Bank Of Montreal 6-K, filed May 27, 2021
Bank Of Montreal (BMO)
About this 6-K
Bank Of Montreal filed this 6-K on May 27, 2021.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________
FORM 6-K
____________
Report of Foreign Private Issuer
Pursuant to Rule 13a-16 or 15d-16
of the Securities Exchange Act of 1934
For the month of: May, 2021
Commission File Number: 001-13354
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BANK OF MONTREAL
(Name of Registrant)
____________
|
100
King Street West (Executive Offices) |
129 rue Saint-Jacques
Montreal, Quebec Canada, H2Y 1L6 (Head Office) |
____________
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F:
| Form 20-F ¨ | Form 40-F x |
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): ¨
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): ¨
INCORPORATION BY REFERENCE
The information contained in this Form 6-K and any exhibits hereto shall be deemed filed with the Securities and Exchange Commission (“SEC”) solely for purposes of incorporation by reference into and as part of the following registration statement of the registrant on file with and declared effective by the SEC:
| 1. | Registration Statement – Form F-3 – File No. 333-237342 |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| BANK OF MONTREAL | |||
| By: | /s/ Caroline Dufaux | ||
| Name: |
Caroline Dufaux |
||
| Title: | Authorized Signing Officer | ||
Date: May 27, 2021
EXHIBIT INDEX
| Exhibit | Description of Exhibit | |
| 4.7 | Form of Master Note representing certain issuances of the Notes. | |
| 5.3 | Opinion of Osler, Hoskin & Harcourt LLP, Canadian counsel for the Bank, as to certain matters under Canadian and Ontario law. | |
| 5.4 | Opinion of Morrison & Foerster LLP, as to the validity of the Notes under New York law. | |
| 5.5 |
Opinion of Mayer Brown LLP, as to the validity of the Notes under New York law. | |
| 8.3 | Opinion of Torys LLP, as to Canadian federal tax matters. | |
| 23.6 | Consent of Osler, Hoskin & Harcourt LLP (included in Exhibit 5.3 above). | |
| 23.7 | Consent of Morrison & Foerster LLP (included in Exhibit 5.4 above). | |
| 23.8 | Consent of Mayer Brown LLP (included in Exhibit 5.5 above). | |
| 23.9 | Consent of Torys LLP. | |
| 23.10 | Consent of Morrison & Foerster LLP, as to U.S. federal tax matters. | |
| 23.11 | Consent of Mayer Brown LLP, as to U.S. federal tax matters. | |
| 99.1 | Distribution Agreement, dated as of May 27, 2021, between Bank of Montreal and the Agents party thereto. | |
| 99.2 | Second Supplemental Indenture, dated as of May 27, 2021, among Bank of Montreal, The Bank of New York Mellon and Wells Fargo Bank, National Association. | |
| 99.3 | Calculation Agency Agreement, dated as of May 27, 2021, between Bank of Montreal and BMO Capital Markets Corp. | |
| 99.4 | Exchange Rate Agency Agreement, dated as of May 27, 2021, between Bank of Montreal and BMO Capital Markets Corp. |
Exhibit 4.7
(Face of Security)
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO BANK OF MONTREAL, OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS A MASTER NOTE WITHIN THE MEANING SPECIFIED HEREIN AND REPRESENTS AN INVESTMENT SECURITY WITHIN THE MEANING OF ARTICLE EIGHT OF THE NEW YORK UNIFORM COMMERCIAL CODE (“NY UCC”). THIS SECURITY IS GOVERNED AND SUBJECT TO SECTION 8-202 OF THE NY UCC. THE TERMS OF THE SECURITIES OF ANY SERIES REPRESENTED HEREBY ARE INCORPORATED BY REFERENCE TO THE APPLICABLE PRICING SUPPLEMENT. BY ACCEPTANCE OF THIS SECURITY, THE HOLDER IS DEEMED TO HAVE KNOWLEDGE OF SUCH TERMS AND TO HOLD SUCH SECURITIES SUBJECT TO AND IN ACCORDANCE WITH SUCH TERMS.
BANK OF
MONTREAL
SENIOR MEDIUM-TERM NOTES, SERIES G
(Master Note)
This Security will not constitute a deposit that is insured under
the Canada Deposit Insurance Corporation Act or by the
United States Federal Deposit Insurance Corporation
This Security is a Global Security (as defined in Section 101 of the Indenture) and may represent one or more series of the Securities as contemplated therein. Bank of Montreal is a Canadian chartered bank (hereinafter called the “Bank,” which term includes any successor Person under the Indenture). The terms for each series of Securities are hereby reflected in this Security, the Bank’s prospectus dated April 20, 2020, as it may be supplemented by the prospectus supplement specified from time to time in the Distribution Agreement, dated May 27, 2021, as it may be supplemented or amended from time to time (the “Prospectus”), relating to the Securities evidenced hereby, and in the pricing supplement(s) identified and noted by the Trustee on Annex A attached hereto (each such pricing supplement, together with the Prospectus and any product supplement designated therein (if applicable), a “Pricing Supplement”), which Pricing Supplement(s) are on file with the Trustee. With respect to each issuance of Securities, the description and terms of such Securities contained in the applicable Pricing Supplement are hereby incorporated by reference herein and are deemed to be a part of this Security as of the Original Issue Date specified on Annex A. Each reference to “this Security” or a “Security of a series” includes and shall be deemed to refer to each Security of a series evidenced hereby that is referenced in a Pricing Supplement. For the avoidance of doubt, a Pricing Supplement may bear a different name given to a similar document filed by the Bank under the Securities Act of 1933 pursuant to Rule 424(b) thereof.
Every term of this Security is subject to modification, amendment, supplementation or elimination through the incorporated terms of the applicable Pricing Supplement, whether or not the phrase “unless otherwise provided in the Pricing Supplement” or language of similar meaning precedes the term of this Security so modified, amended or eliminated. Without limiting the foregoing, in the case of each Security of any series evidenced hereby, the Holder of this Security is directed to the applicable Pricing Supplement for a description of certain terms of such series, including the manner of determining the amount of cash payable or (if applicable) securities or other assets deliverable at maturity or at any other time and the method of determining, and the dates (if any) for the payment and resetting of, interest or other interim payments, if any, on such series of the Securities (including, without limitation, information relating to any applicable interest rate, relevant securities, currency, commodities, or other index or indices, any single security, currency or commodity or basket thereof of any combination of the foregoing that may be relevant to such determination), the dates, if any, on which the principal amount of and interest, if any, on such series of the Securities is determined and payable, the amount payable upon any acceleration of such series of the Securities and the principal amount of such series of the Securities and the principal amount of such series of the Securities deemed to be Outstanding for purposes of determining whether Holders of the requisite principal amount of Securities have made or given any request, demand, authorization, direction, notice, consent, waiver or other action under the Indenture, including any limitation on the ability of the Holder to seek to collect amounts due hereunder.
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Other terms used in this Security that are not defined herein but that are defined in the Indenture referred to in Section 1 on the reverse of this Security are used herein as defined therein.
This Security is a “Master Note”, which term means a Security that provides for incorporation thereof the terms of each Series of Securities by reference to the applicable Pricing Supplements, substantially as contemplated herein.
The Bank for value received, hereby promises to pay to CEDE & CO., or registered assigns, on each principal payment date, including each amortization date, redemption date, repayment date or maturity date, as applicable and specified in the applicable Pricing Supplement and on each interest payment date and at maturity, the interest then due and payable, if any, as so specified in the applicable Pricing Supplement. Unless otherwise set forth in the applicable Pricing Supplement, any premium and any such installment of interest that is overdue at any time shall also bear interest at the rate per annum at which the principal then bears interest (to the extent that the payment of such interest shall be legally enforceable), from the date any such overdue amount first becomes due until it is paid or made available for payment. Notwithstanding the foregoing, interest on any principal, premium or installment of interest that is overdue shall be payable on demand.
Unless otherwise set forth in the applicable Pricing Supplement, any interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the 3rd business day next preceding such Interest Payment Date (a “Regular Record Date”). Any interest not punctually so paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and such Defaulted Interest either may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to the Holder of this Security not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of the applicable series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture.
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Manner of Payment – U.S. Dollars
Payment of any amount payable on any Security of any series represented hereby in U.S. dollars will be made at the office or agency of the Bank maintained for that purpose in The City of New York (or at any other office or agency maintained by the Bank for that purpose) or by wire transfer as described in the next paragraph, against surrender of this Security in the case of any payment due at Maturity (other than any payment of interest that first becomes due on an Interest Payment Date); provided, however, that subject to the next paragraph, payment of interest will be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register.
Payment of any amount payable on any Security of any series represented hereby in U.S. dollars will be made by wire transfer of immediately available funds to an account maintained by the payee with a bank located in the Borough of Manhattan, The City of New York, if (i) the principal of such Security is at least $1,000,000 and (ii) the Holder entitled to receive such payment transmits a written request for such payment to be made in such manner to the Trustee at its Corporate Trust Office, Attention: Corporate Trust Administration, and it is received on or before the fifth Business Day before the day on which such payment is to be made; provided that, in the case of any such payment due at the Maturity of the principal hereof, other than any payment of interest that first becomes due on an Interest Payment Date, subject to the section below entitled “Manner of Payment-Global Securities,” this Security must be surrendered at the office or agency of the Trustee maintained for that purpose in The City of New York (or at any other office or agency maintained by the Trustee for that purpose) in time for the Paying Agent to make such payment in such funds in accordance with its normal procedures. Any such request made with respect to any payment on such Security of any series payable to a particular Holder will remain in effect for all later payments on such Security payable to such Holder, unless such request is revoked on or before the fifth Business Day before a payment is to be made, in which case such revocation shall be effective for such payment and all later payments. In the case of any payment of interest payable on an Interest Payment Date, such written request must be made by the Person who is the registered Holder of this Security on the relevant Regular Record Date. The Bank will pay any administrative costs imposed by banks in connection with making payments by wire transfer with respect to this Security, but any present or future tax, duty, assessment or other governmental charge imposed upon any payment will be borne by the Holder of this Security and may be deducted from the payment by the Bank or the Paying Agent.
Manner of Payment – Global Securities
Notwithstanding any provision of this Security or the Indenture, the Bank may make any and all payments of principal and any premium and interest on this Security pursuant to the applicable procedures of the Depositary for this Security as permitted in Section 301 of the Indenture. Notwithstanding the foregoing, whenever the provisions hereof require that this Security be surrendered against payment of the principal and any premium and interest, such surrender may be effected by means of an appropriate adjustment to Annex A hereto to reflect the discharge of such payment, such an adjustment shall be made by the Trustee in a manner not inconsistent with the procedures of the Depositary, and in such circumstances this Security need not be surrendered.
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Payments Due on a Business Day
Notwithstanding any provision of this Security or the Indenture, where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then payment of interest or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date, Redemption Date, Repayment Date, or at the Stated Maturity; provided, however, that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date, Repayment Date or Stated Maturity, as the case may be, to the date of such payment.
_________________________
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual, facsimile or electronic signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Bank has caused this instrument to be duly executed.
| BANK OF MONTREAL | |||
| By | |||
| Name: | Caroline Dufaux | ||
| Title: | Head, Capital Management and Funding | ||
This is one of the Securities of the series designated herein and referred to in the Indenture.
Dated: May 27, 2021
| THE BANK OF NEW YORK MELLON, as Trustee | |||
| By | |||
| Name: | Francine Kincaid | ||
| Title: | Vice President | ||
[Signature page to Master Note]
(Reverse of Security)
1. Securities and Indenture
This Security is one of a duly authorized issue of securities of the Bank (herein called the “Securities”) issued and to be issued in one or more series under a Senior Indenture, dated as of January 25, 2010, between the Bank and Wells Fargo Bank, National Association, as trustee, as supplemented by the first Supplemental Indenture dated as of September 23, 2018, between the Bank and Wells Fargo Bank, National Association, as trustee, as supplemented by the second Supplemental Indenture dated as of May 27, 2021 (collectively, herein called the “Indenture”), among the Bank, The Bank of New York Mellon (herein called the “Trustee,” which term includes any successor trustee under the Indenture) and Wells Fargo Bank, National Association, and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Bank, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. To the extent lawful, in the event of any conflict between the Indenture or this Security, and any Pricing Supplement, the Pricing Supplement shall prevail.
2. Denominations
The Securities of any series are issuable only in registered form without coupons in “Authorized Denominations,” which term shall have the following meaning. For each Security of any series having a principal amount payable in U.S. dollars, unless otherwise specified on the face of this Security, the Authorized Denominations shall be $1,000 and multiples thereof.
3. Redemption at the Bank’s Option
Unless otherwise set forth in the applicable Pricing Supplement, a Security represented hereby shall not be redeemable at the option of the Bank before the Maturity Date. In the event the Bank elects to redeem the Notes, notice will be given to registered holders in the manner specified in the applicable Pricing Supplement.
In the event of redemption of this Security in part only, appropriate annotation of such partial redemption shall be made on Annex A.
Unless otherwise set forth in the applicable Pricing Supplement, a sinking fund provision will not be applicable.
4. Transfer and Exchange
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of a Security of any Series is registrable in the Security Register, upon surrender of a Security for registration of transfer at the office or agency of the Bank in any place where the principal of and any premium and interest on any Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Bank and the Security Registrar duly executed by, the Holder hereof or his or her attorney duly authorized in writing, and thereupon one or more new Securities of the same series and of like tenor, of Authorized Denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
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As provided in the Indenture and subject to certain limitations therein set forth, Securities of any Series are exchangeable for a like aggregate principal amount of Securities of the same Series and of like tenor of a different Authorized Denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Bank may require payment of a sum sufficient to cover any tax, duty, assessment or other governmental charge payable in connection therewith.
Prior to due presentment of any Security for registration of transfer, the Bank, the Trustee and any agent of the Bank or the Trustee may treat the Person in whose name a Security is registered as the owner hereof for all purposes, whether or not the Security be overdue, and neither the Bank nor the Trustee nor any such agent shall be affected by notice to the contrary.
This Security shall be subject to the provisions of the Indenture relating to Global Securities, including the limitations in Section 305 thereof on transfers and exchanges of Global Securities. Any such exchange shall be recorded by the Trustee on Annex B hereto.
This Security is a Master Note and may be exchanged at any time, solely upon the request of the Bank to the Trustee, for one or more Global Securities in the same aggregate principal amount, each of which may or may not be a Master Note, as requested by the Bank. Any such exchange shall be recorded by the Trustee on Annex B hereto. Each such replacement Global Security that is a Master Note shall reflect such series of Securities that the Bank shall request. Each such replacement Global Security that is not a Master Note shall represent one (and only one) Security as requested by the Bank, and such Global Security shall be appropriately modified so as to reflect the terms of such Security.
5. Defeasance
The Indenture contains provisions for defeasance at any time of the entire indebtedness of a Security or of any series of Securities or certain restrictive covenants and Events of Default with respect to a Security or a series of Securities, in each case upon compliance with certain conditions set forth in the Indenture. Such provisions are applicable to a particular Security or series of Securities only to the extent specified in the applicable Pricing Supplement.
6. Default
If an Event of Default with respect to a Security of any series evidenced hereby shall occur and be continuing, the principal of such Securities plus any accrued and unpaid interest may be declared due and payable in the manner and with the effect provided in the Indenture. Upon payment (i) of the amount of principal and any accrued and unpaid interest so declared due and payable and (ii) of interest on any overdue principal and overdue interest (in each case to the extent that payment of such interest shall be legally enforceable), all of the Bank’s obligations in respect of the payment of the principal of and any interest on such Securities shall terminate.
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7. Remedies
If an Event of Default with respect to Securities of any series evidenced hereby shall occur and be continuing, the principal of such Securities of a series may be declared due and payable in the manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities, the Holders of not less than 25% in principal amount of the Securities of such applicable series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of such series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 90 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by a Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Bank, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
8. Disclosure under the Interest Act (Canada)
For disclosure purposes under the Interest Act (Canada), whenever in the Securities of any series or the Indenture interest at a specified rate is to be calculated on the basis of a period less than a calendar year, the yearly rate of interest to which such rate is equivalent is such rate multiplied by the actual number of days in the relevant calendar year and divided by the number of days in such period.
9. Modification and Waiver
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Bank and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Bank and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Bank with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
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10. Definitions
All terms used in this Security that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
11. Governing Law
This Security and the Indenture shall be governed by and construed in accordance with the laws of the State of New York.
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ANNEX A
| Pricing Supplement (Name and/or Accession Number) |
CUSIP Number and Title of Security |
Initial Principal Amount of Security |
Original Issue Date |
Decrease in Principal Amount |
Increase in Principal Amount |
Effective Date of Increase or Decrease |
Trustee Notation |
| A-1 |
ANNEX A
| Pricing Supplement (Name and/or Accession Number) |
CUSIP Number and Title of Security |
Initial Principal Amount of Security |
Original Issue Date |
Decrease in Principal Amount |
Increase in Principal Amount |
Effective Date of Increase or Decrease |
Trustee Notation |
| A-2 |
ANNEX B
The following exchanges of a part of this Global Security for physical certificates or part of another Global Security have been made:
| Date of Exchange | Amount of Decrease in Principal Amount of this Global Security |
Amount of Increase in Principal Amount of this Global Security |
Principal Amount of this Global Security following such Decrease (or Increase) |
Signature of Authorized Signatory of Trustee |
| B-1 |
ANNEX C
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Security, shall be construed as though they were written out in full according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with the right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT - __________ Custodian _________
(Cust) (Minor)
under Uniform Gifts to Minors Act
______________________________
(State)
Additional abbreviations may also be used
though not in the above list.
_____________________________
| C-1 |
ANNEX C
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_______________________
/______________________/
(Please Print or Typewrite Name and Address
Including Postal Zip Code of Assignee)
the attached Security and all rights thereunder, and hereby irrevocably constitutes and
appoints
to transfer said Security on the books of the Bank, with full power of substitution in
the premises.
| Dated: |
Signature Guaranteed
|
_________________________ |
___________________________ |
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NOTICE: Signature must be guaranteed.
|
NOTICE: The signature to this assignment must correspond with the name of the Holder as written upon the face of the attached Security in every particular, without alteration or enlargement or any change whatever. |
C-2
Exhibit 5.3
|
Osler, Hoskin & Harcourt llp Box 50, 1 First Canadian Place 416.862.6666 facsimile
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Toronto
Montréal
Calgary
Ottawa
Vancouver
New York
|
May 27, 2021
Bank of Montreal 100 King Street West 1 First Canadian Place Toronto, Ontario Canada, M5X 1A1 Dear Sirs/Mesdames: |
Re: Bank of Montreal – Senior Medium-Term Notes, Series G
We have acted as Canadian counsel to Bank of Montreal (the “Bank”) in connection with certain senior debt securities (the “Senior Debt Securities”) to be issued from time to time by the Bank pursuant to a senior indenture dated January 25, 2010 between the Bank and Wells Fargo Bank, National Association, as trustee, as supplemented by the First Supplemental Indenture dated September 23, 2018 between the Bank and Wells Fargo Bank, National Association, as trustee, and the Second Supplemental Indenture dated May 27, 2021 among the Bank, The Bank of New York Mellon, as trustee with respect to the Senior Medium-Term Notes, Series G, and Wells Fargo Bank, National Association (collectively, the “Senior Debt Indenture”).
We have examined certain portions of the following:
| (i) | the Senior Debt Indenture; |
| (ii) | the registration statement of the Bank on Form F-3, file number 333-237342, as amended (the “Registration Statement”); |
| (iii) | the prospectus of the Bank included in the Registration Statement and the prospectus supplement to the Prospectus dated May 27, 2021 (collectively, the “Prospectus”); |
| (iv) | the secretary’s certificate dated May 27, 2021 as to, among other things: |
| (a) | the by-laws of the Bank; |
| (b) | the resolutions of the Board of Directors of the Bank passed on February 25, 2020 and January 15, 2021 (the “Board Resolutions”); and |
| (c) | certain other matters of fact; |
| (v) | the Master Note dated May 27, 2021 (the “Master Note”); |
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| (vi) | the Officer’s Certificate Pursuant to Section 102 and 903 of the Senior Debt Indenture relating to the Senior Debt Securities dated May 27, 2021 (the “Section 102 and 903 Officer’s Certificate”); |
| (vii) | the Officer’s Certificate Pursuant to Sections 201 and 301 of the Senior Debt Indenture relating to the Senior Debt Securities dated May 27, 2021 (the “Section 201 and 301 Officer’s Certificate”); |
| (viii) | the Authorization to Execute and Deliver Securities Pursuant to Section 303 of the Senior Debt Indenture relating to the Senior Debt Securities dated May 27, 2021 (the “Authorization”); |
| (ix) | the Bank Order relating to the Senior Debt Securities dated May 27, 2021 (the “Bank Order”); and |
| (x) | the Distribution Agreement dated May 27, 2021 (the “Distribution Agreement”) between the Bank and BMO Capital Markets Corp. |
For the purposes of our opinions below, we have examined such statutes, public and corporate records, certificates and other documents, and considered such questions of law, as we have considered relevant and necessary as a basis for the opinions expressed herein. In such examination, we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals, and the conformity to original documents of all documents submitted to us as certified or photostatic or electronic copies or facsimiles. For the purposes of the opinions expressed herein, we have, without independent investigation or verification, assumed that the Senior Debt Indenture has been duly authorized, executed and delivered by, and constitutes a legal, valid and binding obligation of, each party thereto other than the Bank.
