreal Trust was appointed as successor trustee under the Trust
Indenture in the place and stead of The Canada Trust Company;
AND WHEREAS Computershare and Montreal Trust represent that
Computershare acquired the stock transfer and corporate trust businesses of
Montreal Trust pursuant to an Asset Purchase Agreement dated as of June 30,
2000, and pursuant thereto Montreal Trust has agreed to transfer to
Computershare the appointment as trustee under the Trust Indenture, subject to
the agreement of the Bank;
AND WHEREAS to give effect to the foregoing, Montreal Trust desires,
in accordance with Section 12.01 of the terms of the Principal Trust Indenture,
to resign as trustee thereunder and to be discharged from the trusts thereof,
and to transfer to Computershare all of its rights, powers and trusts under the
Trust Indenture;
- 2 -
AND WHEREAS the Bank is prepared to accept such resignation and to
appoint Computershare as the successor trustee, and Computershare is prepared to
accept such appointment;
AND WHEREAS the parties wish to execute this Supplemental Trust
Indenture for the purpose of providing for the resignation of Montreal Trust as
trustee and for its replacement by Computershare, such resignation and
replacement to take effect as of the formal date hereof (hereinafter, the
"Transfer Date");
NOW, THEREFORE, THIS TWENTY-SEVENTH SUPPLEMENTAL TRUST INDENTURE
WITNESSES THAT IN CONSIDERATION OF THE PREMISES AND OTHER GOOD AND VALUABLE
CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED BY
THE PARTIES HERETO, THE PARTIES COVENANT AND AGREE AS FOLLOWS:
SECTION 1
RESIGNATION AND REPLACEMENT OF TRUSTEE
1.1 Pursuant to Section 12.01 of the Principal Trust Indenture, Montreal Trust
hereby resigns as trustee under, and is hereby discharged from the trusts of,
the Trust Indenture, effective as of the Transfer Date.
1.2 The Bank hereby appoints Computershare as successor trustee under the Trust
Indenture in the place and stead of Montreal Trust and with like effect as if
originally named as trustee under the Trust Indenture, effective as of the
Transfer Date, and Computershare hereby accepts such appointment. The parties
hereby agree that Montreal Trust shall not be responsible for any liabilities
that may arise pursuant to Computershare's administration of the trusteeship
after the Transfer Date. For greater certainty, however, nothing in this
Supplemental Trust Indenture shall in any way release Montreal Trust from or
affect its liabilities, duties or obligations under the Trust Indenture arising
prior to the Transfer Date.
1.3 Montreal Trust hereby transfers and assigns to Computershare, upon the
trusts expressed in the Trust Indenture, all of its rights, powers and trusts as
trustee under the Trust Indenture, effective as of the Transfer Date.
1.4 Computershare hereby represents that it meets all of the qualifications
required for a new trustee under Section 12.01 of the Principal Trust Indenture.
1.5 Montreal Trust agrees to transfer and deliver to Computershare, and
Computershare agrees to accept, any and all records, documents, monies and other
property that may be held by Montreal Trust in connection with the Trust
Indenture. Such transfers, deliveries and acceptances shall be made as soon as
practicable upon, after, or in anticipation of, the Transfer Date as may be
agreed between such parties.
- 3 -
SECTION 2
ACCEPTANCE OF TRUST
2.1 Computershare as successor trustee hereby accepts the trusts in the Trust
Indenture declared and provided and agrees to perform the same upon the terms
and conditions herein and in the Trust Indenture set forth.
SECTION 3
MISCELLANEOUS
3.1 Notwithstanding any of the foregoing, the resignation, discharge,
appointment, transfers, assignments and other agreements provided for herein
will not be effective unless this Supplemental Trust Indenture has been executed
by all of the parties hereto, whether upon the original instrument, by facsimile
or in counterparts, or any combination thereof.
3.2 Any notice provision in the Trust Indenture specifying the address of the
trustee is hereby amended to record the trustee's address as:
Computershare Trust Company of Canada
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Manager, Corporate Trust
Facsimile: (000) 000-0000
3.3 Each party hereto agrees to execute and deliver all such documents and
instruments and do such other acts as may be necessary or advisable to give
effect to the terms hereof.
3.4 This Supplemental Trust Indenture is supplemental to the Trust Indenture
and shall be read in conjunction therewith. Except only insofar as the same may
be inconsistent with the express provisions of this Supplemental Trust
Indenture, all the provisions of the Trust Indenture shall apply to and shall
have effect in the same manner as if they and the provisions of this
Supplemental Trust Indenture were contained in one instrument.
3.5 This Supplemental Trust Indenture shall enure to the benefit of and be
binding upon the parties hereto and their successors and permitted assigns.
3.6 This Supplemental Trust Indenture shall be governed by the laws of the
Province of Ontario and the laws of Canada applicable therein.
- 4 -
SECTION 4
FORMAL DATE
4.1 For purposes of convenience, this Supplemental Trust Indenture may be
referred to as bearing formal date of July 19, 2001, irrespective of the actual
date of execution hereof.
IN WITNESS WHEREOF this Supplemental Trust Indenture has been duly
executed by the parties hereto.
THE TORONTO-DOMINION BANK
By: "Xxxxx X. Xxxx"
------------------------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President, Capital Finance
MONTREAL TRUST COMPANY OF CANADA
By: "Xxxxxx Xxxxxx"
------------------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Trust Officer
By: "Xxxxx Xxxxxxxxx"
------------------------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Trust Officer
COMPUTERSHARE TRUST COMPANY OF CANADA
By: "Xxxxxx Xxxxxx"
------------------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Trust Officer
By: "Xxxxx Xxxxxxxxx"
------------------------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Trust Officer
