Bank Of Montreal /Can/ 6-K, filed Mar 8, 2024
Bank Of Montreal /Can/ (BMO)
About this 6-K
Bank Of Montreal /Can/ filed this 6-K on March 8, 2024.
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: March, 2024 | Commission File Number: 001-13354 |
BANK OF MONTREAL
(Name of Registrant)
| 100 King Street West 1 First Canadian Place Toronto, Ontario Canada, M5X 1A1 |
129 rue Saint-Jacques Montreal, Quebec Canada, H2Y 1L6 | |
| (Executive Offices) | (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 ☒
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. 333-264388 |
EXHIBIT INDEX
| Exhibit | Description of Exhibit | |
| 1.1 | Underwriting Agreement, dated February 29, 2024, among Bank of Montreal and BMO Capital Markets Corp., Goldman Sachs & Co. LLC, Morgan Stanley & Co. LLC, Barclays Capital Inc., BNP Paribas Securities Corp. and Credit Agricole Securities (USA) Inc., as representatives of the several Underwriters named therein. | |
| 4.1 | Fifth Supplemental Indenture, dated as of March 8, 2024, between the Bank and Computershare Trust Company, N.A., as successor to Wells Fargo Bank, National Association, as Trustee. | |
| 5.1 | Opinion of Sullivan & Cromwell LLP, U.S. counsel to the Bank. | |
| 5.2 | Opinion of Osler, Hoskin & Harcourt LLP, Canadian counsel to the Bank. | |
| 8.1 | Opinion of Sullivan & Cromwell LLP, U.S. tax counsel to the Bank. | |
| 8.2 | Opinion of Torys LLP, Canadian tax counsel to the Bank. | |
| 23.1 | Consent of Sullivan & Cromwell LLP (included in Exhibit 5.1 and 8.1 above). | |
| 23.2 | Consent of Osler, Hoskin & Harcourt LLP (included in Exhibit 5.2 above). | |
| 23.3 | Consent of Torys LLP (included in Exhibit 8.2 above). | |
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 | ||||||
| Date: March 8, 2024 | By: | /s/ Paras Jhaveri | ||||
| Name: | Paras Jhaveri | |||||
| Title: | Global Head, Capital Management and Funding | |||||
Exhibit 1.1
BANK OF MONTREAL
US$1,000,000,000
7.700% Fixed Rate Reset Limited Recourse Capital Notes, Series 4
(Non-Viability Contingent Capital (NVCC))
(Subordinated Indebtedness)
Underwriting Agreement
February 29, 2024
BMO Capital Markets Corp.
Goldman Sachs & Co. LLC
Morgan Stanley & Co. LLC
Barclays Capital Inc.
BNP Paribas Securities Corp.
Credit Agricole Securities (USA) Inc.
as Representatives of the several Underwriters
named in Schedule III 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 to the several underwriters named in Schedule III hereto (individually, an “Underwriter” and collectively, the “Underwriters”), for whom BMO Capital Markets Corp., Goldman Sachs & Co. LLC, Morgan Stanley & Co. LLC, Barclays Capital Inc., BNP Paribas Securities Corp. and Credit Agricole Securities (USA) Inc. (the “Representatives”) are acting as representatives, US$1,000,000,000 aggregate principal amount of the Bank’s 7.700% Fixed Rate Reset Limited Recourse Capital Notes, Series 4 (Non-Viability Contingent Capital (NVCC)) (Subordinated Indebtedness), as described in Schedule I-1 hereto (the “Notes”).
The Notes will be issued under a subordinated debt securities indenture dated as of December 12, 2017 (the “Base Indenture”) between the Bank and Computershare Trust Company, N.A. as successor to Wells Fargo Bank, National Association, as trustee (the “Trustee”), as amended and supplemented by the fifth supplemental indenture to be dated as of March 8, 2024 (the “Fifth Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), between the Bank and the Trustee.