Insofar as the opinions given herein relate to any future issue of Senior Debt Securities, such opinions must be read subject to our assumption that as at the date of any such issue:
| (i) | the Senior Debt Indenture, Master Note, Section 102 and 903 Officer’s Certificate, Section 201 and 301 Officer’s Certificate, Authorization, Bank Order and Distribution Agreement shall continue to be in full force and effect, unamended; |
| (ii) | the terms of such issue shall have been duly approved by a person or persons so authorized pursuant to the Board Resolutions; |
| (iii) | the aggregate principal amount of all senior debt securities, subordinated debt securities, common shares, Class A preferred shares and Class B preferred shares of the Bank shall not exceed U.S. $25,000,000,000 (or its equivalent in other currencies) or any other limitations set forth in any board resolution of the Bank, as determined pursuant to the Board Resolutions after giving effect to any such issue; |
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| (iv) | the aggregate outstanding amount of all principal at risk notes and principal protected notes of the Bank shall not exceed U.S. $6,000,000,000 (or its equivalent in other currencies) or any other limitations set forth in any board resolution of the Bank, as determined pursuant to the Board Resolutions after giving effect to any such issue; |
| (v) | the Board Resolutions remain in full force and effect, unamended; |
| (vi) | the issue shall comply with the Board Resolutions and any other board resolutions of the Bank applicable to the Senior Debt Securities that are then in force and effect, and any internal approvals in connection with such issuance shall have been duly and validly obtained by those person or persons so authorized pursuant to the Board Resolutions and any other board resolutions of the Bank applicable to the Senior Debt Securities that are then in force and effect; |
| (vii) | the provisions for the payment of interest and other amounts under the Senior Debt Securities shall not provide for the receipt of “interest” by the recipient at a “criminal rate” within the meaning of section 347 of the Criminal Code (Canada); |
| (viii) | any terms specified, or any modifications or additions made to the Prospectus, in the applicable pricing supplement, together with any other applicable documents setting out the terms of the Senior Debt Securities, shall not in any way affect the legality, validity, binding effect or enforceability of the Senior Debt Securities; and |
| (ix) | the laws, jurisprudence and published administrative practices in effect on the date hereof as may pertain to the opinions expressed herein shall not have changed as at the date of any such issue of Senior Debt Securities, including the laws pertaining to the Bank’s authority to issue Senior Debt Securities, so as to render inaccurate such opinions. |
In giving this opinion, we express no opinion as to any laws other than, at the date hereof, the laws of the Province of Ontario and the federal laws of Canada applicable therein.
With respect to the continuing existence of the Bank as a Schedule I bank under the Bank Act (Canada) referred to in paragraph 1 below, we have relied, without independent investigation or verification, exclusively upon a Certificate of Confirmation dated May 26, 2021 issued by the Office of the Superintendent of Financial Institutions, which certificate we assume is accurate as of the date hereof.
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Further, we draw to your attention that some Senior Debt Securities specified in the applicable prospectus supplements or pricing supplements, as applicable, as being “bail-inable debt securities” may be subject to conversion in whole or part into common shares of the Bank or its affiliates under subsection 39.2(2.3) of the Canada Deposit Insurance Corporation Act (Canada).
Based and relying upon the foregoing and subject to the qualifications set forth herein, we are of the opinion that:
| 1. | The Bank validly exists as a Schedule I bank under the Bank Act (Canada) and has the corporate power to create, issue and sell the Senior Debt Securities. |
| 2. | When the creation of the Senior Debt Securities has been duly authorized by the Bank and when the terms of particular Senior Debt Securities and the issuance and sale of such Senior Debt Securities have been duly authorized by all necessary corporate action in conformity with the Senior Debt Indenture, and when such Senior Debt Securities have been duly executed, authenticated and issued in accordance with the Senior Debt Indenture and delivered against payment therefor as contemplated in the Registration Statement and the Prospectus and any applicable agreement of purchase and sale, such Senior Debt Securities will be validly issued. |
| 3. | The Senior Debt Indenture has been duly authorized, executed and, to the extent delivery is a matter governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, delivered by the Bank, and does, with respect to the provisions thereof governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, constitute a legal, valid and binding obligation of the Bank enforceable against it in accordance with its terms. |
The opinions expressed herein are provided solely for the benefit of the addressees in connection with the Senior Debt Securities to be issued under the Registration Statement and are not to be transmitted to any other person, nor are they to be relied upon by any other person or for any other purpose or referred to in any public document or filed with any government agency or other person without our prior express consent.
The opinion set forth in paragraph 3 above as to the enforceability of the Senior Debt Indenture is subject to the following qualifications:
| (i) | enforceability may be limited by the Canada Deposit Insurance Corporation Act (Canada), the Winding-up and Restructuring Act (Canada) and bankruptcy, insolvency, reorganization, receivership, moratorium, arrangement or winding-up laws or other similar laws affecting the enforcement of creditors’ rights generally; |
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Page 5
| (ii) | enforceability may be limited by equitable principles, including the principle that equitable remedies such as specific performance and injunction may only be granted in the discretion of a court of competent jurisdiction; |
| (iii) | pursuant to the Currency Act (Canada) a judgment by a Canadian court must be awarded in Canadian currency and that such judgment may be based on a rate of exchange in existence on a day other than the day of payment; and |
| (iv) | enforceability will be subject to the limitations contained in the Limitations Act, 2002 (Ontario), and we express no opinion as to whether a court may find any provision of the Senior Debt Indenture to be unenforceable as an attempt to vary or exclude a limitation period under that Act. |
If a pricing supplement relating to the offer and sale of particular notes (the “Notes”) representing the Senior Debt Securities is prepared and filed by the Bank with the U.S. Securities and Exchange Commission on a date after the date hereof and such pricing supplement contains a reference to our firm and our opinion substantially in the form set forth below, the consent set forth below shall apply to the reference to us and our opinion in substantially the following form:
In the opinion of Osler, Hoskin & Harcourt LLP, the issue and sale of the Notes has been duly authorized by all necessary corporate action of the Bank in conformity with the Senior Indenture, and when this pricing supplement has been attached to, and duly notated on, the master note that represents the Notes, the Notes will have been validly executed and issued and, to the extent validity of the Notes is a matter governed by the laws of the Province of Ontario, or the laws of Canada applicable therein, and will be valid obligations of the Bank, subject to the following limitations (i) the enforceability of the Senior Indenture may be limited by the Canada Deposit Insurance Corporation Act (Canada), the Winding-up and Restructuring Act (Canada) and bankruptcy, insolvency, reorganization, receivership, moratorium, arrangement or winding-up laws or other similar laws affecting the enforcement of creditors’ rights generally; (ii) the enforceability of the Senior Indenture may be limited by equitable principles, including the principle that equitable remedies such as specific performance and injunction may only be granted in the discretion of a court of competent jurisdiction; (iii) pursuant to the Currency Act (Canada) a judgment by a Canadian court must be awarded in Canadian currency and that such judgment may be based on a rate of exchange in existence on a day other than the day of payment; and (iv) the enforceability of the Senior Indenture will be subject to the limitations contained in the Limitations Act, 2002 (Ontario), and such counsel expresses no opinion as to whether a court may find any provision of the Senior Indenture to be unenforceable as an attempt to vary or exclude a limitation period under that Act. This opinion is given as of the date hereof and is limited to the laws of the Provinces of Ontario and the federal laws of Canada applicable thereto. In addition, this opinion is subject to certain assumptions about (i) the Trustees’ authorization, execution and delivery of the Senior Indenture, (ii) the genuineness of signatures and (iii) certain other matters, all as stated in the letter of such counsel dated May 27, 2021, which has been filed as Exhibit 5.3 to Bank of Montreal’s Form 6-K filed with the SEC and dated May 27, 2021.
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Page 6
Each of the opinions set forth herein or referenced in any pricing supplement relating to the Notes may be relied upon by each of Morrison & Foerster LLP and Mayer Brown LLP for the purposes of their respective opinions with respect to the matters contemplated hereby.
We hereby consent to the filing of this opinion as an exhibit to the Bank’s Report of Foreign Private Issuer on Form 6-K. In giving such consent, we do not thereby admit that we come within the category of persons whose consent is required by the United States Securities Act of 1933, as amended, or the rules and regulations promulgated thereunder.
Yours very truly,
/s/ Osler, Hoskin & Harcourt LLP
EXHIBIT 5.4
 |
250 West 55th Street
Telephone: 212.468.8000 Facsimile: 212.468.7900
www.mofo.com
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morrison & foerster llp
beijing, berlin, boston, brussels, san diego, san francisco, shanghai, singapore, tokyo, washington, d.c. |
May 27, 2021
Bank of Montreal
100 King Street West
1 First Canadian Place
Toronto, Ontario
Canada, M5X 1A1
Re: Bank of Montreal – Medium-Term Notes, Series G
Ladies and Gentlemen:
We have acted as special counsel in connection with certain series of senior debt securities (the “Notes”) which will be issued from time to time by Bank of Montreal, a bank organized under the laws of Canada (the “Bank”). The offerings of the Notes have been registered with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), under a registration statement on Form F-3, file number 333-237342 (the “Registration Statement”).
The Notes will be issued pursuant to the Senior Indenture, dated as of January 25, 2010, as supplemented by the First Supplemental Indenture dated as of September 23, 2018, between the Bank and Wells Fargo Bank, National Association (the “Original Trustee”), and the Second Supplemental Indenture dated as of May 27, 2021, between the Bank, the Original Trustee and The Bank of New York Mellon (collectively, the “Senior Indenture”).
In connection with this opinion, we have examined such documents, instruments, certificates of public officials and of the Bank and such questions of law as we have deemed necessary for the purpose of rendering the opinion set forth herein. We also have examined the Registration Statement, including the form of the Senior Indenture and the form of master note which will represent the Notes.
In such examination, we have assumed the genuineness of all signatures and the authenticity of all items submitted to us as originals and the conformity with originals of all items submitted to us as copies.
The opinions hereinafter expressed are subject to the following qualifications and exceptions:
(i) the effect of bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws relating to or affecting the rights of creditors generally, including, without limitation, laws relating to fraudulent transfers or conveyances, preferences and equitable subordination;
(ii) limitations imposed by general principles of equity upon the availability of equitable remedies or the enforcement of provisions of any Notes, and the effect of judicial decisions which have held that certain provisions are unenforceable where their enforcement would violate the implied covenant of good faith and fair dealing, or would be commercially unreasonable, or where their breach is not material;
(iii) our opinion is based upon current statutes, rules, regulations, cases and official interpretive opinions, and it covers certain items that are not directly or definitively addressed by such authorities;
(iv) we express no opinion as to the effect of any possible judicial, administrative or other action giving effect to, or which constitute, the actions of foreign governmental authorities or foreign laws;
(v) we express no opinion as to matters governed by laws of any jurisdiction other than the laws of the State of New York and the federal laws of the United States of America, as in effect on the date hereof; and
(vi) with respect to all federal and provincial laws of Canada, we are relying upon the opinion, dated on or about the date hereof, of the Bank’s Canadian counsel, Osler, Hoskin & Harcourt LLP, and our opinion is subject to the assumptions, qualifications and limitations that are set forth in that opinion.
Based on the foregoing, it is our opinion that when the terms of the Notes to be issued under the Senior Indenture and their issuance and sale have been duly established in conformity with the Senior Indenture so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Bank, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Bank, and when the Notes have been duly completed in accordance with the Senior Indenture and issued and sold as contemplated by the Registration Statement, and if all the foregoing actions have been duly authorized by the Bank, the Notes will be valid, binding and enforceable obligations of the Bank, entitled to the benefits of the Senior Indenture.
If a pricing supplement relating to the offer and sale of any particular Note is prepared and filed by the Bank with the Commission on a future date and the pricing supplement contains a reference to this firm and our opinion substantially in the form set forth below, the consent set forth below shall apply to the reference to us and our opinion in substantially the following form:
In the opinion of Morrison & Foerster LLP, when the pricing supplement has been attached to, and duly notated on, the master note that represents the Notes, and the Notes have been issued and sold as contemplated by the prospectus supplement and the prospectus, the Notes will be valid, binding and enforceable obligations of Bank of Montreal, entitled to the benefits of the Senior Indenture, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability (including, without limitation, concepts of good faith, fair dealing and the lack of bad faith). This opinion is given as of the date hereof and is limited to the laws of the State of New York. This opinion is subject to customary assumptions about the Senior Indenture and the genuineness of signatures and to such counsel’s reliance on the Bank and other sources as to certain factual matters, all as stated in the legal opinion dated May 27, 2021, which has been filed as Exhibit 5.4 to the Bank’s Form 6-K dated May 27, 2021.
We hereby consent to the filing of this opinion as an exhibit to a Report on Form 6-K filed by the Bank with the Commission on or about the date hereof and its incorporation by reference into the Registration Statement. In giving our consent hereunder, we do not admit hereby that we come within the category of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations of the Commission thereunder.
| Very truly yours, | |
| /s/ Morrison & Foerster LLP |
EXHIBIT 5.5
 |
Mayer Brown LLP 1221 Avenue of the Americas
T: +1 212 506 2500 F: +1 212 262 1910 mayerbrown.com |
May 27, 2021
Bank of Montreal
100 King Street West
1 First Canadian Place
Toronto, Ontario
Canada, M5X 1A1
Re: Bank of Montreal – Medium-Term Notes, Series G
Ladies and Gentlemen:
We have acted as special U.S. counsel in connection with certain senior debt securities (the “Notes”) which will be issued from time to time by Bank of Montreal, a bank organized under the laws of Canada (the “Bank”). The offerings of the Notes have been registered with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), under a registration statement on Form F-3, file number 333-237342, as amended (the “Registration Statement”).
The Notes will be issued pursuant to the Senior Indenture, dated as of January 25, 2010, as supplemented by the first Supplemental Indenture dated as of September 23, 2018, between the Bank and Wells Fargo Bank, National Association (the “Original Trustee”) and the second Supplemental Indenture dated as of May 27, 2021 between the Bank, the Original Trustee and the Bank of New York Mellon (collectively, the “Senior Indenture”).
In connection with this opinion, we have examined such documents, instruments, certificates of public officials and of the Bank and such questions of law as we have deemed necessary for the purpose of rendering the opinion set forth herein.
In such examination, we have assumed the genuineness of all signatures and the authenticity of all items submitted to us as originals and the conformity with authentic originals of all items submitted to us as copies.
The opinions hereinafter expressed are subject to the following qualifications and exceptions:
| (i) | the effect of bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws relating to or affecting the rights of creditors generally, including, without limitation, laws relating to fraudulent transfers or conveyances, preferences and equitable subordination; |
| (ii) | limitations imposed by general principles of equity upon the availability of equitable remedies or the enforcement of provisions of any Notes, and the effect of judicial decisions which have held that certain provisions are unenforceable where their enforcement would violate the implied covenant of good faith and fair dealing, or would be commercially unreasonable, or where their breach is not material; |
| (iii) | our opinion is based upon current statutes, rules, regulations, cases and official interpretive opinions, and it covers certain items that are not directly or definitively addressed by such authorities; |
| (iv) | we express no opinion as to the effect of any possible judicial, administrative or other action giving effect to, or which constitute, the actions of foreign governmental authorities or foreign laws; |
| (v) | we express no opinion as to matters governed by laws of any jurisdiction other than the laws of the State of New York and the federal laws of the United States of America, as in effect on the date hereof; and |
| (vi) | with respect to all federal and provincial laws of Canada, we are relying upon the opinion, dated the date hereof, of the Bank’s Canadian counsel, Osler, Hoskin & Harcourt LLP, and our opinion is subject to the assumptions, qualifications and limitations that are set forth in that opinion. |
Based on the foregoing, it is our opinion that when the terms of the Notes to be issued under the Senior Indenture and their issuance and sale have been duly established in conformity with the Senior Indenture so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Bank, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Bank, and when the Notes have been duly completed in accordance with the Senior Indenture and issued and sold as contemplated by the Registration Statement, and if all the foregoing actions have been duly authorized by the Bank, the Notes will be valid, binding and enforceable obligations of the Bank, entitled to the benefits of the Senior Indenture.
If a pricing supplement relating to the offer and sale of any particular Note is prepared and filed by the Bank with the Commission on a future date and the pricing supplement contains a reference to this firm and our opinion substantially in the form set forth below, the consent set forth below shall apply to the reference to us and our opinion in substantially the following form:
“In the opinion of Mayer Brown LLP, when the pricing supplement has been attached to, and duly notated on, the master note that represents the Notes, and the Notes have been issued and sold as contemplated by the prospectus supplement and the prospectus, the Notes will be valid, binding and enforceable obligations of Bank of Montreal, entitled to the benefits of the Senior Indenture, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability (including, without limitation, concepts of good faith, fair dealing and the lack of bad faith). This opinion is given as of the date hereof and is limited to the laws of the State of New York. Insofar as this opinion involves matters governed by Canadian law, Mayer Brown LLP has assumed, without independent inquiry or investigation, the validity of the matters opined on by Osler, Hoskin & Harcourt LLP, Canadian legal counsel for the issuer, in its opinion expressed above. This opinion is subject to customary assumptions about the trustees’ authorization, execution and delivery of the Senior Indenture and the genuineness of signatures and to such counsel’s reliance on the Bank and other sources as to certain factual matters, all as stated in the legal opinion dated May 27, 2021, which has been filed as an exhibit to a report on Form 6-K by the Bank of Montreal on May 27, 2021.”
We hereby consent to the filing of this opinion as an exhibit to a report on Form 6-K to be filed by the Bank with the Commission on or about the date hereof and its incorporation by reference into the Registration Statement. In giving our consent hereunder, we do not admit hereby that we come within the category of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations of the Commission thereunder.
| Very truly yours, | |
| /s/ Mayer Brown LLP |
Exhibit 8.3
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79 Wellington St. W., 30th Floor P. 416.865.0040 | F. 416.865.7380 www.torys.com |
May 27, 2021
Bank of Montreal
100 King Street West
1 First Canadian Place
Toronto, Ontario
Canada, M5X 1A1
Ladies and Gentlemen:
We are rendering this opinion as special Canadian tax counsel to Bank of Montreal, a bank organized under the laws of Canada (the “Bank”), in connection with the Bank’s registration statement on Form F-3 (File No. 333-237342) (the “Registration Statement”). The Registration Statement was filed with the Securities and Exchange Commission (the “Commission”) on April 20, 2020 and registers, among other securities, Senior Debt Securities, including up to $25,000,000,000 aggregate principal amount of the Bank’s Senior Medium-Term Notes, Series G (the “Notes”), to be issued from time to time pursuant to a prospectus supplement dated May 27, 2021 (the “Prospectus Supplement”) to the prospectus dated April 20, 2020 forming a part of the Registration Statement (the “Prospectus”) and the Indenture dated as of January 25, 2010 between the Bank and Wells Fargo Bank, National Association, as trustee, as supplemented by the first supplemental indenture thereto, dated as of September 23, 2018, between the Bank and Wells Fargo Bank, National Association, as trustee, and the second supplemental indenture thereto, dated as of May 27, 2021, among the Bank, The Bank of New York Mellon, as trustee with respect to the Notes, and Wells Fargo Bank, National Association.
We are qualified to practice law only in the Province of Ontario. We express no opinion as to the laws of any jurisdiction other than those of the Province of Ontario and the federal laws of Canada applicable therein in effect on the date hereof.
We have reviewed the discussion set forth under the heading “Certain Income Tax Consequences – Certain Canadian Income Tax Considerations” in the Prospectus Supplement. Based upon current law, we adopt such discussion as our opinion with respect to the material Canadian federal income tax consequences of the purchase, ownership and disposition of Notes, subject to the qualifications and limitations set forth in such discussion. We also confirm as our opinion the discussion of the material Canadian federal income tax consequences of the purchase, ownership and disposition of Notes contained in any prospectus supplement, product supplement or pricing supplement in which we are named as the provider of such opinion, subject to the qualifications and limitations set forth in such discussion.
We consent to your filing a copy of this opinion as Exhibit 8.3 to a Current Report on Form 6-K, which will be incorporated by reference into the Registration Statement. In giving such permission, we do not admit hereby that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Commission thereunder. This opinion is expressed as of the date hereof and the date of any prospectus supplement, product supplement or pricing supplement in which we are named as the provider of a Canadian tax opinion contained therein. We disclaim any undertaking to advise you of any subsequent changes of the facts stated or assumed herein or any subsequent changes in applicable law after the date of this letter or the date of such prospectus supplement, product supplement or pricing supplement.
Yours truly,
/s/ Torys LLP
- 2 -
Exhibit 23.9
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79 Wellington St. W., 30th Floor P. 416.865.0040 | F. 416.865.7380 www.torys.com |
May 27, 2021
Bank of Montreal
100 King Street West
1 First Canadian Place
Toronto, Ontario
Canada, M5X 1A1
Re: Bank of Montreal – Senior Medium-Term Notes, Series G
Ladies and Gentlemen:
Bank of Montreal, a bank organized under the laws of Canada (the “Bank”), has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form F-3 (File No. 333-237342), for the purpose of registering under the Securities Act of 1933, as amended, among other securities, Senior Debt Securities, including up to $25,000,000,000 aggregate principal amount of the Bank’s Senior Medium-Term Notes, Series G (the “Notes”), to be issued from time to time pursuant to a prospectus supplement dated May 27, 2021 to the prospectus dated April 20, 2020 forming a part of the Registration Statement (the “Prospectus”), and the Indenture, dated as of January 25, 2010 between the Bank and Wells Fargo Bank, National Association, as trustee, as supplemented by the first supplemental indenture thereto, dated as of September 23, 2018, between the Bank and Wells Fargo Bank, National Association, as trustee, and the second supplemental indenture thereto, dated as of May 27, 2021, among the Bank, The Bank of New York Mellon, as trustee with respect to the Notes, and Wells Fargo Bank, National Association.
We hereby consent to any reference to us, in our capacity as special Canadian tax counsel to the Bank, or any opinion of ours delivered in that capacity in a prospectus supplement, product supplement or pricing supplement relating to the offer and sale of any particular Note or Notes prepared and filed by the Bank with the Commission on this date or a future date.
In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
Sincerely,
/s/ Torys LLP
EXHIBIT 23.10
May 27, 2021
Bank of Montreal
100 King Street West
1 First Canadian Place
Toronto, Ontario
Canada, M5X 1A1
Re: Bank of Montreal - Medium-Term Notes, Series G
Ladies and Gentlemen:
Bank of Montreal, a bank organized under the laws of Canada (the “Bank”), has filed with the Securities and Exchange Commission (the “Commission”) a Registration Statement on Form F-3, file number 333-237342, for the purpose of registering under the Securities Act of 1933, as amended, among other securities, the Company's Senior Medium-Term Notes, Series G (the “Notes”), to be issued from time to time pursuant to the Indenture, dated as of January 25, 2010, as supplemented by the first Supplemental Indenture dated as of September 23, 2018, between the Bank and Wells Fargo Bank, National Association (the “Original Trustee”), and the second Supplemental Indenture dated as of May 27, 2021, between the Bank, the Original Trustee and The Bank of New York Mellon.
We hereby consent to any reference to us, in our capacity as special tax counsel to the Bank, or any opinion of ours delivered in that capacity in a product supplement, product prospectus supplement or pricing supplement relating to the offer and sale of any particular Note or Notes prepared and filed by the Bank with the Commission on this date or a future date.
In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
| Very truly yours, |
| /s/ Morrison & Foerster LLP |
EXHIBIT 23.11
|
Mayer Brown LLP 1221 Avenue of the Americas
T: +1 212 506 2500 F: +1 212 262 1910 mayerbrown.com |
May 27, 2021
Bank of Montreal
100 King Street West
1 First Canadian Place
Toronto, Ontario
Canada, M5X 1A1
Re: Bank of Montreal - Medium-Term Notes, Series G
Ladies and Gentlemen:
Bank of Montreal, a bank organized under the laws of Canada (the “Bank”), has filed with the Securities and Exchange Commission (the “Commission”) a Registration Statement on Form F-3, file number 333-237342, for the purpose of registering under the Securities Act of 1933, as amended, among other securities, the Company's Senior Medium-Term Notes, Series G (the “Notes”), to be issued from time to time pursuant to the Senior Indenture, dated as of January 25, 2010, as supplemented by the first Supplemental Indenture dated as of September 23, 2018, between the Bank and Wells Fargo Bank, National Association (the “Original Trustee”) and the second Supplemental Indenture dated as of May 27, 2021 between the Bank, the Original Trustee and the Bank of New York Mellon (collectively, the “Senior Indenture”).
We hereby consent to any reference to us, in our capacity as special tax counsel to the Bank, or any opinion of ours delivered in that capacity in a product supplement, product prospectus supplement or pricing supplement relating to the offer and sale of any particular Note or Notes prepared and filed by the Bank with the Commission on this date or a future date.
In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
| Very truly yours, |
| /s/ Mayer Brown LLP |
Exhibit 99.1
BANK OF MONTREAL
US$25,000,000,000
Senior Medium-Term Notes
Series G
Distribution Agreement
May 27, 2021
To the Agents named in Annex VI hereto.
Ladies and Gentlemen:
Bank of Montreal, a Canadian chartered bank (the “Bank”), proposes, subject to the terms and conditions stated herein, to issue and sell, from time to time, its Senior Medium-Term Notes, Series G (the “Securities”), at an aggregate initial offering price of up to US$25,000,000,000 or the equivalent thereof in one or more foreign or composite currencies or currency units, provided that the Bank may increase the amount of Securities it may sell at any time as provided in Section 11(c) hereof, and agrees with each of you (individually, an “Agent” and, collectively, the “Agents”) as set forth in this Distribution Agreement (the “Agreement”).
Subject to the terms and conditions stated herein (including Section 15 hereof), the Bank hereby appoints each Agent as an agent of the Bank for the purpose of soliciting and receiving offers to purchase the Securities from the Bank, and the Bank and each of the Agents severally agree that whenever the Bank determines to sell Securities directly to any Agent as principal for resale to others, the Bank and such Agent will, unless otherwise agreed by them, enter into either a separate agreement, substantially in the form of Annex I hereto, relating to such sale, or another agreement (which may be oral and confirmed in writing) relating to the purchase by such Agent as principal (each, a “Terms Agreement”), in each case in accordance with Section 2(b) hereof. The Bank reserves the right to sell Securities directly on its own behalf and to enter into agreements with other broker-dealers as Agents as contemplated by Section 11(b) hereof. This Agreement shall not be construed to create either an obligation on the part of the Bank to sell any Securities or an obligation of any Agent to purchase Securities as principal.
The terms, conditions and rights of the Securities shall be as specified in or established pursuant to the Senior Indenture, dated as of January 25, 2010, between the Bank and Wells Fargo Bank, National Association, as trustee, as supplemented by the First Supplemental Indenture thereto, dated as of September 23, 2018, between the Bank and Wells Fargo Bank, National Association, as trustee, and the Second Supplemental Indenture thereto, dated as of May 27, 2021, among the Bank, The Bank of New York Mellon, as trustee with respect to the Senior Medium-Term Notes, Series G (the “Trustee”), and Wells Fargo Bank, National Association, and as the same may be amended and supplemented from time to time (collectively, the “Indenture”). The Securities shall have the maturity ranges, annual interest rates (if any), redemption provisions (if any) and other terms set forth in supplements to the Basic Prospectus referred to below. The Securities may be issued in amounts denominated in United States dollars or in amounts denominated in foreign currencies, including the Euro, or any composite currency. References herein to amounts stated in United States dollars shall be deemed to refer to the equivalent amount of foreign currency or composite currency to the extent applicable. The Securities will be issued, and the terms thereof established, from time to time by the Bank in accordance with the Indenture and, if applicable, such terms will be specified in a related Terms Agreement.
The Bank has filed with the Securities and Exchange Commission (the “Commission”) a registration statement (No. 333-237342) on Form F-3 for the registration under the Securities Act of 1933, as amended (the “Act”), of, among other securities, the Securities. Such registration statement, and any post-effective amendment thereto as of the date of this Agreement, excluding the exhibits thereto, but including all documents incorporated by reference in the prospectus included therein and the information, if any, deemed to be part of the registration statement pursuant to Rule 430B under the Act, has been declared effective by the Commission. The prospectus filed as part of the registration statement, in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement is hereinafter called the “Basic Prospectus”; any preliminary prospectus (including the Basic Prospectus or the Prospectus (as hereinafter defined), as supplemented by any preliminary prospectus supplement) relating to the Securities filed with the Commission pursuant to Rule 424 under the Act is hereinafter called a “Preliminary Prospectus”; the various parts of such registration statement, including all exhibits thereto but excluding Form T-1 and including all documents incorporated by reference in the prospectus included therein and any prospectus supplement relating to the Securities that is filed with the Commission and deemed by virtue of Rule 430B under the Act to be part of such registration statement, each as amended at the time such part of such registration statement became effective, are hereinafter collectively called the “Registration Statement”; the prospectus (including, if applicable, any prospectus supplement) relating to the Securities in the form in which it has most recently been filed, or transmitted for filing, with the Commission on or prior to the date of this Agreement, is hereinafter called the “Prospectus”; any reference herein to the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to the applicable form under the Act, as of the date of such prospectus; any supplement to the Prospectus that sets forth only the terms of a particular issue of the Securities and is filed in accordance with Section 4(a) hereof is hereinafter called a “Pricing Supplement”; any reference to any amendment or supplement to the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any post-effective amendment to the Registration Statement, any prospectus supplement relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Act and any documents filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated by reference therein, in each case, after the date of the Basic Prospectus, such Preliminary Prospectus or the Prospectus, as the case may be; any reference herein to the “Prospectus as amended or supplemented”, when used with respect to any date, other than in Section 1(c) hereof, shall be deemed to refer to and include the Prospectus as most recently amended or supplemented (including by the applicable Pricing Supplement and any other prospectus supplement specifically referred to in such Pricing Supplement) in relation to the Securities to be sold pursuant to this Agreement, in the form most recently filed or transmitted for filing with the Commission pursuant to Rule 424(b) under the Act and in accordance with Section 5(a) hereof, including any documents incorporated by reference therein as of the date of such filing. The term “Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433(h) under the Act, of the Bank relating to the Securities. The term “Applicable Time” in respect of a particular offering of the Securities means the time specified in the applicable Terms Agreement or, if no Terms Agreement exists for a particular offering of the Securities, the time immediately prior to the time of the first sale by an Agent of any Securities with regard to such particular offering of the Securities. The term “Pricing Disclosure Package” means the Prospectus as amended or supplemented immediately prior to the Applicable Time, together with the Term Sheet (as hereinafter defined), if any, and any other Issuer Free Writing Prospectus, if any, identified on a schedule to the applicable Terms Agreement or, if no Terms Agreement exists, any other Issuer Free Writing Prospectus, if any, that has been prepared by or on behalf of the Bank relating to any particular offering of the Securities as of the Applicable Time for such particular offering.
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1. The Bank represents and warrants to, and agrees with, each Agent that:
(a) The Bank meets the requirements for use of Form F-3 under the Act; the Registration Statement has been declared effective by the Commission and no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission;
(b) (i) Each part of the Registration Statement, the Pricing Disclosure Package and the Prospectus conform and, as amended or supplemented as of the date of any Pricing Supplement and the related settlement date, will conform, in all material respects with the requirements of the Act, the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”) and the rules and regulations of the Commission thereunder; (ii) each part of the Registration Statement, when such part became effective, and as of the date of this Agreement, did not contain and each such part, as amended or supplemented as of the date of any Pricing Supplement and the related settlement date, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iii) the Prospectus does not contain and, as amended or supplemented as of the date of any Pricing Supplement and the related settlement date, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that with respect to clauses (i) through (iii), (1) the foregoing shall not apply to (A) statements in or omissions from any such document in reliance upon, and in conformity with, written information furnished to the Bank by such Agent expressly for use in the preparation thereof, or (B) those parts of the Registration Statement that constitute the Statements of Eligibility (Forms T-1) under the Trust Indenture Act of the Trustees and (2) the representations and warranties set forth above, when made as of the date of this Agreement, shall be deemed not to cover information concerning an offering of particular Securities;
(c) (i) With respect to any issue of Securities to be sold pursuant to a Terms Agreement, the “Applicable Time” will be such time on the date of such Terms Agreement as is specified therein as the Applicable Time, and the “Pricing Disclosure Package” will be the Prospectus as amended or supplemented at the Applicable Time together with (A) the information referenced in Schedule II(b) to such Terms Agreement and (B) such other documents, if any, as may be listed in Schedule II(a) to such Terms Agreement, taken together; (ii) with respect to each such issue of Securities, the Pricing Disclosure Package, as of the Applicable Time and as of the settlement date with respect to such issue of Securities, will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (iii) with respect to each such issue of Securities, each Issuer Free Writing Prospectus listed in Schedule II(a) to the applicable Terms Agreement, if any, will not conflict (except to the extent that such conflict is a modification of or supersedes previous information) with the information contained in the Registration Statement, the Prospectus or the Prospectus as amended or supplemented and, taken together with the Pricing Disclosure Package as of the Applicable Time, will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; provided, however, that the representations and warranties in clauses (ii) and (iii) of this Section 1(c) shall not apply to statements or omissions made in any Pricing Disclosure Package or Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to the Bank by such Agent expressly for use therein;
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(d) The documents incorporated by reference in the Prospectus, when they became effective or were filed with the Commission, or furnished to the Commission and expressly incorporated by reference, as the case may be, complied in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when such documents become effective or are filed, or furnished and expressly incorporated by reference, with the Commission, as the case may be, will comply in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder;
(e) The Bank exists as a Schedule I bank under the Bank Act (Canada), and has the requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus as amended or supplemented and is qualified to transact business, except to the extent that the failure to be so qualified would not have a Material Adverse Effect as hereinafter defined;
(f) The Bank is not an “ineligible issuer” in connection with the offering of Securities pursuant to Rule 164 under the Act. Any Issuer Free Writing Prospectus that the Bank is required to file pursuant to Rule 433(d) under the Act has been, or will be, filed with the Commission in accordance with the requirements of the Act and the applicable rules and regulations of the Commission thereunder. Each Issuer Free Writing Prospectus that the Bank has filed or is required to file, pursuant to Rule 433(d) under the Act complies or will comply, in all material respects, with the requirements of the Act and the applicable rules and regulations of the Commission thereunder;
(g) Since the date of the latest audited financial statements included or incorporated by reference in the Prospectus as amended or supplemented there has not been (i) any material change in the share capital (other than as occasioned by common shares of the Bank having been issued pursuant to the Bank’s employee stock purchase plans, equity incentive option plans or dividend reinvestment plans, as occasioned upon conversion of convertible securities, as occasioned by shares issued in exchange for subsidiary corporation shares or acquisitions, and other than repurchased under the Bank’s normal course issuer bid), or (ii) any material adverse change in or affecting the financial position, shareholders’ equity or results of operations of the Bank and its consolidated subsidiaries considered as an entirety, in each case, otherwise than as set forth or contemplated in the Prospectus and the Registration Statement, each as amended or supplemented (any such change described in clause (ii) is referred to as a “Material Adverse Change”);
(h) This Agreement has been authorized, executed and delivered by the Bank;
(i) The series constituting the Securities has been duly authorized and established in conformity with the Indenture and, when the terms of a particular Security and of the issue and sale thereof have been duly authorized and established by all necessary corporate action in conformity with the Indenture, and such Security has been duly executed, authenticated and issued in accordance with the Indenture, and delivered against payment therefor as contemplated by this Agreement and any applicable Terms Agreement, such Security will have been duly executed, authenticated, issued and delivered and will constitute a valid and legally binding obligation of the Bank entitled to the benefits provided by the Indenture, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; the Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized, executed and delivered by, and constitutes a valid and legally binding obligation of, the Bank, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and the Indenture conforms and the Securities will conform in all material respects to the descriptions thereof in the Prospectus as amended or supplemented;
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(j) The execution and delivery by the Bank of this Agreement, the Indenture, the Securities and the issue and sale of the Securities and the compliance by the Bank with all of the provisions of the Securities, the Indenture, this Agreement and any Terms Agreement, and the consummation of the transactions herein and therein contemplated, will not result in a violation or breach of any of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Bank is a party or by which the Bank is bound or to which any of the property or assets of the Bank is subject, or result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Bank or any of its properties, except, in each case, for such conflicts, breaches, defaults and violations that would not have a material adverse effect on the business, financial position, shareholders’ equity or results of operations of the Bank and its subsidiaries considered as an entirety (a “Material Adverse Effect”) or affect the validity of the Securities, nor will such action result in any material violation of the provisions of the Bank Act (Canada) or a violation of the by-laws of the Bank; and no consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required by the Bank for the solicitation of offers to purchase Securities and the issue and sale of the Securities or the consummation by the Bank of the other transactions contemplated by this Agreement, any Terms Agreement or the Indenture, except to the extent that the failure to obtain or make such consents, approvals, authorizations, orders, registrations or qualifications would not have a Material Adverse Effect or affect the validity of the Securities, and such consents, approvals, authorizations, orders, registrations or qualifications as have been, or will have been prior to the date of this Agreement, obtained under the Act or the Trust Indenture Act and such consents, approvals, authorizations, orders, registrations or qualifications as may be required under state securities or Blue Sky laws (including insurance laws of any state relating to offers and sales of securities in such state) or under applicable Canadian securities or banking laws in connection with the solicitation by any Agent of offers to purchase the Securities from the Bank and with purchases of the Securities by any Agent as principal, as the case may be, both in the manner contemplated hereby;
(k) There is no action, suit or proceeding pending or to the knowledge of the executive officers of the Bank threatened against the Bank or any of its subsidiaries, which has, or may reasonably be expected in the future to have, a Material Adverse Effect, except as set forth or contemplated in the Registration Statement and the Prospectus, each as amended or supplemented;
(l) The Bank is not, and after giving effect to the offer and sales of the Securities and application of the proceeds thereof as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, will not be required to register as an “investment company” under the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder;
(m) Any auditor who audited the financial statements incorporated by reference into the Registration Statement and the Prospectus as amended or supplemented was an independent registered public accounting firm for the period covered by such auditor’s opinion with respect to such financial statements within the meaning of the Act and the regulations thereunder and the applicable Canadian securities laws;
(n) The Bank’s consolidated financial statements included or incorporated by reference in the Registration Statement (and any amendments or supplements thereto), the Prospectus, the Prospectus as amended or supplemented and the Pricing Disclosure Package together with the related schedules and notes comply in all material respects with the applicable requirements of the Act and the Exchange Act, as applicable, and present fairly, in all material respects, the consolidated financial position, results of operations and changes in financial position of the Bank and its subsidiaries on the basis stated therein at the respective dates or for the respective periods to which they apply, and such statements and related schedules and notes have been prepared in accordance with International Financial Reporting Standards consistently applied throughout the periods involved, except as may be disclosed therein;
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(o) Neither the Bank nor any of its subsidiaries or affiliates, nor any director, officer, or employee, nor, to the Bank’s knowledge, any agent or representative of the Bank or of any of its subsidiaries or affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) to influence official action or secure an improper advantage; and the Bank and its subsidiaries and affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with such laws and with the representation and warranty contained herein;
(p) The operations of the Bank and its subsidiaries are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including, to the extent applicable, those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the Bank and its subsidiaries conduct business, the rules and regulations thereunder and any applicable related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Bank or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the executive officers of the Bank, threatened; and
(q) (i) The Bank represents that neither the Bank nor any of its subsidiaries (collectively, the “Entity”) or, to the knowledge of the Entity, any director, officer, employee, agent, affiliate or representative of the Entity, is an individual or entity (“Person”) that is, or is majority owned or controlled by a Person that is:
(A) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, the Canadian Government, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), nor
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, Libya, North Korea, Sudan, Syria and Venezuela).
(ii) The Bank represents and covenants that it will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person in any manner that, to the knowledge of the Entity, will result in a violation of applicable Sanctions in the jurisdiction in which such activity is carried out by such Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
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2. (a) On the basis of the representations and warranties, and subject to the terms and conditions, herein set forth, each of the Agents hereby severally and not jointly agrees to use its reasonable efforts to solicit and receive offers to purchase the Securities from the Bank upon the terms and conditions set forth herein, in the Prospectus as amended or supplemented from time to time and in any applicable Term Sheet.
The Bank reserves the right, in its sole discretion, to instruct the Agents to suspend at any time, for any period of time or permanently, the solicitation of offers to purchase the Securities. Upon receipt of instructions from the Bank, the Agents will forthwith suspend solicitation of offers to purchase Securities from the Bank until such time as the Bank has advised the Agents that such solicitation may be resumed. During such time as the solicitation of offers to purchase the Securities shall be suspended, the Bank shall not be required to comply with the provisions of Sections 4(e), 4(f) and 4(g).
The Bank agrees to pay each Agent a commission, at the Time of Delivery (as hereinafter defined) of each sale of Securities by the Bank as a result of a solicitation made by such Agent, in an amount to be agreed to by the Bank and such Agent at the time of solicitation, it being understood and agreed that the commissions may not be the same for each Agent.
As Agents, you are authorized to solicit offers to purchase the Securities only in accordance with applicable securities laws and in authorized denominations as set forth in the Prospectus at a purchase price equal to 100% of their principal amount unless otherwise indicated on the applicable Term Sheet, if any, and Pricing Supplement. Each Agent shall communicate to the Bank, orally or in writing, each offer to purchase Securities other than those rejected by such Agent. The Bank shall have the sole right to accept offers to purchase Securities and may reject any proposed purchase of Securities as a whole or in part. The Agents shall have the right, in their discretion reasonably exercised, to reject any offer to purchase Securities, as a whole or in part, and any such rejection by the Agents shall not be deemed a breach of their agreements contained herein.
The obligation of any Agent, as agent of the Bank, to solicit offers to purchase the Securities shall be subject, in such Agent’s reasonable discretion, to the condition that the Bank shall have performed, or be in compliance with, in all material respects, its agreements in Sections 4(e), (f), and (g) and shall have performed, in all material respects, all of its other obligations hereunder theretofore in each case to be performed.
(b) Unless the Bank and the Agents otherwise agree, each sale of Securities to any Agent as principal shall be made in accordance with the terms of this Agreement and, unless the Bank and such Agent shall otherwise agree, a Terms Agreement which will provide for the sale of such Securities to, and the purchase thereof by, such Agent. A Terms Agreement may also specify certain provisions relating to the reoffering of such Securities by such Agent. Unless the Bank and such Agent shall otherwise agree, the commitment of any Agent to purchase Securities pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties, and subject to the terms and conditions, herein set forth. Each Terms Agreement shall include a specification of the principal amount of Securities to be purchased by any Agent pursuant thereto, the price to be paid to the Bank for such Securities, the currency in which such Securities are to be denominated, any provisions relating to rights of, and default by, underwriters acting together with such Agent in the reoffering of the Securities, and the time (each, a “Time of Delivery”) and place of delivery of and payment for such Securities. Such Terms Agreement shall also specify any requirements for officer’s certificates, opinions of counsel and accountants’ letters pursuant to Section 4 hereof.
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(c) Procedural details relating to the issue and delivery of Securities, the solicitation of offers to purchase, and purchases by any Agent as principal of, Securities, and the payment in each case therefor, are set forth in the Administrative Procedures attached hereto as Attachment A (the “Procedures”). Each Agent and the Bank agree to perform the respective duties and obligations specifically provided to be performed by each of them in the Procedures as it may be amended from time to time by written agreement between the Agents and the Bank.