In addition, the Bank will create, authorize and issue to Computershare Trust Company of Canada, in its capacity as trustee (the “Limited Recourse Trustee”) of BMO LRCN Trust (the “Limited Recourse Trust”), a number of Non-Cumulative 5-Year Fixed Rate Reset Class B Preferred Shares, Series 53 (Non-Viability Contingent Capital (NVCC)) of the Bank, as described in Schedule I-2 hereto (the “Preferred Shares” and, together with the Notes, the “Securities”), and authorize and reserve for issuance a number of common shares of the Bank (“Common Shares”) equal to the number of Common Shares into which the Preferred Shares will be converted upon a Trigger Event (as defined in the terms of the Securities). The Common Shares into which the Preferred Shares may be converted are referred herein as the “Conversion Shares.”
The Bank has filed with the Securities and Exchange Commission (the “Commission”) a registration statement (No. 333-264388) on Form F-3 for the registration under the Securities Act of 1933, as amended (the “Securities Act”), of, among other securities, the Securities and the Conversion Shares. 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 Securities 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”; the Basic Prospectus, as supplemented by the preliminary prospectus supplement dated February 29, 2024 relating to the Securities filed with the Commission pursuant to Rule 424 under the Securities Act is hereinafter called the “Preliminary Prospectus”; the various parts of such registration statement, including all exhibits thereto but excluding Forms 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 Securities 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 Basic Prospectus, as supplemented by the final prospectus supplement dated February 29, 2024 relating to the Securities in the form in which it will be filed, or transmitted for filing, with the Commission, 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 Securities Act, as of the date of such prospectus; any reference to any amendment or supplement to the Basic Prospectus, the Preliminary Prospectus, the Pricing Disclosure Package or the Prospectus shall be deemed to refer to and include 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, the Preliminary Prospectus, the Pricing Disclosure Package or the Prospectus, as the case may be. The term “Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act, of the Bank relating to the Securities. The term “Applicable Time” means 3:50 p.m. on February 29, 2024. The term “Pricing Disclosure Package” means the Preliminary Prospectus, together with any Issuer Free Writing Prospectus identified on Schedule II hereto.
1. Representations and Warranties. The Bank represents and warrants to, and agrees with, each Underwriter that:
(a) The Bank meets the requirements for use of Form F-3 under the Securities 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 Closing Date (as defined below), will conform, in all material respects with the requirements of the Securities 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 Closing 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, on its date and as amended or supplemented as of the Closing 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), 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 the Representatives expressly for use in the preparation thereof, it being understood and agreed that the only such information furnished by any Representative is the Underwriter Information (as defined below), or (B) those parts of the Registration Statement that constitute Statements of Eligibility (Forms T-1) under the Trust Indenture Act;
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(c) None of (i) the Pricing Disclosure Package as of the Applicable Time and (ii) any Issuer Free Writing Prospectus identified in Schedule II hereto or any electronic roadshow that is a written communication within the meaning of Rule 433 under the Securities Act made to investors by the Bank in connection with the offering of the Securities (“Roadshow”), each taken together with the Pricing Disclosure Package, as of the Applicable Time, included any untrue statement of a material fact or omitted 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 this Section 1(c) shall not apply to statements or omissions made in the Pricing Disclosure Package or any Issuer Free Writing Prospectus or Roadshow in reliance upon and in conformity with information furnished in writing to the Bank by the Representatives expressly for use therein, it being understood and agreed that the only such information furnished by any Representative is the Underwriter Information; no Issuer Free Writing Prospectus conflicts with the information contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus;
(d) The documents incorporated by reference in the Registration Statement, the Pricing Disclosure Package and 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 Securities 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 Registration Statement, the Pricing Disclosure Package and the Prospectus, 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 Securities 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) (the “Bank Act”), and has the requisite corporate power and authority to own, lease and operate its properties, to authorize and issue securities as contemplated hereunder, and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus 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 Securities Act. Any Issuer Free Writing Prospectus that the Bank is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities 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 Securities Act complies or will comply, in all material respects, with the requirements of the Securities 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 Registration Statement, the Pricing Disclosure Package and the Prospectus there has not been (i) any material change in the share capital (other than as occasioned by Common Shares 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 Registration Statement and the Pricing Disclosure Package (any such change described in clause (ii) is referred to as a “Material Adverse Change”);
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(h) This Agreement has been duly authorized, executed and delivered by the Bank;
(i) All actions required to be taken by or on behalf of the Bank, including the passing of all requisite resolutions of its directors, have occurred so as to validly authorize, issue and sell the Securities and to validly authorize and reserve for issuance the Conversion Shares as contemplated by this Agreement, and duly, punctually and faithfully perform all the obligations to be performed by it under this Agreement.