(d) Each Agent severally agrees, with respect to any Security denominated in a currency other than U.S. dollars, as agent, directly or indirectly, not to solicit offers to purchase, and as a principal under any Terms Agreement or otherwise, directly or indirectly, not to offer, sell or deliver, such Security in, or to residents of, the country issuing such currency (or if such Security is denominated in euros, not to residents of the member states of the European Monetary Union; or if such Security is denominated in a composite currency, not to residents in any country issuing a currency comprising a portion of such composite currency), except, in each case, as permitted by applicable law.
(e) Each Agent severally represents and agrees with the Bank that it will promptly advise the Bank upon the completion of the distribution of any offering of Securities.
(f) Each Agent severally represents and agrees with the Bank that it will comply with or observe any restrictions or limitations set forth in the Prospectus as amended or supplemented on persons to whom, or the jurisdictions or manner in which, the Securities may be offered, sold, resold or delivered.
3. Any documents required to be delivered pursuant to Section 7 hereof shall be made available to the Agents and their counsel at the office of the Bank’s counsel, Sullivan & Cromwell LLP, 125 Broad Street, New York, New York 10004, and copies of such documents shall be made available to the Agents and their counsel electronically.
4. The Bank covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement (other than an amendment or supplement as a result of the Bank’s filing of a report under the Exchange Act) to the Registration Statement, the Pricing Disclosure Package or the Prospectus after the date of any Terms Agreement and prior to the related Time of Delivery which shall be disapproved by any Agent party to such Terms Agreement promptly after reasonable notice thereof; (ii) to prepare, with respect to a particular offering of Securities to be sold by the Bank through or to such Agent pursuant to this Agreement, a Pricing Supplement and, if applicable, a Term Sheet (as hereinafter defined) with respect to such Securities in a form previously approved by such Agent and to file such Pricing Supplement or Term Sheet pursuant to Rule 424(b) or Rule 433(d), as applicable, under the Act within the time required by such rule; (iii) to make no amendment or supplement to the Registration Statement, the Pricing Disclosure Package or the Prospectus other than any Term Sheet or Pricing Supplement (and other than an amendment or supplement as a result of filings by the Bank under the Exchange Act and other than the filing of prospectuses, preliminary prospectuses, preliminary prospectus supplements, free-writing prospectuses and other documents pursuant to Rule 424(b) or Rule 433 under the Act relating to securities other than the Securities purchased through or by such Agent), at any other time prior to having afforded each Agent a reasonable opportunity to review it; (iv) if requested by such Agent prior to the Applicable Time, to prepare an Issuer Free Writing Prospectus that is a final term sheet relating to such Securities in the form set forth in Annex II hereto (each, a “Term Sheet”), and to file such term sheet pursuant to Rule 433(d) under the Act within the time required by such rule; and (v) to file promptly all other material required to be filed by the Bank with the Commission pursuant to Rule 433(d) under the Act; to file promptly all reports and any definitive proxy or information statements required to be filed by the Bank with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities, and during such same period to advise such Agent, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus or to the Pricing Disclosure Package has been filed with, or transmitted for filing to, the Commission (other than an amendment or supplement as a result of filings by the Bank under the Exchange Act and other than the filing of prospectuses, preliminary prospectuses, preliminary prospectus supplements, free-writing prospectuses and other documents pursuant to Rule 424(b) or Rule 433 under the Act relating to securities other than the Securities purchased through or by such Agent), of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any prospectus relating to the Securities, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement, Pricing Disclosure Package or Prospectus or for additional information; and, in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any such prospectus or suspending any such qualification, to use promptly its commercially reasonable efforts to obtain its withdrawal;
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(b) To furnish such Agent with copies of the Registration Statement and each amendment thereto, and with copies of the Prospectus as each time amended or supplemented, other than any Pricing Supplement or Term Sheet (except as provided in the Procedures) or amendment or supplement relating solely to an offering of securities other than the Securities, in the form in which it is filed with, or transmitted for filing to, the Commission pursuant to Rule 424 under the Act, both in such quantities as such Agent may reasonably request from time to time; and, if the delivery of a prospectus is required at any time within 90 days after sale of the Securities (including Securities purchased from the Bank by such Agent as principal) and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Act, the Exchange Act or the Trust Indenture Act, to notify such Agent as promptly as practicable and request such Agent to suspend solicitation of offers to purchase Securities from the Bank and, if so notified, such Agent shall forthwith cease such solicitations; and if the Bank shall decide to amend or supplement the Registration Statement or the Prospectus as then amended or supplemented, to so advise such Agent promptly by telephone (with confirmation in writing) and to prepare and cause to be filed promptly with the Commission an amendment or supplement to the Registration Statement or the Prospectus as then amended or supplemented that will correct such statement or omission or effect such compliance; provided, however, that if during such same period such Agent continues to own Securities purchased from the Bank by such Agent as principal which such Agent proposes to sell, upon the reasonable request of such Agent, the Bank shall promptly prepare and file with the Commission such an amendment or supplement, the expense of such preparation and filing to be borne by the Bank if such amendment or supplement occurs within 90 days of the date of the relevant Pricing Supplement or Term Sheet and if after such 90-day period, by such Agent;
(c) That, from the date of any Terms Agreement with such Agent and continuing to and including the earlier of (i) the termination of the trading restrictions for the Securities purchased thereunder, as notified to the Bank by such Agent and (ii) the related Time of Delivery, the Bank will not, without the prior consent (such consent not to be unreasonably withheld or delayed) of such Agent, offer, sell, contract to sell or otherwise dispose of any debt securities of the Bank that (i) mature more than one year after such Time of Delivery, (ii) have the same maturity, and (iii) are otherwise substantially similar to the Securities. The restriction imposed by this Section 4(c) shall not apply to (i) any issue of debt securities denominated in a currency other than U.S. dollars, (ii) any securities (including without limitation certificates of deposit) issued by the Bank’s Chicago or New York branches, (iii) any issue of debt securities of which at least 90% (based on gross offering proceeds) is offered and sold outside the United States, (iv) any debt securities of the Bank that are guaranteed by BMO Covered Bond Guarantor Limited Partnership, or (v) guarantees by the Bank of debt securities of its subsidiaries;
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(d) That each acceptance by the Bank of an offer to purchase Securities hereunder, and each sale of Securities to such Agent pursuant to a Terms Agreement, shall be deemed to be an affirmation to such Agent that the representations and warranties of the Bank contained in or made pursuant to this Agreement are true and correct as of the date of such acceptance or of such Terms Agreement as though made at and as of such time (except that such statements shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented at such time);
(e) That each time the Registration Statement or the Prospectus shall be amended or supplemented as a result of the filing by the Bank of its annual report pursuant to Section 13(a) or 15(d) of the Exchange Act, and each time, if so indicated in the applicable Terms Agreement, the Bank sells Securities to such Agent as principal, the Bank shall furnish or cause to be furnished (as promptly as reasonably practicable in the case of any such amendment or supplement) to such Agent, upon its request, a certificate of an officer of the Bank, in his or her capacity as an officer of the Bank, dated the date of such supplement, amendment or Time of Delivery related to such sale, in form satisfactory to such Agent in its reasonable judgment to the effect that the statements contained in the certificate referred to in Section 7(f) hereof which was last furnished to such Agent are true and correct, at such date, as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to such time) or, in lieu of such certificate, certificates of the same tenor as the certificates referred to in said Section 7(f) but modified to relate to the Registration Statement and the Prospectus as amended and supplemented to such date;
(f) That each time the Registration Statement or the Prospectus shall be amended or supplemented as a result of the filing by the Bank of its annual report pursuant to Section 13(a) or 15(d) of the Exchange Act, and each time, if so indicated in the applicable Terms Agreement, the Bank sells Securities to such Agent as principal, the Bank shall furnish or cause to be furnished (as promptly as reasonably practicable in the case of any such amendment or supplement) to such Agent, upon its request, a written opinion and letter of Sullivan & Cromwell LLP, United States counsel for the Bank, and a written opinion of Osler, Hoskin & Harcourt LLP, Canadian counsel for the Bank, or, in either case, other counsel satisfactory to such Agent in its reasonable judgment, dated the date of such amendment, supplement or Time of Delivery relating to such sale, each in form satisfactory to such Agent in its reasonable judgment, to the effect that such Agent may rely on the opinion and letter referred to in Section 7(c) or the opinion referred to in Section 7(d) hereof, as the case may be, which was last furnished to such Agent to the same extent as though it were dated the date of such letter authorizing reliance (except that statements in such last opinion or letter shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to such date) or, in lieu of either such opinion, an opinion and letter of the same tenor as the opinion and letter referred to in Section 7(c) or an opinion of the same tenor as the opinion referred to in Section 7(d) hereof, as the case may be, but modified to relate to the Registration Statement and the Prospectus as amended and supplemented to such date;
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(g) That each time the Registration Statement or the Prospectus shall be amended or supplemented as a result of the filing by the Bank of its annual report pursuant to Section 13(a) or 15(d) of the Exchange Act to set forth financial information included in or derived from the Bank’s consolidated financial statements, and each time, if so indicated in the applicable Terms Agreement, the Bank sells Securities to such Agent as principal, the Bank shall cause its independent registered public accounting firm to furnish (as promptly as reasonably practicable in the case of any such amendment or supplement) to such Agent, upon its request, a letter, dated a date which is as soon as reasonably practicable after the date of such amendment or supplement, or a letter, dated the Time of Delivery relating to such sale, in either case in form satisfactory to such Agent in its reasonable judgment, of the same tenor as the letter referred to in Section 7(e) hereof but modified to relate to the Registration Statement and the Prospectus as amended or supplemented to the date of such amendment or supplement or Terms Agreement and Time of Delivery, as the case may be, with such changes as may be necessary to reflect changes in the financial statements and other information derived from the accounting records of the Bank, to the extent such financial statements and other information are available as of a date not more than five business days prior to the date of such letter; and
(h) To consider any request by the Agents to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Agents shall reasonably request.
5. (a) The Bank and each Agent agree that the Agents may prepare and use one or more preliminary or final term sheets relating to the Securities containing customary information; provided that such information has been approved by the Bank in writing before the first communication containing such information is used;
(b) Each Agent severally represents that it has not and will not use, authorize use of, refer to, or participate in the planning for use of, any written communication that constitutes an offer to sell or the solicitation of an offer to buy the Securities other than (A) any written communication permitted under subparagraph (a) above, (B) any Term Sheet or (C) any written communication prepared by such Agent and approved by the Bank in advance in writing;
(c) Except in the case of Securities sold directly by the Bank, with respect to any particular issuance of Securities, the Bank represents to the Agent purchasing or soliciting the purchase of such Securities that it has not and will not use, authorize use of, refer to, or participate in the planning for use of, any written communication that constitutes an offer to sell or the solicitation of an offer to buy such Securities other than (A) any written communication permitted under subparagraph (a) above, (B) any Term Sheet or (C) any written communication approved by such Agent in advance in writing;
(d) The Bank represents and agrees that it has complied and, in connection with any issuance of securities, will comply with the requirements of Rule 433 under the Act applicable to any Issuer Free Writing Prospectus related to such issuance, including timely filing with the Commission where required, legending and record keeping, and neither the Bank nor any Agent, without the written consent of the Bank or each relevant Agent, as the case may be, will take any action that would result in the Bank or any Agent, as the case may be, being required to file with the Commission pursuant to Rule 433(d) under the Act a Free Writing Prospectus that would not otherwise have been required to be filed thereunder;
(e) With respect to any issue of Securities, the Bank agrees that if at any time following the relevant Applicable Time until and including the related Time of Delivery any event occurred or occurs as a result of which an Issuer Free Writing Prospectus included in the relevant Pricing Disclosure Package would conflict (except to the extent that such conflict is a modification of or supersedes previous information) with the information in the Registration Statement, the Prospectus, the Prospectus as amended or supplemented or the Pricing Supplement or, taken together with the relevant Pricing Disclosure Package, would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (i) the Bank will give prompt notice thereof to the relevant Agents and, (ii) if requested by such Agents, will prepare and furnish without charge to each Agent an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission; provided, however, that this Section 5(e) shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished in writing to the Bank by the Agent or Agents making such request expressly for use therein;
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(f) Each Agent severally covenants and agrees with the Bank that each acceptance by such Agent of an offer to purchase Securities hereunder, and each sale of Securities from the Bank to such Agent pursuant to a Terms Agreement, shall be deemed to be an affirmation to the Bank that the representations and warranties of such Agent contained in or made pursuant to this Agreement are true and correct in all material respects as of the date of such acceptance or of such Terms Agreement as though made at and as of such time; and
(g) Each Agent severally represents and agrees that:
(i) it will only sell Securities in accordance with the terms and conditions set forth in this Agreement, any applicable Terms Agreement and the Pricing Disclosure Package;
(ii) it will comply with all applicable laws and regulations in force in any jurisdiction in which it purchases, offers or sells Securities or possesses or distributes the Prospectus as amended or supplemented, the Prospectus Supplement, any Pricing Supplement, any Term Sheet or any Issuer Free Writing Prospectus and will obtain any consent, approval or permission required by it for the purchase, offer or sale by it of Securities under the laws and regulations in force in any jurisdiction to which it is subject or in which it makes such purchases, offers or sales; and
(iii) it will not offer or sell any Securities purchased by it, directly or indirectly, in Canada or to any resident of Canada without the consent of the Bank, and further agrees that it will include a comparable provision in any sub-underwriting, banking group or selling group agreement or similar arrangement with respect to any Securities that may be entered into by such Agent.
6. The Bank covenants and agrees with each Agent that the Bank will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Securities under the Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, any Preliminary Prospectus, the Prospectus, any Term Sheet, any Issuer Free Writing Prospectus and any Pricing Supplements and all other amendments and supplements thereto and the mailing and delivering of copies thereof to such Agent; (ii) the cost of printing, word-processing or reproducing this Agreement, the Registration Statement, any Preliminary Prospectus, the Prospectus, the Pricing Disclosure Package, any Issuer Free Writing Prospectus, any Terms Sheet and any Pricing Supplements, any Indenture, any Blue Sky and Legal Investment Memoranda and any other documents in connection with the offering, purchase, sale and delivery of the Securities; (iii) all expenses in connection with the qualification of the Securities for offering and sale under state securities laws as provided in Section 4(h) hereof, including fees and disbursements of the Bank’s counsel and reasonable fees and disbursements of Agent’s counsel in connection with such qualification and in connection with the Blue Sky and legal investment surveys and all filing fees incurred in connection with the review and qualification of the offering of the Securities by the Financial Industry Regulatory Authority; (iv) any fees charged by security rating services for rating the Securities; (v) the cost of preparing the Securities; (vi) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities; (vii) any advertising expenses connected with the solicitation of offers to purchase and the sale of Securities so long as such advertising expenses have been pre-approved by the Bank; (viii) the costs and expenses of the Bank relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Bank, travel and lodging expenses of the representatives and officers of the Bank and any such consultants, and the cost of any aircraft chartered in connection with the road show; (ix) all reasonable costs and expenses related to the transfer and delivery of the Securities to the Agents, including any transfer or other similar taxes payable thereon; and (x) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section. Each Agent shall pay all other fees and expenses it incurs.
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7. The obligation of any Agent hereunder, as agent of the Bank, shall be subject, in such Agent’s reasonable discretion, to the condition that all representations and warranties and other statements of the Bank herein are true and correct, at and as of the date of this Agreement and to the condition that the Bank shall have performed, in all material respects, all of its obligations hereunder theretofore in each case to be performed and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission or, to the knowledge of the executive officers of the Bank, shall be contemplated by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of such Agent;
(b) [reserved];
(c) Such Agent shall have received, upon its request, an opinion and letter of Sullivan & Cromwell LLP, United States counsel for the Bank, or other counsel satisfactory to such Agent in its reasonable judgment, to the effect set forth in Annex III hereto;
(d) Such Agent shall have received, upon its request, an opinion of Osler, Hoskin & Harcourt LLP, Canadian counsel for the Bank, or other counsel satisfactory to such Agent in its reasonable judgment, to the effect set forth in Annex IV hereto;
(e) If requested by such Agent, the independent registered public accounting firm who have audited the financial statements of the Bank and its subsidiaries included or incorporated by reference in the Registration Statement and the Prospectus shall have furnished to such Agent a letter in form and substance satisfactory to such Agent, to the effect set forth in Annex V hereto; and
(f) The Bank shall have furnished or caused to be furnished to such Agent a certificate of any Vice Chairman, any Executive or Senior Vice President, any Executive Managing Director or any Vice President or any principal financial or accounting officer of the Bank, dated the date of this Agreement, in which such officer, in his or her capacity as such, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the Bank in this Agreement are true and correct, as of such applicable date, that the Bank has complied with all agreements and satisfied all conditions on its part to be performed or satisfied, in all material respects, at or prior to such applicable date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, and that, since the respective dates as of which information is given in the Registration Statement and the Prospectus, as amended or supplemented, there has not been any Material Adverse Change, otherwise than as set forth or contemplated in the Registration Statement and the Prospectus, as amended or supplemented.
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8. (a) The Bank will indemnify and hold harmless each Agent and each person, if any, who controls any of the Agents within the meaning of the Act, against any losses (other than loss of profits), claims, damages or liabilities, joint or several, to which such Agent or such controlling person may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any preliminary prospectus, any preliminary prospectus supplement, the Registration Statement, the Pricing Disclosure Package or the Prospectus, each as amended or supplemented, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse such Agent and such controlling person for any legal or other expenses reasonably incurred by it in connection with investigating or defending any such action or claim, as incurred; provided, however, that the Bank will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus, any preliminary prospectus supplement, the Registration Statement, the Pricing Disclosure Package or the Prospectus, each as amended or supplemented, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Bank by such Agent expressly for use therein.
(b) Each Agent, severally and not jointly, will indemnify and hold harmless the Bank and each person, if any, who controls the Bank within the meaning of the Act, against any losses, claims, damages or liabilities to which the Bank or such controlling person may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any preliminary prospectus, any preliminary prospectus supplement, the Registration Statement, the Pricing Disclosure Package or the Prospectus, each as amended or supplemented, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any preliminary prospectus, any preliminary prospectus supplement, the Registration Statement, the Pricing Disclosure Package or the Prospectus, each as amended or supplemented, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Bank by such Agent expressly for use therein; and will reimburse the Bank for any legal or other expenses reasonably incurred by the Bank or such controlling person in connection with investigating or defending any such action or claim, as incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; provided, however, that the omission so to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection. In case any such action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the
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indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would, in the judgment of counsel, be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties. Such firm shall be designated in writing by the Agents in the case of parties indemnified pursuant to Section 8(a) and by the Bank in the case of parties indemnified pursuant to Section 8(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party (which such consent shall not be unreasonably conditioned, delayed or withheld), effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is an actual or potential party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes (x) no admission of culpability of such indemnified party and (y) an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses (other than loss of profits), claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Bank on the one hand and each Agent on the other from the offering of the Securities to which such loss, claim, damage or liability (or action in respect thereof) relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Bank on the one hand and each Agent on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Bank on the one hand and each Agent on the other shall be deemed to be in the same proportion as the total net proceeds from the sale of Securities (before deducting expenses) received by the Bank bear to the total commissions or discounts received by such Agent in respect thereof. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading relates to information supplied by the Bank on the one hand or by any Agent on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Bank and each Agent agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), an Agent shall not be required to contribute any amount in excess of the amount by which the total price at which the Securities purchased by or through it were sold exceeds the amount of any damages which such Agent has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) or found to be grossly negligent by a court of competent jurisdiction shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
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(e) The obligations of the Bank under this Section 8 shall be in addition to any liability which the Bank may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Agent within the meaning of the Act; and the obligations of each Agent under this Section 8 shall be in addition to any liability which such Agent may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Bank and to each person, if any, who controls the Bank within the meaning of the Act.
9. Subject to Section 15, in soliciting offers by others to purchase Securities from the Bank, each Agent is acting solely as agent for the Bank, and not as principal (other than in respect of any purchase by an Agent pursuant to a Terms Agreement). Each Agent will make reasonable efforts to assist the Bank in obtaining performance by each purchaser whose offer to purchase Securities from the Bank has been accepted by the Bank, but such Agent shall not have any liability to the Bank in the event such purchase for any reason is not consummated. If the Bank shall default on its obligation to deliver Securities to a purchaser whose offer it has accepted, the Bank shall indemnify and hold each Agent harmless against any loss (other than loss of profits), claim or damage arising from or as a result of such default by the Bank.
10. The respective indemnities, agreements, representations, warranties, and other statements by any Agent and the Bank or its officers set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation or statement as to the results thereof made by or on behalf of any Agent or the Bank or any of its officers or directors or any controlling person, and will survive each delivery of and payment for any of the Securities.
11. (a) The provisions of this Agreement relating to the solicitation of offers to purchase the Securities may be suspended or terminated at any time by the Bank as to any Agent or by any Agent as to such Agent upon the giving of written notice of such suspension or termination to such Agent or the Bank, as the case may be. In the event of any such suspension or termination, with respect to any Agent, this Agreement shall remain in full force and effect with respect to any Agent as to which such suspension or termination has not occurred and no party shall have any liability to the other party hereto, except as provided in the third paragraph of Section 2(a), Section 6, Section 8, Section 9 and Section 10 and except that, if at the time of such suspension or termination, an offer for the purchase of Securities shall have been accepted by the Bank but the delivery of the Securities relating thereto to the purchaser or his agent shall not yet have occurred, the Bank shall have the obligations provided in subsections (e), (f) and (g) of Section 4.
(b) The Bank, in its sole discretion, may appoint one or more additional parties to act as Agents hereunder from time to time. Any such appointment shall be made in a writing signed by the Bank and the party so appointed. Such appointment shall become effective in accordance with its terms after the execution and delivery of such writing by the Bank and such other party. When such appointment is effective, such other party shall be deemed to be one of the Agents referred to in, and to have the rights and obligations of an Agent under, this Agreement, subject to the terms and conditions of such appointment.
(c) The Bank, in its sole discretion, may increase the aggregate initial offering price of the Securities from time to time without consent of, or notice to, any Agent.
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(d) The Bank and any Agent may amend, eliminate or otherwise change any provision of this Agreement with respect to such Agent without consent of, or notice to, any other Agent. Any such amendment, elimination or change shall be made in a writing signed by the Bank and each Agent that is a party to such amendment, elimination or change. In the event of such amendment, elimination or change, this Agreement shall remain in full force and effect with respect to any Agent that is not a party to such amendment, elimination or change (without giving effect to such amendment, elimination or change with respect to such Agent) unless suspended or terminated with respect to such Agent pursuant to clause (a) of this Section 11.
12. The following terms shall apply to any Terms Agreement if provided for therein:
(a) If any Agent shall default in its obligation to purchase the Securities which it has agreed to purchase pursuant to such Terms Agreement, the representatives, if any, named in such Terms Agreement may in their discretion arrange for the representatives or another party or parties to purchase such Securities on the terms provided by such Terms Agreement. If within thirty-six hours after such default by any Agent the representatives do not arrange for the purchase of such Securities, then the Bank shall be entitled to a further period of thirty-six hours within which to procure another party or parties satisfactory to the representatives to purchase such Securities on such terms.
(b) In the event that, within the respective prescribed periods, the representatives notify the Bank that they have so arranged for the purchase of such Securities, or the Bank notifies the representatives that it has so arranged for the purchase of such Securities, the representatives or the Bank shall have the right to postpone the Time of Delivery for a period of not more than seven calendar days, in order to effect whatever changes may thereby be made necessary in the Registration Statement, the Pricing Disclosure Package or the Prospectus as amended or supplemented, or in any other documents or arrangements, and the Bank agrees to file promptly any amendments or supplements to the Registration Statement, the Pricing Disclosure Package or the Prospectus which in the representatives’ reasonable opinion may thereby be made necessary. The term “Agent” as used with respect to such Terms Agreement shall include any person substituted under this Section 12 (if applicable) with like effect as if such person had originally been a party to such Terms Agreement.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Agent or Agents by the representatives and the Bank as provided in subsection (a) above, the aggregate principal amount of such Securities which remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities covered by such Terms Agreement, then the Bank shall have the right to require each non-defaulting Agent which is a party to that Terms Agreement to purchase the principal amount of Securities which such Agent agreed to purchase pursuant to such Terms Agreement and, in addition, to require each non-defaulting Agent which is a party to that Terms Agreement to purchase its pro rata share (based on the principal amount of Securities which such Agent agreed to purchase pursuant to such Terms Agreement) of the Securities of such defaulting Agent or Agents for which such arrangements have not been made; provided, however, that nothing in this Section 12(c) shall relieve a defaulting Agent from liability for its default.
(d) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Agent or Agents by the Agents and the Bank as provided in subsection (a) above, the aggregate principal amount of Securities pursuant to such Terms Agreement which remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities covered by such Terms Agreement, or if the Bank shall not exercise the right described in subsection (c) above to require non-defaulting Agents to purchase Securities of a defaulting Agent or Agents, then such Terms Agreement shall thereupon terminate, without liability on the part of any non-defaulting Agent or the Bank, except for the expenses to be borne by the Bank and the Agents as provided in Section 6 hereof incorporated therein by reference and the indemnity and contribution agreement in Section 8 hereof incorporated therein by reference; provided, however, that nothing in this Section 12(d) shall relieve a defaulting Agent from liability for its default.
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13. Except as otherwise specifically provided herein or in the Procedures, all statements, requests, notices and advice hereunder shall be in writing, or by telephone if promptly confirmed in writing, and if to an Agent, shall be sufficient in all respects when delivered or sent by facsimile transmission or registered mail as set forth in Annex VI hereto under such Agent’s name, and if to the Bank shall be sufficient in all respects when delivered or sent by registered mail to Bank of Montreal, 100 King Street West, 1 First Canadian Place, 10th Floor, Toronto, Ontario, Canada M5X 1A1, Facsimile Transmission: (416) 867-7193, Attention: Treasurer, with a copy to Osler, Hoskin & Harcourt LLP, 100 King Street West, Suite 6600, Toronto, Ontario, Canada M5X 1B8, Facsimile Transmission: (416) 862-6666, Attention: Rick Fullerton.
14. This Agreement and any Terms Agreement shall be binding upon, and inure solely to the benefit of, each Agent (or the applicable Agent, in the case of a Terms Agreement) and the Bank, and to the extent provided in Section 8 and Section 10 hereof, the officers and directors of the Bank and any person who controls any Agent or the Bank and an affiliate of an Agent, and their respective personal representatives, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement or any Terms Agreement. No purchaser of any of the Securities through or from any Agent hereunder shall be deemed a successor or assign by reason of such purchase.
15. The Bank acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement and any Terms Agreement is an arm’s-length commercial transaction between the Bank, on the one hand, and the Agents, on the other, (ii) in connection therewith and with the process leading to such transaction each Agent is acting solely as a principal and not the agent or fiduciary of the Bank, (iii) no Agent has assumed an advisory or fiduciary responsibility in favor of the Bank with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Agent has advised or is currently advising the Bank on other matters) or any other obligation to the Bank except the obligations expressly set forth in this Agreement, (iv) the Agent may have interests that differ from the interests of the Bank and (v) the Bank has consulted its own legal and financial advisors to the extent it deemed appropriate. The Bank agrees that it will not claim that the Agent, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Bank, in connection with such transaction or the process leading thereto.
16. This Agreement and any Terms Agreement supersede all prior agreements and understandings (whether written or oral) between the Bank and the Agents, or any of them, with respect to the subject matter hereof.
17. This Agreement and any Terms Agreement shall be governed by and construed in accordance with the laws of the State of New York.
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18. The Bank irrevocably (i) agrees that any legal suit, action or proceeding against the Bank brought by any Agent or by any person who controls any Agent arising out of or based upon this Agreement or any Terms Agreement may be instituted in any state or federal court in The City of New York (a “New York Court”), (ii) waives, to the fullest extent it may effectively do so, any objection that it may now or hereafter have to the laying of venue of any such proceeding, and (iii) submits to the jurisdiction of such courts in any such suit, action or proceeding. The Bank irrevocably waives any immunity to jurisdiction to which it may otherwise be entitled or become entitled (including immunity to pre-judgment attachment, post-judgment attachment and execution) in any legal suit, action or proceeding against it arising out of or based on this Agreement or any Terms Agreement or the transactions contemplated hereby and thereby that is instituted in any New York Court. The Bank has appointed BMO Capital Markets Corp., 3 Times Square, 28th Floor, New York, New York 10036 (Attention: Legal Department), as its authorized agent (the “Authorized Agent”) upon which process may be served in any such action arising out of or based on this Agreement or any Terms Agreement that may be instituted in any New York Court by any Agent or by any person who controls any Agent, expressly consents to the jurisdiction of any such court in respect of any such action, and waives any other requirements of or objections to personal jurisdiction with respect thereto. The Bank represents and warrants that the Authorized Agent has agreed to act as such agent for service of process and agrees to take any and all action, including the filing of any and all documents and instruments, which may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent and written notice of such service to the Bank shall be deemed, in every respect, effective service of process upon the Bank. Notwithstanding the foregoing, neither the Bank’s appointment of the Authorized Agent as its agent for service of process nor its consent to the jurisdiction of any New York Court and waiver of any defenses or objections thereto provided in this Section 18 shall apply to any legal action, suit or proceeding arising out of or based upon United States federal securities laws.
19. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder into any currency other than United States dollars, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be the rate at which, in accordance with normal banking procedures, the relevant Agents could purchase United States dollars with such other currency in The City of New York on the business day preceding that on which final judgment is given. The obligation of the Bank with respect to any sum due from it to any Agent or any person controlling any Agent shall, notwithstanding any judgment in a currency other than United States dollars, not be discharged until the first business day following receipt by such Agent or controlling person of any sum in such other currency, and only to the extent that such Agent or controlling person may in accordance with normal banking procedures purchase United States dollars with such other currency. If the United States dollars so purchased are less than the sum originally due to such Agent or controlling person hereunder, the Bank agrees as a separate obligation and notwithstanding any such judgment, to indemnify such Agent or controlling person against such loss. If the United States dollars so purchased are greater than the sum originally due to such Agent or controlling person hereunder, such Agent or controlling person agrees to pay to the Bank an amount equal to the excess of the dollars so purchased over the sum originally due to such Agent or controlling person hereunder.
20. Time shall be of the essence in this Agreement and any Terms Agreement. As used herein, “business day” shall mean any day other than a day when the Commission’s office in Washington, D.C. is not open for business or banking institutions are authorized or obligated by law or executive order to close in The City of New York or Toronto, Ontario.
21. This Agreement and any Terms Agreement may be executed by any one or more of the parties hereto and thereto in any number of counterparts, each of which shall be deemed to be an original, but all of such respective counterparts shall together constitute one and the same instrument.
22. In accordance with the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Agents are required to obtain, verify and record information that identifies their respective clients, including the Bank, which information may include the name and address of their respective clients, as well as other information that will allow the Agents to properly identify their respective clients.
23. (a) In the event that any Agent that is a Covered Entity (as defined below) becomes subject to a proceeding under a U.S. Special Resolution Regime (as defined below), the transfer from such Agent of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
| -19- |
(b) In the event that any Agent is a Covered Entity or a BHC Act Affiliate (as defined below) of such Agent becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined below) under this Agreement that may be exercised against such Agent are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this Section 23:
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
| -20- |
If the foregoing is in accordance with your understanding, please sign and return to us five counterparts hereof, whereupon this letter and the acceptance by each of you thereof shall constitute a binding agreement between the Bank and each of you in accordance with its terms.
| Very truly yours, | |||
| BANK OF MONTREAL | |||
| By: | /s/ Caroline Dufaux | ||
| Name: | Caroline Dufaux | ||
| Title: | Head, Capital Management and Funding | ||
| Accepted in New York, New York | |||
|
|
|||
| BMO CAPITAL MARKETS CORP. | |||
| By: | /s/ Brad Rothbaum | ||
| Name: | Brad Rothbaum | ||
| Title: | Managing Director and Head, U.S. Global Markets | ||
[Signature Page to Distribution Agreement]
ANNEX I
Form of Terms Agreement
Bank of Montreal
US$[___]
Senior Medium-Term Notes, Series G
Terms Agreement
[Date]
[Name(s) and Address(es) of Agent(s)]
Ladies and Gentlemen:
Bank of Montreal (the “Bank”) confirms its agreement with BMO Capital Markets Corp. and [Name(s) of other Representative(s)], as representatives (the “Representatives”) of the several Agents listed in Schedule III hereto (collectively, the “Agents”), relating to the issuance and sale by the Bank, and the purchase by the Agents, of US$[___] aggregate principal amount of the securities specified in Schedule I hereto (the “Purchased Securities”), in the respective amounts set forth in Schedule III hereto, subject to the terms and conditions stated herein and in the Distribution Agreement, dated May 27, 2021 (the “Distribution Agreement”), among the Bank and the agent listed in Annex VI thereto. Each of the provisions of the Distribution Agreement other than Section 9 thereof is incorporated herein by reference in its entirety, and shall be deemed to be part of this Terms Agreement to the same extent as if such provisions had been set forth in full herein. Unless otherwise defined herein, all terms used herein have the meanings given to them in the Distribution Agreement. Nothing contained herein or in the Distribution Agreement shall make any party hereto an agent of the Bank or make such party subject to the provisions therein relating to the solicitation of offers to purchase Securities from the Bank, solely by virtue of its execution of this Terms Agreement. Each of the representations and warranties set forth in the Distribution Agreement shall be deemed to have been made at and as of the date of this Terms Agreement, except that each representation and warranty in Section 1 of the Distribution Agreement which makes reference to the Registration Statement, the Pricing Disclosure Package or the Prospectus shall be deemed to be a representation and warranty as of the date of the Distribution Agreement in relation to the Registration Statement, the Pricing Disclosure Package or the Prospectus (each as therein defined), and also a representation and warranty as of the date of this Terms Agreement and as of the Time of Delivery for the Purchased Securities, in each case, in relation to the Registration Statement, the Pricing Disclosure Package or the Prospectus as amended and supplemented in relation to the Purchased Securities.
An amendment to the Registration Statement, or a supplement to the Prospectus, or a Term Sheet, as the case may be, relating to the Purchased Securities, in the form heretofore delivered to you, is now proposed to be filed with the Commission.
| I-1 |
Subject to the terms and conditions set forth herein and in the Distribution Agreement incorporated herein by reference, the Bank agrees to issue and sell to the Agents and the Agents agree to purchase from the Bank the Purchased Securities, at the time and place, in the principal amount and at the purchase price set forth in Schedule I hereto. The obligation of any Agent to purchase Purchased Securities as principal pursuant to this Terms Agreement shall be subject, in the Representatives’ reasonable discretion, to the condition that each representation and warranty in Section 1 of the Distribution Agreement which makes reference to the Registration Statement, the Pricing Disclosure Package or the Prospectus is true and correct, as of the date of this Terms Agreement in relation to the Registration Statement, the Pricing Disclosure Package or the Prospectus as amended and supplemented in relation to the Purchased Securities and at the Time of Delivery for the Purchased Securities, and to the condition that the Bank shall have performed, in all material respects, all of its obligations under the Distribution Agreement theretofore in each case to be performed and to the following additional conditions:
At the Time of Delivery for the Purchased Securities, there shall not have been any Material Adverse Change, otherwise than as set forth or contemplated in the Pricing Disclosure Package, since the respective dates as of which information is given in the Registration Statement and the Prospectus, as amended or supplemented in relation to the Purchased Securities, the effect of which, in the reasonable judgment of the Representatives, is so material and adverse as to make it impracticable or inadvisable to proceed with the purchase and public offering of the Purchased Securities by the Agents, on the terms and in the manner contemplated in the Pricing Disclosure Package, as amended or supplemented.
The Representatives may terminate this Terms Agreement by notice given to the Bank, if after the execution and delivery of this Terms Agreement and prior to the Time of Delivery for the Purchased Securities: (i) there shall have occurred any suspension or material limitation in trading in securities generally on the New York Stock Exchange or the Toronto Stock Exchange if the effect of any such event, in the reasonable judgment of the Representatives, makes it impracticable or inadvisable to proceed with the purchase and public offering by the Agents of the Purchased Securities; (ii) a general moratorium on commercial banking activities in New York is declared by either Federal or New York State authorities or in Toronto is declared either by federal or provincial authorities; (iii) there shall have occurred any outbreak or escalation of hostilities or any calamity or crisis involving the United States or Canada or there shall have been any declaration by the United States or Canada of a national emergency or war, other than any such outbreak, escalation or declaration arising out of or relating to the United States’ war on terrorism that does not represent a significant departure from the conditions that exist on the date of this Terms Agreement; (iv) trading is suspended in the Bank’s securities on the New York Stock Exchange or the Toronto Stock Exchange; (v) there shall have occurred any downgrading, or the Bank shall have received any written notice of any intended downgrading, in the rating accorded the Bank’s debt by Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, S&P Global Ratings, a division of S&P Global Inc., Fitch Ratings, Inc., a division of Fitch Group, or DBRS Limited and DBRS, Inc., or any such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, the ratings accorded the Bank’s debt; or (vi) there shall have occurred any material disruption in securities settlement, payment or clearance services in the United States or Canada, if, in the case of clauses (iii) and (vi), the effect of such an event in the reasonable judgment of the Representatives, is to make it impracticable or inadvisable to proceed with the purchase and public offering of the Purchased Securities by the Agents, on the terms and in the manner contemplated in the Pricing Disclosure Package, as amended or supplemented.
[List any additional conditions].
This Terms Agreement is a Terms Agreement referred to in the Distribution Agreement and shall be governed by and construed in accordance with the law of the State of New York. Schedules I, II and III [and Annexes [_]] hereto are hereby incorporated by reference herein and form integral parts hereto.
| I-2 |
If the foregoing is in accordance with your understanding, please sign and return to us [___] counterparts hereof, and, upon acceptance hereof by you, this Terms Agreement and such acceptance hereof, including those provisions of the Distribution Agreement incorporated herein by reference, shall constitute a binding agreement between you and the Bank.
| Bank of Montreal | |||
| By: | |||
| Name: | |||
| Title: | |||
Accepted as of the date first above
written on behalf of themselves and as
representatives of the other Agents:
| BMO Capital markets corp. | |||
|
|
|||
| By: | |||
| Name: | |||
| Title: | |||
| [Name(s) of other Representative(s)] | |||
|
|
|||
| By: | |||
| Name: | |||
| Title: | |||
| I-3 |
Schedule I to Annex I
| Title of Purchased Securities: | [·] |
| Aggregate Principal Amount: | [US$·] [or units of other Specified Currency] |
| Price to Public: | [·%][, plus accrued interest, if any, from ______] |
| Applicable Time: | [time of day, month, day and year] |
| Purchase Price by the Agent[s]: | [·]% of the principal amount of the Purchased Securities[, plus accrued interest, if any, from ______] [and accrued amortization, if any, from ______ to ______] (representing a purchase price equal to the Price to Public, less a commission payable to the Agents of [·]% of the principal amount of the Purchased Securities) |
| Method of and Specified Funds for Payment of Purchase Price: |
[By wire transfer to a bank account specified by the Bank in immediately available funds] |
| Indenture: | Senior Indenture, dated as of January 25, 2010, between the Bank and Wells Fargo Bank, National Association, as trustee, as supplemented by the First Supplemental Indenture thereto, dated as of September 23, 2018, between the Bank and Wells Fargo Bank, National Association, as trustee, and the Second Supplemental Indenture thereto, dated as of May 27, 2021, among the Bank, The Bank of New York Mellon, as trustee with respect to the Senior Medium-Term Notes, Series G, and Wells Fargo Bank, National Association, and as the same may be amended and supplemented from time to time. |
| Time of Delivery: | [●] |
| Closing Location for Delivery of Purchased Securities: |
[●] |
| Maturity Date: | [●] |
| Interest Rate: | [%] |
| Interest Payment Dates: | [months and dates] |
| Regular Record Dates: | [months and dates] |
| [Interest Determination Dates:] | [●] |
| [Interest Reset Date:] | [●] |
| [Interest Period:] | [●] |
| I-4 |
| [_] | [●] |
| [Day Count:] | [●] |
| [Day Count Convention:] | [●] |
| [Calculation Agent:] | [BMO Capital Markets Corp.][●] |
| Documents to be Delivered: |
The following documents referred to in the Distribution Agreement shall be delivered as a condition to the Closing: [None] or [1. The officer’s certificate referred to in Section 4(e).] [2. The opinions of counsel to the Bank referred to in Section 4(f).] [3. The accountants’ letter referred to in Section 4(g).] |
| I-5 |
Schedule II to Annex I
(a) Issuer Free Writing Prospectuses:
[Term Sheet in the form set forth in Annex II of the Distribution Agreement, but only if the Bank is requested by the Agent(s) to prepare and file such term sheet pursuant to Section 4(a) of the Distribution Agreement.]
(b) Additional Information in Pricing Disclosure Package:
[List any free writing prospectus, other than the Term Sheet, that the Bank and the Agent(s) have expressly agreed in writing to include as part of the Pricing Disclosure Package.]
| I-6 |
Schedule III to Annex I
| Agent | Aggregate Principal Amount of Fixed Rate Notes | Aggregate Principal Amount of Floating Rate Notes | ||
| BMO Capital Markets Corp. | US$[●] | US$[●] | ||
| [Name(s) of other Agent(s)] | US$[●] | US$[●] | ||
| Total | US$[●] | US$[●] |
| I-7 |
ANNEX II
Form of Term Sheet
[To be modified as appropriate and completed prior to the Applicable Time]
Bank of Montreal
US$[●]
Senior Medium-Term Notes, Series G
consisting of
[●]
_____________________
Issuer: Bank of Montreal (the “Bank”)
Title of Purchased Securities:
Aggregate Principal Amount Offered:
Maturity Date:
Price to Public:
Underwriting Commission:
Net Proceeds to the Bank after Underwriting Commission and Before Expenses:
Interest Rate:
Interest Payment Dates:
Regular Record Dates:
[_:]
Redemption Provisions:
Canadian Bail-in Powers Acknowledgement:
Trade Date:
Settlement Date:
CUSIP:
Joint Book-Running Managers:
[Treasury Benchmark/Treasury Price and Yield/Spread to Treasury/Reoffer Yield/Minimum Denominations/Other Provisions:]
| II-1 |
_____________________
[The [Purchased Securities] are bail-inable debt securities (as defined in the prospectus) and subject to conversion in whole or in part – by means of a transaction or series of transactions and in one or more steps – into common shares of the Bank or any of its affiliates under subsection 39.2(2.3) of the Canada Deposit Insurance Corporation Act (Canada) (the “CDIC Act”) and to variation or extinguishment in consequence, and subject to the application of the laws of the Province of Ontario and the federal laws of Canada applicable therein in respect of the operation of the CDIC Act with respect to the [Purchased Securities].]
The Bank has filed a registration statement (File No. 333-237342) (including a [pricing supplement,] prospectus supplement and a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read those documents and the documents incorporated therein by reference that the Bank has filed with the SEC for more complete information about the Bank and this offering. You may get these documents for free by visiting EDGAR on the SEC website at www.sec.gov. Alternately, the Bank, any underwriter or any dealer participating in the offering will arrange to send you the [pricing supplement,] prospectus supplement and the prospectus if you request them by calling [●].
| 2 |
ANNEX III
Form of Opinion of Sullivan & Cromwell LLP
| III-1 |
Form of Letter of Sullivan & Cromwell LLP
| III-2 |
ANNEX IV
Form of Opinion of Osler, Hoskin & Harcourt LLP
| IV-1 |
ANNEX V
Form of Letter of Independent Registered Public Accounting Firm
| V-1 |
ANNEX VI
Agents
| Name: | Contact Information: |
| BMO Capital Markets Corp. |
3 Times Square, 28th Floor New York, NY 10036 Attn: Legal Department |
| VI-1 |
ATTACHMENT A
Bank of Montreal
Administrative Procedure
This Administrative Procedure relates to the Securities defined in the Distribution Agreement, dated May 27, 2021 (the “Distribution Agreement”), between Bank of Montreal (the “Bank”) and the Agents listed in Annex VI thereto (individually, an “Agent” and, collectively, the “Agents”), to which this Administrative Procedure is attached as Attachment A. Defined terms used herein and not defined herein shall have the meanings given such terms in the Distribution Agreement, the Prospectus as amended or supplemented or the Indenture.
The procedures to be followed with respect to the settlement of sales of Securities directly by the Bank to purchasers solicited by an Agent, as agent, are set forth below. The terms and settlement details related to a purchase of Securities by an Agent, as principal, from the Bank will be set forth in a Terms Agreement pursuant to the Distribution Agreement, unless the Bank and such Agent otherwise agree as provided in Section 2(b) of the Distribution Agreement, in which case the procedures to be followed in respect of the settlement of such sale will be as set forth below. An Agent, in relation to a purchase of a Security by a purchaser solicited by such Agent, is referred to herein as the “Selling Agent” and, in relation to a purchase of a Security by such Agent, as principal, other than pursuant to a Terms Agreement, as the “Purchasing Agent.”
The Bank will advise each Agent in writing of those persons with whom such Agent is to communicate regarding offers to purchase Securities and the related settlement details.
Each Security will be issued only in fully registered form and will be represented by either a global security (a “Global Security”) delivered to the Trustee, as agent for The Depository Trust Company (the “Depositary”), and recorded in the book-entry system maintained by the Depositary (a “Book-Entry Security”) or a certificate issued in definitive form (a “Certificated Security”) delivered to a person designated by an Agent, as set forth in the applicable Prospectus Supplement. An owner of a Book-Entry Security will not be entitled to receive a certificate representing such a Security, except as provided in the Indenture.
Book-Entry Securities will be issued in accordance with the Administrative Procedure set forth in Part I hereof, and Certificated Securities will be issued in accordance with the Administrative Procedure set forth in Part II hereof.
PART I: ADMINISTRATIVE PROCEDURE FOR BOOK-ENTRY SECURITIES
In connection with the qualification of the Book-Entry Securities for eligibility in the book-entry system maintained by the Depositary, the Trustee will perform the custodial, document control and administrative functions described below, in accordance with its respective obligations under a Letter of Representations from the Bank and the Trustee to the Depositary, dated January 25, 2010, and a Medium-Term Note Certificate Agreement between the Trustee and the Depositary, dated as of March 9, 1995 (the “Certificate Agreement”), and its obligations as a participant in the Depositary, including the Depositary’s Same-Day Funds Settlement System (“SDFS”).
Posting Rates by the Bank:
The Bank and the Agents will discuss from time to time the rates of interest per annum to be borne by and the maturity of Book-Entry Securities that may be sold as a result of the solicitation of offers by an Agent. The Bank may establish a fixed set of interest rates and maturities for an offering period. If the Bank decides to change already posted rates, it will promptly advise the Agents to suspend solicitation of offers until the new posted rates have been established with the Agents.
| A-1 |
Acceptance of Offers by the Bank:
Each Agent will promptly advise the Bank by telephone or other appropriate means of all reasonable offers to purchase Book-Entry Securities, other than those rejected by such Agent. Each Agent may, in its discretion reasonably exercised, reject any offer received by it in whole or in part. Each Agent also may make offers to the Bank to purchase Book-Entry Securities as a Purchasing Agent. The Bank will have the sole right to accept offers to purchase Book-Entry Securities and may reject any such offer in whole or in part.
The Bank will promptly notify the Selling Agent or Purchasing Agent, as the case may be, of its acceptance or rejection of an offer to purchase Book-Entry Securities. If the Bank accepts an offer to purchase Book-Entry Securities, it will confirm such acceptance in writing to the Selling Agent or Purchasing Agent, as the case may be.
Communication of Sale Information to the Bank by Agent and Settlement Procedures:
A. After the acceptance of an offer by the Bank, the Selling Agent or Purchasing Agent, as the case may be, will communicate promptly, but in no event later than the time set forth in the “Settlement Procedure Timetable” below, the following details of the terms of such offer (the “Sale Information”) to the Bank by telephone (confirmed in writing) or by facsimile transmission or other acceptable written means:
| (1) | Principal Amount of Book-Entry Securities to be purchased; |
| (2) | If a Fixed Rate Book-Entry Security, the interest rate and initial interest payment date; |
| (3) | Trade Date; |
| (4) | Settlement Date; |
| (5) | Maturity Date; |
| (6) | Specified Currency and, if the Specified Currency is other than U.S. dollars, the applicable Exchange Rate for such Specified Currency; |
| (7) | Issue Price; |
| (8) | Selling Agent’s commission or Purchasing Agent’s commission, as the case may be; |
| (9) | Net Proceeds to the Bank; |
| (10) | If a redeemable Book-Entry Security, such of the following as are applicable: |
| (i) | Redemption Commencement Date, |
| (ii) | Initial Redemption Price (% of par), and |
| (iii) | Amount (% of par) that the Redemption Price shall decline (but not below par) on each anniversary of the Redemption Commencement Date; |
| (11) | If a Floating Rate Book-Entry Security, such of the following as are applicable: |
| (i) | Interest Rate Basis, |
| (ii) | Index Maturity, |
| (iii) | Spread or Spread Multiplier, |
| (iv) | Maximum Rate, |
| (v) | Minimum Rate, |
| (vi) | Initial Interest Rate, |
| (vii) | Interest Reset Dates, |
| (viii) | Interest Calculation Dates, |
| (ix) | Interest Determination Dates, |
| A-2 |
| (x) | Interest Payment Dates, |
| (xi) | Regular Record Dates, and |
| (xii) | Calculation Agent; |
| (12) | Name, address and taxpayer identification number of the registered owner(s), if applicable; |
| (13) | Denomination of certificates to be delivered at settlement; |
| (14) | Book-Entry Security or Certificated Security; |
| (15) | Selling Agent or Purchasing Agent and the number of such Selling Agent or Purchasing Agent’s participant account maintained by the Depositary; and |
| (16) | CUSIP number of the Global Security representing such Book-Entry Security. |
B. After receiving the Sale Information from the Selling Agent or Purchasing Agent, as the case may be, the Bank will communicate such Sale Information to the Trustee by facsimile transmission or other acceptable written means. The Trustee may, if requested by an Agent, assign a CUSIP number to the Global Security from a list of CUSIP numbers previously delivered to the Trustee by the Bank representing such Book-Entry Security and then advise the Bank and the Selling Agent or Purchasing Agent, as the case may be, of such CUSIP number.
C. The Trustee will enter a pending deposit message through the Depositary’s Participant Terminal System, providing the following settlement information to the Depositary, and the Depositary shall forward such information to such Agent and Standard & Poor’s Ratings Group:
| (1) | The applicable Sale Information; |
| (2) | CUSIP number of the Global Security representing such Book-Entry Security; |
| (3) | Whether such Global Security will represent any other Book-Entry Security (to the extent known at such time); |
| (4) | Number of the participant account maintained by the Depositary on behalf of the Selling Agent or Purchasing Agent, as the case may be, which number will be supplied by such Selling Agent or Purchasing Agent; |
| (5) | The interest payment period; and |
| (6) | Initial Interest Payment Date for such Book-Entry Security, number of days by which such date succeeds the record date for the Depositary’s purposes (or, in the case of Floating Rate Securities which reset daily or weekly, the date five calendar days immediately preceding the applicable Interest Payment Date and, in the case of all other Book-Entry Securities, the Regular Record Date, as defined in the Security) and, if calculable at that time, the amount of interest payable on such Interest Payment Date. |
D. The Trustee will complete and authenticate the Global Security previously delivered by the Bank representing such Book-Entry Security.
E. The Depositary will credit such Book-Entry Security to the Trustee’s participant account at the Depositary.
F. The Trustee will enter an SDFS deliver order through the Depositary’s Participant Terminal System instructing the Depositary to (i) debit such Book-Entry Security to the Trustee’s participant account and credit such Book-Entry Security to such Agent’s participant account and (ii) debit such Agent’s settlement account and credit the Trustee’s settlement account for an amount equal to the price of such Book-Entry Security less such Agent’s commission or discount, as the case may be. The entry of such a delivery order shall constitute a representation and warranty by the Trustee to the Depositary that (a) the Global Security representing such Book-Entry Security has been authenticated and issued and (b) the Trustee is holding such Global Security pursuant to the Certificate Agreement.
| A-3 |
G. Such Agent will enter an SDFS deliver order through the Depositary’s Participant Terminal System instructing the Depositary (i) to debit such Book-Entry Security to such Agent’s participant account and credit such Book-Entry Security to the participant accounts of the Participants with respect to such Book-Entry Security and (ii) to debit the settlement accounts of such Participants and credit the settlement account of such Agent for an amount equal to the price of such Book-Entry Security.
H. Transfers of funds in accordance with SDFS deliver orders described in Settlement Procedures “F” and “G” will be settled in accordance with SDFS operating procedures in effect on the settlement date.
I. Upon confirmation of receipt of funds, the Trustee will transfer to the account of the Bank specified to the Trustee, in funds available for immediate use in the amount transferred to the Trustee in accordance with Settlement Procedure “F.”
J. Upon request, the Trustee will send to the Bank a statement setting forth the principal amount of Book-Entry Securities outstanding as of that date under the Indenture.
K. Such Agent will confirm the purchase of such Book-Entry Security to the purchaser either by transmitting to the participants with respect to such Book-Entry Security a confirmation order or orders through the Depositary’s institutional delivery system or by mailing a written confirmation to such purchaser.
L. If so ordered by the Bank, the Trustee will notate an issuance, including all additional information called for thereon, on Annex A of the Master Note, dated as of May 27, 2021.
Preparation of Prospectus Supplement and, if Applicable, Term Sheet:
If the Bank accepts an offer to purchase a Book-Entry Security, it will prepare a Prospectus Supplement or Pricing Supplement, as applicable, reflecting the terms of such Book-Entry Security and arrange, if requested by the Selling Agent or Purchasing Agent, as the case may be, to have delivered to the Selling Agent or Purchasing Agent, as the case may be, at least 10 copies of such Prospectus Supplement or Pricing Supplement, as applicable, with an electronic copy to the Trustee, as provided under “Delivery of Confirmation and Prospectus to Purchaser by Selling Agent” below. If applicable, the Term Sheet reflecting the terms of such Security will be prepared by such Agent and at least 10 copies will be delivered by such Agent to the Bank if requested by the Bank, with an electronic copy to the Trustee, as provided under “Delivery of Confirmation and Prospectus to Purchaser by Selling Agent” below. The Bank will arrange to have the applicable Prospectus Supplement or Pricing Supplement filed with, or transmitted by a means reasonably calculated to result in filing with, the Commission via the Commission’s EDGAR System pursuant to Rule 424 under the Act and, if applicable, will file the Term Sheet in accordance with Rule 433 under the Act.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Book-Entry Security a written confirmation of the sale and delivery and payment instructions. In addition, the Selling Agent will deliver to such purchaser or its agent the Prospectus as amended or supplemented (including the applicable Prospectus Supplement and/or Pricing Supplement) and, if applicable, the Term Sheet in relation to such Book-Entry Security prior to the first contract for sale of the Book-Entry Security.
| A-4 |
Date of Settlement:
The receipt by the Bank of immediately available funds in payment for a Book-Entry Security and the authentication and issuance of the Global Security representing such Book-Entry Security shall constitute “settlement” with respect to such Book-Entry Security. All orders of Book-Entry Securities solicited by a Selling Agent or made by a Purchasing Agent and accepted by the Bank on a particular date (the “Trade Date”) will be settled on a date (the “Settlement Date”) which is the third Business Day after the Trade Date pursuant to the “Settlement Procedure Timetable” set forth below, unless the Bank and the purchaser agree to settlement on another Business Day which shall be no earlier than the next Business Day after the Trade Date.
Trustee Not Required to Risk Its Own Funds:
Nothing herein shall be deemed to require the Trustee to risk or expend its own funds in connection with any payments to the Bank, the Agents or the Depositary or any purchaser, it being understood by all parties that payments made by the Trustee to the Bank, the Agents, the Depositary, or any purchaser shall be made only to the extent that funds are provided to the Trustee for such purpose.
Settlement Procedure Timetable:
For orders of Book-Entry Securities solicited by a Selling Agent and accepted by the Bank for settlement on the third Business Day after the Trade Date, Settlement Procedures “A” through “I” set forth above shall be completed as soon as possible but not later than the respective times (New York City time) set forth below:
| Settlement Procedure |
Time | |
| A | 5:00 p.m. | on the Business Day following the Trade Date or 10:00 a.m. on the Business Day prior to the Settlement Date, whichever is earlier |
| B | 12:00 noon | on the second Business Day immediately preceding the Settlement Date |
| C | 2:00 p.m. | on the second Business Day immediately preceding the Settlement Date |
| D | 9:00 a.m. | on the Settlement Date |
| E | 10:00 a.m. | on the Settlement Date |
| F-G | 2:15 p.m. | on the Settlement Date |
| H | 4:45 p.m. | on the Settlement Date |
| I | 5:00 p.m. | on the Settlement Date |
If the initial interest rate for a Floating Rate Book-Entry Security has not been determined at the time that Settlement Procedure “A” is completed, Settlement Procedures “B” and “C” shall be completed as soon as such rate has been determined but no later than 2:00 p.m. on the second Business Day immediately preceding the Settlement Date. Settlement Procedure “H” is subject to extension in accordance with any extension of Fedwire closing deadlines and in the other events specified in the SDFS operating procedures in effect on the Settlement Date.
If settlement of a Book-Entry Security is rescheduled or canceled, the Trustee, upon obtaining knowledge thereof, will deliver to the Depositary, through the Depositary’s Participant Terminal System, a cancellation message to such effect by no later than 2:00 p.m. on the Business Day immediately preceding the scheduled Settlement Date.
| A-5 |
Failure to Settle:
If the Trustee fails to enter an SDFS deliver order with respect to a Book-Entry Security pursuant to Settlement Procedure “F,” the Trustee may deliver to the Depositary, through the Depositary’s Participant Terminal System, as soon as practicable a withdrawal message instructing the Depositary to debit such Book-Entry Security to the Trustee’s participant account, provided that the Trustee’s participant account contains a principal amount of the Global Security representing such Book-Entry Security that is at least equal to the principal amount to be debited. If a withdrawal message is processed with respect to all the Book-Entry Securities represented by a Global Security, the Trustee will mark such Global Security “canceled,” make appropriate entries in the Trustee’s records and send such canceled Global Security to the Bank. The CUSIP number assigned to such Global Security shall, in accordance with CUSIP Service Bureau procedures, be canceled and not immediately reassigned. If a withdrawal message is processed with respect to one or more, but not all, of the Book-Entry Securities represented by a Global Security, the Trustee will exchange such Global Security for two Global Securities, one of which shall represent such Book-Entry Security or Securities and shall be canceled immediately after issuance and the other of which shall represent the remaining Book-Entry Securities previously represented by the surrendered Global Security and shall bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Security is not timely paid to the participants with respect to such Book-Entry Security by the beneficial purchaser thereof (or a person, including an indirect participant in the Depositary, acting on behalf of such purchaser), such participants and, in turn, the Agent for such Book-Entry Security may enter delivery orders through the Depositary’s Participant Terminal System debiting such Book-Entry Security to such participant’s account and crediting such Book-Entry Security to such Agent’s account and then debiting such Book-Entry Security to such Agent’s participant account and crediting such Book-Entry Security to the Trustee’s participant account and shall notify the Bank and the Trustee thereof. Thereafter, the Trustee will (i) promptly notify the Bank of such order, and the Bank shall transfer to such Agent funds available for immediate use in an amount equal to the price of such Book-Entry Security which was credited to the account of the Bank maintained at the Trustee in accordance with Settlement Procedure “I,” and (ii) deliver the withdrawal message and take the related actions described in the preceding paragraph. If such failure shall have occurred for any reason other than default by the applicable Agent to perform its obligations hereunder or under the Distribution Agreement, the Bank will reimburse such Agent on an equitable basis for the loss of its use of funds during the period when the funds were credited to the account of the Bank.
Notwithstanding the foregoing, upon any failure to settle with respect to a Book-Entry Security, the Depositary may take any actions in accordance with its SDFS operating procedures then in effect. In the event of a failure to settle with respect to one or more, but not all, of the Book-Entry Securities to have been represented by a Global Security, the Trustee will provide, in accordance with Settlement Procedure “D,” for the authentication and issuance of a Global Security representing the other Book-Entry Securities to have been represented by such Global Security and will make appropriate entries in its records. The Bank will, from time to time, furnish the Trustee with a sufficient quantity of Securities.
| A-6 |
PART II: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
Posting Rates by Bank:
The Bank and the Agents will discuss from time to time the rates of interest per annum to be borne by and the maturity of Certificated Securities that may be sold as a result of the solicitation of offers by an Agent. The Bank may establish a fixed set of interest rates and maturities for an offering period. If the Bank decides to change already posted rates, it will promptly advise the Agents to suspend solicitation of offers until the new posted rates have been established with the Agents.
Acceptance of Offers by Bank:
Each Agent will promptly advise the Bank by telephone or other appropriate means of all reasonable offers to purchase Certificated Securities, other than those rejected by such Agent. Each Agent may, in its discretion reasonably exercised, reject any offer received by it in whole or in part. Each Agent also may make offers to the Bank to purchase Certificated Securities as a Purchasing Agent. The Bank will have the sole right to accept offers to purchase Certificated Securities and may reject any such offer in whole or in part.
The Bank will promptly notify the Selling Agent or Purchasing Agent, as the case may be, of its acceptance or rejection of an offer to purchase Certificated Securities. If the Bank accepts an offer to purchase Certificated Securities, it will confirm such acceptance in writing to the Selling Agent or Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to Bank by Agent:
After the acceptance of an offer by the Bank, the Selling Agent or Purchasing Agent, as the case may be, will communicate the following details of the terms of such offer (the “Sale Information”) to the Bank by telephone (confirmed in writing) or by facsimile transmission or other acceptable written means:
| (1) | Principal Amount of Certificated Securities to be purchased; |
| (2) | If a Fixed Rate Certificated Security, the interest rate and initial interest payment date; |
| (3) | Trade Date; |
| (4) | Settlement Date; |
| (5) | Maturity Date; |
| (6) | Specified Currency and, if the Specified Currency is other than U.S. dollars, the applicable Exchange Rate for such Specified Currency; |
| (7) | Issue Price; |
| (8) | Selling Agent’s commission or Purchasing Agent’s commission, as the case may be; |
| (9) | Net Proceeds to the Bank; |
| (10) | If a redeemable Certificated Security, such of the following as are applicable: |
| (i) | Redemption Commencement Date, |
| (ii) | Initial Redemption Price (% of par), and |
| (iii) | Amount (% of par) that the Redemption Price shall decline (but not below par) on each anniversary of the Redemption Commencement Date; |
| (11) | If a Floating Rate Certificated Security, such of the following as are applicable: |
| (i) | Interest Rate Basis, |
| (ii) | Index Maturity, |
| A-7 |
| (iii) | Spread or Spread Multiplier, |
| (iv) | Maximum Rate, |
| (v) | Minimum Rate, |
| (vi) | Initial Interest Rate, |
| (vii) | Interest Reset Dates, |
| (viii) | Interest Calculation Dates, |
| (ix) | Interest Determination Dates, |
| (x) | Interest Payment Dates, |
| (xi) | Regular Record Dates, and |
| (xii) | Calculation Agent; |
| (12) | Name, address and taxpayer identification number of the registered owner(s); |
| (13) | Denomination of certificates to be delivered at settlement; |
| (14) | Book-Entry Security or Certificated Security; and |
| (15) | Selling Agent or Purchasing Agent. |
Preparation of Prospectus Supplement and, if Applicable, Term Sheet:
If the Bank accepts an offer to purchase a Certificated Security, it will prepare a Prospectus Supplement or Pricing Supplement, as applicable, reflecting the terms of such Certificated Security and arrange, if requested by the Selling Agent or Purchasing Agent, as the case may be, to have delivered to the Selling Agent or Purchasing Agent, as the case may be, with a copy to the Trustee, at least ten copies of such Prospectus Supplement or Pricing Supplement, as applicable, as provided under “Delivery of Confirmation and Prospectus to Purchaser by Selling Agent” below. If applicable, the Term Sheet reflecting the terms of such Security will be prepared by such Agent and at least 10 copies will be delivered by such Agent to the Bank, with a copy to the Trustee, as provided under “Delivery of Confirmation and Prospectus to Purchaser by Selling Agent” below. The Bank will arrange to have the applicable Prospectus Supplement or Pricing Supplement filed with, or transmitted by a means reasonably calculated to result in filing with, the Commission via the Commission’s EDGAR System pursuant to Rule 424 under the Act and, if applicable, will file the Term Sheet in accordance with Rule 433 under the Act.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Certificated Security a written confirmation of the sale and delivery and payment instructions. In addition, the Selling Agent will deliver to such purchaser or its agent the Prospectus as amended or supplemented (including the applicable Prospectus Supplement and/or Pricing Supplement) and, if applicable, the Term Sheet in relation to such Certificated Security prior to or together with the earlier of the delivery to such purchaser or its agent of (a) the confirmation of sale or (b) the Certificated Security.
Date of Settlement:
All offers of Certificated Securities solicited by a Selling Agent or made by a Purchasing Agent and accepted by the Bank will be settled on a date (the “Settlement Date”) which is the third Business Day after the date of acceptance of such offer, unless the Bank and the purchaser agree to settlement (a) on another Business Day after the acceptance of such offer or (b) with respect to an offer accepted by the Bank prior to 10:00 a.m., New York City time, on the date of such acceptance.
| A-8 |
Trustee Not Required to Risk Its Own Funds:
Nothing herein shall be deemed to require the Trustee to risk or expend its own funds in connection with any payments to the Bank, the Agents or any purchaser, it being understood by all parties that payments made by the Trustee to the Bank, the Agents, or any purchaser shall be made only to the extent that funds are provided to the Trustee for such purpose.
Instruction from Bank to Trustee for Preparation of Certificated Securities:
After receiving the Sale Information from the Selling Agent or Purchasing Agent, as the case may be, the Bank will communicate such Sale Information to the Trustee by telephone (confirmed in writing), by facsimile transmission or by other acceptable written means.
The Bank will instruct the Trustee by facsimile transmission or other acceptable written means to authenticate and deliver the Certificated Securities no later than 2:15 p.m., New York City time, on the Settlement Date. Such instruction will be given by the Bank prior to 3:00 p.m., New York City time, on the Business Day immediately preceding the Settlement Date unless the Settlement Date is the date of acceptance by the Bank of the offer to purchase Certificated Securities in which case such instruction will be given by the Bank by 11:00 a.m., New York City time.
Preparation and Delivery of Certificated Securities by Trustee and Receipt of Payment Therefor:
The Trustee will prepare each Certificated Security and appropriate receipts that will serve as the documentary control of the transaction.
In the case of a sale of Certificated Securities to a purchaser solicited by a Selling Agent, the Trustee will, by 2:15 p.m., New York City time, on the Settlement Date, make available for delivery the Certificated Securities to the Selling Agent for the benefit of the purchaser of such Certificated Securities against delivery by the Selling Agent of a receipt therefor. On the Settlement Date the Selling Agent will deliver payment for such Certificated Securities in immediately available funds to the Bank in an amount equal to the issue price of the Certificated Securities less the Selling Agent’s commission; provided that the Selling Agent reserves the right to withhold payment for which it has not received funds from the purchaser. The Bank shall not use any proceeds advanced by a Selling Agent to acquire securities.
In the case of a sale of Certificated Securities to a Purchasing Agent, the Trustee will, by 2:15 p.m., New York City time, on the Settlement Date, make available for delivery the Certificated Securities to the Purchasing Agent against delivery of payment for such Certificated Securities in immediately available funds to the Bank in an amount equal to the issue price of the Certificated Securities less the Purchasing Agent’s commission.
Failure of Purchaser to Pay Selling Agent:
If a purchaser (other than a Purchasing Agent) fails to make payment to the Selling Agent for a Certificated Security, the Selling Agent will promptly notify the Trustee and the Bank thereof by telephone (confirmed in writing), by facsimile transmission or by other acceptable written means. The Selling Agent will immediately return the Certificated Security to the Trustee. Immediately upon receipt of such Certificated Security by the Trustee, the Bank will return to the Selling Agent an amount equal to the amount previously paid, if any, to the Bank in respect of such Certificated Security. The Bank will reimburse the Selling Agent on an equitable basis for its loss of the use of funds during the period when they were credited to the account of the Bank.
| A-9 |
The Trustee will cancel the Certificated Security in respect of which the failure occurred and make appropriate entries in its records.
A-10
Exhibit 99.2
BANK OF MONTREAL
TO
THE BANK OF NEW YORK MELLON
Series Trustee
and
WELLS FARGO BANK, NATIONAL ASSOCIATION
Original Trustee
____________________________
Second Supplemental Indenture
Dated as of May 27, 2021
to
Indenture
Dated as of January 25, 2010
____________________________
Senior Debt Securities
____________________________
SECOND SUPPLEMENTAL INDENTURE, dated as of May 27, 2021, among Bank of Montreal, a Canadian chartered bank (herein called the “Bank”), having its principal executive offices located at 100 King Street West, 1 First Canadian Place, Toronto, Ontario, Canada M5X 1A1 and its head office located at 129 rue Saint Jacques, Montreal, Quebec, Canada H2Y 1L6, The Bank of New York Mellon, a banking corporation organized under the laws of the State of New York (herein called the “Series Trustee”), and Wells Fargo Bank, National Association, a national banking association organized under the laws of the United States of America (herein called the “Original Trustee,” and, together with the Series Trustee, each a “Trustee”).
RECITALS OF THE BANK
WHEREAS, the Bank and the Original Trustee have heretofore executed and delivered an Indenture, dated as of January 25, 2010 (the “Base Indenture”), as supplemented by the First Supplemental Indenture, dated as of September 23, 2018, between the Bank and the Original Trustee (the “First Supplemental Indenture”, and the Base Indenture as supplemented by the First Supplemental Indenture and as hereby supplemented and amended, the “Indenture”) providing for the issuance from time to time of series of the Bank’s unsecured senior debt securities (hereinafter called the “Securities”);
WHEREAS, Section 901(8) of the Base Indenture provides that the Bank and the Original Trustee, without the consent of any Holders, at any time and from time to time, may enter into one or more indentures supplemental thereto, to evidence and provide for the acceptance of appointment thereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of the Indenture as shall be necessary to provide for or facilitate the administration of the trusts thereunder by more than one Trustee, pursuant to the requirements of Section 611 of the Base Indenture;
WHEREAS, Section 611 of the Base Indenture provides that in case of the appointment thereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Bank, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental thereto wherein each successor Trustee shall accept such appointment and that (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of the Indenture as shall be necessary to provide for or facilitate the administration of the trusts thereunder by more than one Trustee, it being understood that nothing therein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts thereunder separate and apart from any trust or trusts thereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates;
| -2- |
WHEREAS, pursuant to Section 901(8) of the Base Indenture, the Bank wishes to enter into this Second Supplemental Indenture to evidence and provide for the acceptance of appointment by the Series Trustee with respect to the Securities (the “Series G Securities”) of a new series of medium-term notes to be designated as the “Senior Medium-Term Notes, Series G” of the Bank and to add to or change any of the provisions of the Indenture as shall be necessary to provide for or facilitate the administration of the trusts thereunder by more than one Trustee, pursuant to the requirements of Section 611 of the Base Indenture;
WHEREAS, Section 901(5) of the Base Indenture provides that the Bank and the Original Trustee at any time and from time to time, may enter into one or more indentures supplemental thereto, in form satisfactory to the Original Trustee, to add to, change or eliminate any of the provisions of the Base Indenture in respect of one or more series of Securities, provided that any such addition, change or elimination shall neither (i) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights of the Holder of any such Security with respect to such provision;
WHEREAS, the Bank wishes to make certain changes only to the Series G Securities issued after the time this Second Supplemental Indenture is executed and not applying to, or modifying the rights of Holders of, any other Securities and to make certain other amendments to the Base Indenture with respect to the Series G Securities (but not with respect to any Securities of any other series);
WHEREAS, the Bank has requested that the Trustees execute and deliver this Second Supplemental Indenture; and all requirements necessary to make this Second Supplemental Indenture a valid, binding and enforceable instrument in accordance with its terms, and to make the Series G Securities, when executed by the Bank and authenticated and delivered by the Series Trustee, the valid, binding and enforceable obligations of the Bank, have been satisfied; and the execution and delivery of this Second Supplemental Indenture has been duly authorized in all respects.
NOW, THEREFORE, WITNESSETH:
In consideration of the covenants and other provisions set forth in this Second Supplemental Indenture and the Base Indenture, the Bank and the Trustees mutually covenant and agree with one another, and for the equal and proportionate benefit of the respective Holders of the applicable Securities from time to time, as follows:
ARTICLE One
PROVISIONS OF GENERAL APPLICATION
Section 101. Relation to Base Indenture.
This Second Supplemental Indenture constitutes an integral part of the Indenture.
| -3- |
Section 102. Governing Law.
This Second Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York.
ARTICLE Two
AMENDMENTS
Section 201. Applicability.
Except as may be provided pursuant to Section 301 of the Base Indenture, this Second Supplemental Indenture shall apply solely to the Series G Securities and shall not apply to, or modify the rights of Holders or Beneficial Owners of, any Securities of any other series.
Section 202. Definition of Terms.
For purposes of the Trust Indenture Act, solely with respect to the Series G Securities (but not with respect to any Securities of any other series), “indenture trustee” or “institutional trustee” shall mean the Series Trustee and not the Original Trustee.
Section 203. Amendments to Base Indenture.
Solely with respect to the Series G Securities (and not with respect to any Securities of any other series), the following amendments are hereby made to the Indenture:
(a) Section 603(9) of the Base Indenture shall be amended by deleting it in its entirety and replacing it with the below:
“(9) the Trustee shall not be deemed to have notice of any Event of Default unless written notice of any event which is in fact such a default is delivered to the Trustee in accordance with an appropriate manner of delivery as set forth elsewhere in this Indenture, and such notice references the Securities or this Indenture.”
(b) Section 603 of the Base Indenture shall be amended by adding the below after subsection 603(9):
“(10) in no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(11) in no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, pandemics or epidemics, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances;
| -4- |
(12) the Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (for the purposes of this Section, “Instructions”) given pursuant to the Indenture and delivered using Electronic Means; provided, however, that the Bank shall provide to the Trustee an incumbency certificate listing authorized officers and containing specimen signatures of such authorized officers, which incumbency certificate shall be amended by the Bank whenever a person is to be added or deleted from the listing. If the Bank elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Bank understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an authorized officer listed on the incumbency certificate provided to the Trustee have been sent by such authorized officer. The Bank shall be responsible for ensuring that only authorized officers transmit such Instructions to the Trustee and that the Grantor, the Beneficiary and all authorized officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Bank. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Bank agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Bank; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures. “Electronic Means” shall mean the following communications methods: e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder; and
(13) The Bank agrees (i) to provide the Trustee with such reasonable information as it has in its possession to enable the Trustee to determine whether any payments pursuant to the Indenture are subject to the withholding requirements described in Section 1471(b) of the US Internal Revenue Code of 1986 (the “Code”) or otherwise imposed pursuant to Sections 1471 through 1474 of the Code and any regulations, or agreements thereunder or official interpretations thereof (“Applicable Law”), and (ii) that the Trustee shall be entitled to make any withholding or deduction from payments under the Indenture to the extent necessary to comply with Applicable Law, for which the Trustee shall not have any liability.”
| -5- |
(c) Notwithstanding anything to the contrary in the Indenture, the Base Indenture shall be amended by inserting the words “, including, for the avoidance of doubt, the Head, Capital Management and Funding” immediately following the term “Vice-President Corporate Treasury”, wherever such term appears in the Base Indenture.
ARTICLE Three
SERIES TRUSTEE
Section 301. Appointment and Acceptance of Series Trustee
Pursuant to Section 611 of the Base Indenture:
(a) The Bank hereby appoints the Series Trustee, and the Series Trustee accepts such appointment, as successor trustee under the Indenture solely with respect to the Series G Securities (but not with respect to any Securities of any other series).
(b) There shall be vested in the Series Trustee all the rights, powers, trusts and duties of the Trustee under the Indenture with respect to the Series G Securities (but not with respect to any Securities of any other series) with like effect as if the Series Trustee had originally been named as Trustee in the first paragraph of the Base Indenture.
(c) There shall continue to be vested in the Original Trustee all the rights, powers, trusts and duties of the Trustee under the Indenture with respect to any Securities of any other series (but not with respect to any Series G Securities) heretofore or hereafter issued by the Bank under the Indenture.
Section 302. Eligibility of Series Trustee.
The Series Trustee hereby represents that it is qualified and eligible under the provisions of the Trust Indenture Act and Section 609 of the Base Indenture to accept its appointment as successor trustee under the Indenture solely with respect to the Series G Securities (but not with respect to any Securities of any other series).
Section 303. Concerning the Trustees.
(a) No Trustee assumes any duties, responsibilities or liabilities by reason of this Second Supplemental Indenture other than as set forth in the Base Indenture, the First Supplemental Indenture and in this Second Supplemental Indenture, and in carrying out its responsibilities hereunder, each Trustee shall have all of the rights, powers, privileges, protections, duties and immunities which it possesses under the Indenture.
(b) Nothing contained herein shall constitute the Trustees co-trustees of the same trust and each Trustee shall be trustee of a trust or trusts under the Indenture separate and apart from any trust or trusts under the Indenture administered by any other such Trustee.
| -6- |
(c) The Original Trustee shall have no duties, responsibilities or liabilities for any acts or omissions of the Series Trustee and the Series Trustee shall have no duties, responsibilities or liabilities for any acts or omissions of the Original Trustee.
ARTICLE Four
MISCELLANEOUS PROVISIONS
Section 401. Ratification of Base Indenture.
The Base Indenture, as supplemented by the First Supplemental Indenture and this Second Supplemental Indenture, is in all respects ratified and confirmed, and this Second Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and therein provided.
Section 402. Trustee Not Responsible for Recitals.
The recitals contained herein and in the Securities, except for a Trustee’s certificate of authentication, shall be taken as the statements of the Bank, and the Trustees assume no responsibility for their correctness. The Trustees make no representations as to the validity or sufficiency of this Second Supplement Indenture or of the Securities. The Trustees shall not be accountable for the use or application by the Bank of Securities or the proceeds thereof.
Section 403. Execution in Counterparts.
This Second Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Second Supplemental Indenture and of signature pages by facsimile or electronic format (i.e., “.pdf” or “.tif”) transmission shall constitute effective execution and delivery of this Second Supplemental Indenture as to the parties hereto and may be used in lieu of the original Second Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or electronic format (i.e., “.pdf” or “.tif”) shall be deemed to be their original signatures for all purposes. This Second Supplemental Indenture shall be valid, binding, and enforceable against a party only when executed and delivered by an authorized individual on behalf of the party by means of (i) any electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including relevant provisions of the Uniform Commercial Code/UCC (collectively, “Signature Law”); (ii) an original manual signature; or (iii) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. This Second Supplemental Indenture may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute one and the same instrument. For avoidance of doubt, original manual signatures shall be used for execution or indorsement of writings when required under the UCC or other Signature Law due to the character or intended character of the writings.
[Signature page follows]
| -7- |
IN WITNESS WHEREOF, the parties have caused this Second Supplemental Indenture to be duly executed as of the date first written above.
| BANK OF MONTREAL |
| By: | /s/ Caroline Dufaux | |
| Name: Caroline Dufaux | ||
| Title: Head, Capital Management and Funding |
| THE BANK OF NEW YORK MELLON, as Series Trustee |
| By: | /s/ Francine Kincaid | |
| Name: Francine Kincaid | ||
| Title: Vice President |
| WELLS FARGO BANK, NATIONAL ASSOCIATION, as Original Trustee |
| By: | /s/ Todd Landry | |
| Name: Todd Landry | ||
| Title: Vice President |
[Signature Page to Second Supplemental Indenture]
Exhibit 99.3
BANK OF MONTREAL
US$25,000,000,000
SENIOR MEDIUM-TERM NOTES, SERIES G
CALCULATION AGENCY AGREEMENT
BETWEEN
BANK OF MONTREAL
AND
BMO capital markets corp.
May 27, 2021
Bank of Montreal (the “Bank”) proposes to issue and sell from time to time certain of its senior debt securities designated as Senior Medium-Term Notes, Series G (the “Notes”), pursuant to the terms of a Distribution Agreement, dated as of May 27, 2021, between the Bank and the Agents (as defined therein), as agents. The Notes are to be issued under a Senior Indenture, dated as of January 25, 2010, between the Bank and Wells Fargo Bank, National Association, as trustee, as supplemented by the First Supplemental Indenture thereto, dated as of September 23, 2018, between the Bank and Wells Fargo Bank, National Association, as trustee, and the Second Supplemental Indenture thereto, dated as of May 27, 2021, among the Bank, The Bank of New York Mellon, as trustee with respect to the Senior Medium-Term Notes, Series G (the “Trustee”), and Wells Fargo Bank, National Association, as the same may be amended and supplemented from time to time (collectively, the “Indenture”). Terms used but not defined herein shall have the meanings assigned to them in the form of floating rate Note delivered to you herewith or in the Prospectus, dated April 20, 2020, as supplemented by the Prospectus Supplement, dated May 27, 2021 (together, the “Prospectus”), relating to the Notes.
For the purpose of appointing an agent to perform the functions of the Calculation Agent as described in the Prospectus, including the determination of the amount of principal or interest payable on any Note that is linked to other securities, commodities, a foreign currency or currencies or an index or indices (including Notes which bear interest at the Commercial Paper Rate, U.S. Prime Rate, LIBOR, any substitute or successor base rate to LIBOR, EURIBOR, SOFR, Compounded SOFR, Treasury Rate, CMT Rate, CMS Rate, CPI Rate and Federal Funds Rate) to be set forth in one or more pricing or product supplements to the Prospectus (collectively, the “Floating Rate Indices”), the Bank and BMO Capital Markets Corp. agree as follows:
1. Upon the terms and subject to the conditions contained herein, the Bank hereby appoints BMO Capital Markets Corp. (in such capacity, the “Calculation Agent”) for the purpose of performing the functions of the Calculation Agent as described in the Prospectus, in the manner and at the times provided in the Notes, the Prospectus and any applicable pricing or product supplement, except with respect to Notes issued on or after the date hereof where The Bank of New York Mellon or a different calculation agent is designated in the applicable pricing or product supplement.
2. Except as provided in paragraph 3, the Calculation Agent shall perform the functions of the Calculation Agent described in the Prospectus and shall use due care to determine the Floating Rate Indices and all other matters which are required to be determined or provided by the Calculation Agent pursuant to the terms of the applicable Note and as described in the Prospectus and in any applicable pricing supplement or product supplement, and (i) shall communicate the same and the relevant interest payment date to the Bank, the Trustee and any paying agent identified to it in writing on the day of such determination or performance and (ii) if applicable, upon the request of a Holder of such a Note, provide the interest rate (based on the applicable Floating Rate Indices) then in effect and, if determined, the interest rate (based on the applicable Floating Rate Indices) that will become effective on the next Interest Reset Date.
3. The Calculation Agent accepts its obligations set forth herein, upon the terms and subject to the conditions hereof, including the following, to all of which the Bank agrees:
(a) The Calculation Agent shall be entitled to such compensation as may be agreed upon on an arms’ length basis from time to time in writing with the Bank for all services rendered by the Calculation Agent, and the Bank promises to pay such compensation and to reimburse the Calculation Agent for the reasonable, documented out-of-pocket expenses (including counsel fees and expenses) incurred by it in connection with the services rendered by it hereunder upon receipt of such invoices as the Bank shall reasonably require. The Bank also agrees to indemnify the Calculation Agent for, and to hold it harmless against, any and all loss, liability, damage, claim or expense (including the costs and expenses of defending against any claim of liability) incurred by the Calculation Agent that arises out of, or in connection with, its accepting appointments, or acting as Calculation Agent hereunder, except such as may result from the gross negligence, willful misconduct or bad faith of the Calculation Agent or any of its agents or employees. The Calculation Agent shall incur no liability and shall be indemnified and held harmless by the Bank for, or in respect of, any actions taken, omitted to be taken or suffered to be taken in good faith by the Calculation Agent in reliance upon (i) the written opinion or advice of legal advisors satisfactory to it or (ii) written instructions from the Bank. The Calculation Agent shall not be liable for any error resulting from the use of or reliance on a source of information used in good faith and with due care to make any determination, calculation or declaration hereunder. The provisions of this paragraph shall survive the termination of this agreement.
(b) In acting under this agreement and in connection with the Notes, the Calculation Agent is acting solely as agent of the Bank and does not assume any obligations to, or relationship of agency or trust for or with, any of the owners or holders of the Notes.
(c) The Calculation Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted to be taken or anything suffered by it in reliance upon the terms of the Notes, or any notice, direction, certificate, affidavit, statement or other paper, document or communication reasonably believed by it to be genuine and to have been approved or signed by the proper party or parties.
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(d) Unless herein otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Bank made or given by it under any provision of this agreement shall be sufficient if signed by any officer of the Bank.
(e) The Calculation Agent shall be obligated to perform only such duties as are specifically set forth herein, in the Prospectus or in any applicable pricing or product supplement, and no implied duties or obligations shall be read into this agreement against the Calculation Agent.
(f) The Calculation Agent may, upon obtaining the prior written consent of the Bank, perform any duties hereunder by or through its agents or attorneys, and the Calculation Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.
4. (a) The Calculation Agent may at any time resign as Calculation Agent by giving written notice to the Bank of such intention on its part, specifying the date on which its desired resignation shall become effective; provided, however, that such date shall never be earlier than 60 days after the receipt of such notice by the Bank, unless the Bank agrees in writing to accept a shorter notification period. The Bank may remove the Calculation Agent (with or without cause) at any time by filing with the Calculation Agent an instrument in writing signed on behalf of the Bank by an authorized person thereof and specifying such removal and the date when it is intended to become effective. Such resignation or removal shall take effect upon the date of the appointment by the Bank, as hereinafter provided, of a successor Calculation Agent. If within 60 days after notice of resignation or removal has been given, a successor Calculation Agent has not been appointed, the Calculation Agent may petition a court of competent jurisdiction to appoint a successor Calculation Agent. A successor Calculation Agent shall be appointed by the Bank by an instrument in writing signed on behalf of the Bank by an authorized person thereof and the successor Calculation Agent. Upon the appointment of a successor Calculation Agent and acceptance by it of such appointment, the Calculation Agent so superseded shall cease to be such Calculation Agent hereunder. Upon its resignation or removal, the Calculation Agent shall be entitled to the payment by the Bank of its compensation, if any is owed to it, for services rendered hereunder and to the reimbursement of all reasonable out-of-pocket expenses incurred in connection with the services rendered by it hereunder.
(b) If at any time (i) the Calculation Agent shall resign or be removed, shall become incapable of acting or shall be adjudged bankrupt or insolvent, (ii) an order is made or effective resolution is passed to wind up the Calculation Agent, (iii) the Calculation Agent shall file a voluntary petition in bankruptcy or make an assignment for the benefit of its creditors, shall consent to the appointment of a receiver, administrator or other similar official of all or any substantial part of its property, or shall admit in writing its inability to pay or meet its debts as they mature, (iv) a receiver, administrator or other similar official of the Calculation Agent or of all or any substantial part of its property shall be appointed, (v) any order of any court shall be entered approving any petition filed by or against the Calculation Agent under the provisions of any applicable bankruptcy or insolvency law or (vi) any public officer shall take charge or control of the Calculation Agent or its property or affairs for the purpose of rehabilitation, conservation or liquidation, then a successor Calculation Agent shall be appointed by the Bank by an instrument in writing filed with the successor Calculation Agent. Upon the appointment as aforesaid of a successor Calculation Agent and acceptance by the latter of such appointment and the giving of notice, the Calculation Agent so replaced shall cease to be Calculation Agent hereunder.
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(c) Any successor Calculation Agent appointed hereunder shall execute and deliver to its predecessor and to the Bank an instrument accepting such appointment hereunder, and thereupon such successor Calculation Agent, without any further act, deed or conveyance, shall become vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect as if originally named as such Calculation Agent hereunder, and such predecessor, upon payment of its charges and disbursements then unpaid, shall thereupon become obliged to transfer and deliver, and such successor Calculation Agent shall be entitled to receive, copies of any relevant records maintained by such predecessor Calculation Agent.
(d) Any corporation (as defined in the Indenture) into which the Calculation Agent may be merged or converted or with which the Calculation Agent may be consolidated, any corporation resulting from any merger, conversion, or consolidation to which the Calculation Agent shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Calculation Agent, shall, to the extent permitted by applicable law, be the successor Calculation Agent under this agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto. Notice of any such merger, conversion, consolidation or sale shall forthwith be given to the Bank within 30 days of such merger, conversion, consolidation or sale.
5. Any notice required to be given hereunder shall be delivered in person, sent by letter, first class mail, email or facsimile or communicated by telephone (subject, in the case of communication by telephone, to confirmation dispatched within twenty-four hours by letter or by facsimile), in the case of the Bank, Bank of Montreal, 100 King Street West, 1 First Canadian Place, 10th Floor, Toronto, Ontario, Canada M5X 1A1, e-mail: CorporateWholesaleFunding@bmo.com, telephone: (416) 927-5503, fax: 416-867-7193, Attn: Gabriel Wong, and in the case of the Calculation Agent, BMO Capital Markets Corp., 3 Times Square, 28th Floor, New York, NY 10036, email: BMOCMUSLegal@bmo.com, telephone: (212) 885-4000, Attn: Legal Department, or to any other address of which any party shall have notified the others in writing as herein provided. Any notice hereunder given by telecopy or letter, first class mail, shall be deemed to be received upon actual receipt thereof.
6. This agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
7. This agreement may be executed by each of the parties hereto in any number of counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all such counterparts shall together constitute one and the same agreement.
8. This agreement is solely for the benefit of the parties hereto and their successors and assigns, and no other person shall acquire or have any rights under or by virtue hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed as of the date first above written.
| BANK OF MONTREAL | |||
| By | /s/ Caroline Dufaux | ||
| Name: | Caroline Dufaux | ||
| Title: | Head, Capital Management and Funding | ||
| bmo capital markets corp. | |||
| By | /s/ Brad Rothbaum | ||
| Name: | Brad Rothbaum | ||
| Title: | Managing Director and Head, U.S. Global Markets | ||
[Signature Page to Calculation Agency Agreement]
Exhibit 99.4
BANK OF MONTREAL
US$25,000,000,000
SENIOR MEDIUM-TERM NOTES, SERIES G
EXCHANGE RATE AGENCY AGREEMENT
BETWEEN
BANK OF MONTREAL
AND
BMO Capital Markets Corp.
May 27, 2021
This AGREEMENT (this “Agreement”) is made as of May 27, 2021 between the Bank of Montreal (the “Bank”) and BMO Capital Markets Corp.
WHEREAS, the Bank has authorized the issuance from time to time of its Senior Medium-Term Notes, Series G (the “Notes”) at an aggregate initial offering price of up to US$25,000,000,000, which may be denominated in U.S. dollars or in other currencies, currency units or composite currencies (the “Foreign-Currency Notes”);
WHEREAS, the Notes will be issued pursuant to the Senior Indenture, dated as of January 25, 2010, between the Bank and Wells Fargo Bank, National Association, as trustee, as supplemented by the First Supplemental Indenture thereto, dated as of September 23, 2018, between the Bank and Wells Fargo Bank, National Association, as trustee, and the Second Supplemental Indenture thereto, dated as of May 27, 2021, among the Bank, The Bank of New York Mellon, as trustee with respect to the Senior Medium-Term Notes, Series G (the “Trustee”), and Wells Fargo Bank, National Association, as the same may be amended or supplemented from time to time (collectively, the “Indenture”);
WHEREAS, unless otherwise indicated in the applicable pricing and (where relevant) product supplement to the Prospectus, dated April 20, 2020 as supplemented by the Prospectus Supplement, dated May 27, 2021 (together, the “Prospectus”), relating to the Notes, payments of principal of (and premium, if any) and interest on the Foreign-Currency Notes will be made in the foreign currency, currency unit or composite currency specified in the applicable pricing supplement or product supplement (the “Specified Currency”) from funds paid by the Bank to the Trustee or another paying agent of the Bank; provided, however, that payment of principal of (and premium, if any) and interest on the Foreign-Currency Notes will be made in U.S. dollars (i) in the case of a Specified Currency, at the option of the Bank in the case of circumstances beyond the control of the Bank, such as the imposition of exchange controls or a disruption in the currency markets, on the basis of an exchange rate for such Specified Currency published at 12:00 noon, New York City time by a generally recognized and publicly available source, to be determined in the sole discretion of the Exchange Rate Agent (as defined below), on the latest day before the day on which payment is to be made, or (ii) in the case of Foreign-Currency Notes which so provide, at the option of the holder of such Foreign-Currency Note in accordance with the procedures set forth in such Foreign-Currency Note.
NOW, IT IS HEREBY THEREFORE AGREED that:
1. Appointment of Agent. The Bank hereby appoints BMO Capital Markets Corp. as its agent (in such capacity, the “Exchange Rate Agent,” which term shall, unless the context otherwise requires, include its successors and assigns), and the Exchange Rate Agent hereby accepts such appointment as the Bank’s agent, for the purpose of (i) causing the conversion of Specified Currencies to U.S. dollars for the payment of principal of (and any premium) and interest on the Foreign-Currency Notes to holders of Foreign-Currency Notes who are to be paid in U.S. dollars, (ii) obtaining from time to time exchange rates, (iii) executing foreign exchange spot transactions for foreign Specified Currencies and (iv) performing the other services hereinafter described, in each case upon the terms and subject to the conditions hereinafter mentioned.
2. Payment Dates. Except as may otherwise be provided in the Foreign-Currency Notes with respect to payments due on any day which is not a Business Day (as defined in Section 7 hereof), principal (and premium, if any) and interest will be payable on the Foreign-Currency Notes on the various dates indicated therein and in the applicable pricing supplement and (where relevant) product supplement to the Prospectus. Each such day on which principal of (and premium, if any) and interest on the Notes shall be payable is referred to herein as a “Payment Date.”
3. Exchange of Currencies.
(a) The Bank shall notify or cause the Trustee to notify the Exchange Rate Agent at least three Business Days prior to each Payment Date of the aggregate amount of Specified Currency due to all holders of Foreign-Currency Notes scheduled to receive payments in U.S. dollars on such Payment Date. As near as practicable to 11:00 a.m., New York City time, on the second Business Day immediately preceding the applicable Payment Date, the Exchange Rate Agent will solicit or cause the solicitation of bid quotations from three or, if three are not available, then two Recognized Foreign Exchange Dealers (as defined in Section 7 hereof), one of which may be the Exchange Rate Agent, for the purchase of the aggregate amount of the Specified Currency which is to be exchanged for payment in U.S. dollars on such Payment Date. The settlement date for the exchange of such Specified Currency for U.S. dollars shall be the applicable Payment Date. The Exchange Rate Agent shall enter into an agreement to trade such currencies (in such amounts and upon such terms as indicated above and upon such further terms as are appropriate and not inconsistent with the above) with such Recognized Foreign Exchange Dealer as shall have submitted the highest bid. If some but not all of the Foreign-Currency Notes scheduled to receive payments in U.S. dollars on such Payment Date bear interest based on LIBOR (or any Benchmark Replacement (as defined in the Prospectus) or any other substitute or successor base rate to LIBOR) or EURIBOR, such second preceding Business Day will be determined for this purpose as if none of those Notes bore interest based on LIBOR or EURIBOR. If the Exchange Rate Agent determines that at least two such bids are not available, the Exchange Rate Agent will transmit the total amount of the Specified Currency received from the Bank for payment on the Payment Date (without converting the same into U.S. dollars) to the Bank’s paying agent as provided below. Upon the determination of an exchange rate as provided in this Section 3(a), the Exchange Rate Agent will as soon as practicable notify the Bank of such exchange rate.
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(b) As early as practicable, on the Payment Date, the Bank shall remit to the Exchange Rate Agent the aggregate amount of Specified Currency payable to all holders of Foreign-Currency Notes scheduled to receive payments in U.S. dollars on such Payment Date. As promptly as practicable thereafter on the Payment Date, the Exchange Rate Agent will exchange such amount of Specified Currency for U.S. dollars and transmit the U.S. dollars received upon exchange from the Specified Currency to the Bank’s paying agent, or in accordance with the written instructions of such paying agent.
4. Fees and Expenses.
(a) So long as any of the Foreign-Currency Notes remain outstanding, the Bank will pay to the Exchange Rate Agent such compensation as may be mutually agreed upon on an arms’ length basis from time to time by the Bank and the Exchange Rate Agent in respect of the Exchange Rate Agent’s services to be rendered hereunder. If the Exchange Rate Agent shall cease to be the Exchange Rate Agent hereunder, it shall repay to the Bank the unearned portion, calculated on a pro rata basis, of said fee. Upon receiving an accounting therefor from the Exchange Rate Agent, the Bank will also pay the reasonable out-of-pocket expenses (including legal, advertising, telex and cable expenses) properly incurred by the Exchange Rate Agent in connection with its services to the Bank as Exchange Rate Agent hereunder. It is understood that all currency exchange costs will be borne by (i) in the case of payment in U.S. dollars at the option of the Bank, the Bank, and (ii) in the case of payments in U.S. dollars at the option of the Foreign-Currency Note holders, such holders, and, in each case, will be deducted by the Exchange Rate Agent from funds transmitted to, or in accordance with the written instructions of, the Bank’s paying agent pursuant to Section 3 hereof. Upon request by the Exchange Rate Agent, the Bank will confirm in writing to the Exchange Rate Agent whether specified expenses, disbursements or advances are or are not to be borne by such Foreign-Currency Note holders pursuant to the terms of the Foreign-Currency Notes.
5. Terms and Conditions. The Exchange Rate Agent accepts its obligations set forth herein upon the terms and subject to the conditions hereof, including the following, to all of which the Bank agrees:
(i) in acting under this Agreement and in connection with the Foreign-Currency Notes, the Exchange Rate Agent is acting solely as agent of the Bank and does not assume any obligation to, or any relationship of agency or trust for or with, any of the owners or holders of the Foreign-Currency Notes;
(ii) unless herein otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Bank made or given by it under any provision of this Agreement shall be sufficient if signed by a proper officer or an authorized person of the Bank;
(iii) the Exchange Rate Agent shall be obliged to perform only such duties as are set out specifically herein and any duties necessarily incidental thereto;
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(iv) the Exchange Rate Agent, whether acting for itself or in any other capacity, may become the owner or pledgee of Foreign-Currency Notes with the same rights as it would have had if it were not acting hereunder as Exchange Rate Agent;
(v) the Bank shall indemnify the Exchange Rate Agent for, and to hold it harmless against, any and all loss, liability, damage, claim or expense (including the costs and expenses of defending against any claim of liability) incurred by the Exchange Rate Agent that arises out of, or in connection with, its accepting appointments, or acting as Exchange Rate Agent hereunder, except such as may result from the gross negligence, willful misconduct or bad faith of the Exchange Rate Agent or any of its agents or employees;
(vi) the Exchange Rate Agent shall incur no liability and shall be indemnified and held harmless by the Bank for, or in respect of, any actions taken, omitted to be taken or suffered to be taken in good faith by the Exchange Rate Agent in reliance upon (i) the written opinion or advice of legal advisors satisfactory to it or (ii) written instructions from the Bank;
(vii) the Exchange Rate Agent shall not be liable for any error resulting from the use of or reliance on a source of information used in good faith and with due care to make any determination, calculation or declaration hereunder;
(viii) the Exchange Rate Agent may, upon obtaining the prior written consent of the Bank, perform any duties hereunder either directly or by or through agents or attorneys, and the Exchange Rate Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(ix) neither the Exchange Rate Agent nor its agents or attorneys, if any, shall be liable to the Bank for any act or omission hereunder, or for any error of judgment made in good faith by it or them, except in the case of its or their gross negligence or willful misconduct; and
(x) the Exchange Rate Agent shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
6. Resignation; Removal; Successors.
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(a) Except as provided below, the Exchange Rate Agent may at any time resign as Exchange Rate Agent by giving written notice to the Bank of such intention on its part, specifying the date on which its desired resignation shall become effective, provided that such notice shall not be given less than 60 days prior to the said effective date unless the Bank otherwise agrees in writing. Except as provided below, the Bank may remove the Exchange Rate Agent (with or without cause) at any time by filing with the Exchange Rate Agent an instrument in writing signed on behalf of the Bank by an authorized person thereof and specifying such removal and the date when it is intended to become effective. Such resignation or removal shall take effect upon the date of the appointment by the Bank, as hereinafter provided, of a successor Exchange Rate Agent. If within 60 days after notice of resignation or removal has been given, a successor Exchange Rate Agent has not been appointed, the Exchange Rate Agent may petition a court of competent jurisdiction to appoint a successor Exchange Rate Agent. A successor Exchange Rate Agent shall be appointed by the Bank by an instrument in writing signed on behalf of the Bank by an authorized person thereof and the successor Exchange Rate Agent. Upon the appointment of a successor Exchange Rate Agent and acceptance by it of such appointment, the Exchange Rate Agent so superseded shall cease to be the Exchange Rate Agent hereunder. Upon its resignation or removal, the Exchange Rate Agent shall be entitled to the payment by the Bank of its compensation, if any is owed to it, for services rendered hereunder and to the reimbursement of all reasonable out-of-pocket expenses incurred in connection with the services rendered by it hereunder.
(b) If at any time (i) the Exchange Rate Agent shall resign or be removed, shall become incapable of acting or shall be adjudged bankrupt or insolvent, (ii) an order is made or effective resolution is passed to wind up the Exchange Rate Agent, (iii) the Exchange Rate Agent shall file a voluntary petition in bankruptcy or make an assignment for the benefit of its creditors, shall consent to the appointment of a receiver, administrator or other similar official of all or any substantial part of its property, or shall admit in writing its inability to pay or meet its debts as they mature, (iv) a receiver, administrator or other similar official of the Exchange Rate Agent or of all or any substantial part of its property shall be appointed, (v) any order of any court shall be entered approving any petition filed by or against the Exchange Rate Agent under the provisions of any applicable bankruptcy or insolvency law or (vi) any public officer shall take charge or control of the Exchange Rate Agent or its property or affairs for the purpose of rehabilitation, conservation or liquidation, then a successor Exchange Rate Agent, which shall be a leading bank or investment bank doing business in the market of the various Specified Currencies, shall be appointed by the Bank by an instrument in writing filed with the successor Exchange Rate Agent. Upon the appointment as aforesaid of a successor Exchange Rate Agent and acceptance by the latter of such appointment and (except in cases of removal for failure to establish the exchange rate) the giving of notice, the Exchange Rate Agent so replaced shall cease to be Exchange Rate Agent hereunder.
(c) Any successor Exchange Rate Agent hereunder shall execute and deliver to its predecessor and the Bank an instrument accepting such appointment hereunder, and thereupon such successor Exchange Rate Agent, without any further act, deed or conveyance, shall become vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect as if originally named the Exchange Rate Agent hereunder, and such predecessor, upon payment of its charges and disbursements then unpaid, shall thereupon become obliged to transfer and deliver, and such successor Exchange Rate Agent shall be entitled to receive, copies of any relevant records maintained by such predecessor Exchange Rate Agent.
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(d) Any corporation (as defined in the Indenture) into which the Exchange Rate Agent may be merged or converted, any corporation with which the Exchange Rate Agent may be consolidated, any corporation resulting from any merger, conversion or consolidation to which the Exchange Rate Agent shall be a party or any corporation succeeding to all or substantially all of the corporate trust business of the Exchange Rate Agent, shall, to the extent permitted by applicable law and provided that it shall be a responsible financial firm or institution with an established place of business in The City of New York, be the successor Exchange Rate Agent under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto. Notice of any such merger, conversion, consolidation or sale shall forthwith be given to the Bank within 30 days of such merger, conversion, consolidation or sale.
7. Certain Definitions.
(a) As used herein, “Business Day” means, with respect to any Foreign-Currency Note and except as otherwise may be provided therein, a day that meets all the following applicable requirements:
| · | for all Foreign-Currency Notes, is a Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which banking institutions in New York City generally are authorized or obligated by law, regulation or executive order to close; |
| · | if the Foreign-Currency Note bears interest based on LIBOR, is also a London Business Day; |
| · | if the Foreign-Currency Note has a Specified Currency other than U.S. dollars or euros, is also a day on which banking institutions in the principal financial center of the country issuing the Specified Currency are not authorized or obligated generally by law, regulation or executive order to close; and |
| · | if the Foreign-Currency Note bears interest based on, or the cash settlement value of which is linked to EURIBOR or has a Specified Currency of euros, or is a Foreign-Currency Note the interest rate on which is based on, or the cash settlement value of which is linked to, EURIBOR or for which the Index Currency is euros, is also a Euro Business Day. |
(b) As used herein, “Euro Business Day” means any day on which the Trans-European Automated Real-Time Gross settlement Express Transfer (TARGET) System, or any successor system, is open for business.
(c) As used herein, “Index Currency” means, with respect to a Foreign-Currency Note which bears interest based on LIBOR, the currency specified as such in the applicable pricing or product supplement for such Foreign-Currency Note.
(d) As used herein, “London Business Day” means any day on which dealings in the relevant Index Currency are transacted in the London interbank market.
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(e) As used herein, “Recognized Foreign Exchange Dealers” means (a) any of the first three foreign exchange dealers in a list of five foreign exchange dealers to be agreed upon by the Bank and the Exchange Rate Agent (the “Dealer List”), or (b) upon the failure to obtain one or more of such bids from the first three or, if three are not available, the first two foreign exchange dealers in the Dealer List, such other foreign exchange dealers listed in the descending order of their appearance on the Dealer List as shall be necessary to obtain the three bids as required by Section 3 hereof, or (c) in the absence of bids under subsection (a) or (b) above, such other firms located in The City of New York as the Bank shall advise the Exchange Rate Agent from time to time in writing. Nothing contained herein shall be considered to prohibit the Exchange Rate Agent from serving as a Recognized Foreign Exchange Dealer.
8. Notices. Any notice required to be given hereunder shall be delivered in person, sent by letter, first class mail, email, fax or communicated by telephone (subject, in the case of communication by telephone, to confirmation dispatched within two Business Days by letter, first class mail, or fax), in the case of (a) the Bank, Bank of Montreal, 100 King Street West, 1 First Canadian Place, 10th Floor, Toronto, Ontario, Canada M5X 1A1, e-mail: CorporateWholesaleFunding@bmo.com, telephone: (416) 927-5503, fax: 416-867-7193, Attn: Gabriel Wong, and in the case of the Exchange Rate Agent, BMO Capital Markets Corp., BMO Capital Markets Corp., 3 Times Square, 28th Floor, New York, NY 10036, e-mail: BMOCMUSLegal@bmo.com, telephone: (212) 885-4000, Attn: Legal Department, or, in any case, to any other address of which the party receiving notice shall have notified the party giving such notice in writing. Any notice hereunder given by telecopy or letter, first-class mail, shall be deemed to be served when in the ordinary course of transmission or post, as the case may be, it would be received.
9. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York.
10. Counterparts. This Agreement may be executed by each of the parties hereto in any number of counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all such counterparts shall together constitute one and the same agreement.
11. Benefit of Agreement. This Agreement is solely for the benefit of the parties hereto and their successors and assigns, and no other person shall acquire or have any rights under or by virtue hereof.
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IN WITNESS WHEREOF, this Exchange Rate Agency Agreement has been entered into as of the day and year first above written.
| BANK OF MONTREAL | ||
| By: | /s/ Caroline Dufaux | |
| Name: Caroline Dufaux | ||
| Title: Head, Capital Management and Funding | ||
| BMO CAPITAL MARKETS CORP., as the Exchange Rate Agent | ||
| By: | /s/ Brad Rothbaum | |
| Name: Brad Rothbaum | ||
| Title: Managing Director and Head, U.S. Global Markets | ||
[Signature Page to Exchange Rate Agency Agreement]