(j) Each of the Base Indenture and the Fifth Supplemental Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized by the Bank and, when executed and delivered by the Bank, and assuming the due authorization, execution and delivery thereof by the Trustee, will constitute a legal, valid and 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 and the Notes will conform in all material respects to the descriptions thereof in the Pricing Disclosure Package and the Prospectus;
(k) The Notes have been duly authorized by the Bank and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will constitute legal, valid and binding obligations of the Bank, enforceable in accordance with their 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 Notes will be entitled to the benefits of the Indenture;
(l) The Preferred Shares have been duly authorized by the Bank and, when issued and delivered to the Limited Recourse Trustee, will be validly issued, fully paid and non-assessable; and the Preferred Shares will conform in all material respects to the description thereof contained in the Pricing Disclosure Package and the Prospectus;
(m) The Conversion Shares into which the Preferred Shares may be converted upon the occurrence of a Trigger Event have been duly and validly authorized and reserved by the Bank, and, when issued upon conversion of the Preferred Shares in accordance with the terms of the Preferred Shares will be fully paid and non-assessable, and the issuance of the Conversion Shares will not be subject to any preemptive right, right of first refusal or other similar rights to subscribe for purchase securities of the Bank; and the Conversion Shares will conform in all material respects to the description thereof contained in the Pricing Disclosure Package and the Prospectus;
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(n) The execution and delivery by the Bank of this Agreement, the Indenture and the Notes, the issue and sale of the Notes, the creation and issue of the Preferred Shares, the authorization and issuance of the Conversion Shares and the compliance by the Bank with all of the provisions of the Securities, the Indenture and this 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 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 for the solicitation of offers to purchase Notes, the issue and sale of the Notes, the creation and issue of the Preferred Shares, the authorization and issuance of the Conversion Shares or the consummation by the Bank of the other transactions contemplated by this Agreement or the Indenture, except (i) 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, (ii) 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 Securities Act or the Trust Indenture Act, (iii) 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 the filing of any required reports of exempt distribution in respect of sales of the Securities in Canada, and (iv) as may be required by the Office of the Superintendent of Financial Institutions (Canada) or any successor thereto, as described in the Pricing Disclosure Package and the Prospectus;
(o) 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, the Pricing Disclosure Package and the Prospectus;
(p) The Bank is not, and after giving effect to the offer and sales of the Notes and issuance of the Preferred Shares 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;
(q) KPMG LLP, auditor of the financial statements incorporated by reference into the Registration Statement, the Pricing Disclosure Package and the Prospectus, 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 Securities Act and the rules and regulations thereunder and the applicable Canadian securities laws;
(r) The Bank’s consolidated financial statements included or incorporated by reference in the Registration Statement, the Prospectus and the Pricing Disclosure Package, together with the related schedules and notes comply in all material respects with the applicable requirements of the Securities 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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(s) 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;
(t) 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), the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) and the applicable anti-money laundering statutes of other 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
(u) (i) The Bank represents that neither the Bank nor any of its subsidiaries (collectively, the “Entity”) nor, 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, His 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, the Ukrainian regions of Crimea, Kherson, Zaporizhzhya, Donetsk and Luhansk, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Bank represents and covenants that it will not, directly or indirectly, use the proceeds of the offering of Notes, 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).
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Bank agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Bank, at the purchase price set forth in Schedule III hereto, the amount of the Notes set forth opposite such Underwriter’s name in Schedule III hereto (each such amount, a “Purchase Price”).
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(b) In consideration of the Underwriters’ agreement to solicit offers to purchase the Notes provided for herein, and in consideration of the contemplated services to be rendered by the Underwriters in connection therewith, the Bank agrees to pay to each Underwriter a fee (the “Underwriters’ Fee”) as set forth in Schedule III hereto.
3. Delivery and Payment.
(a) Delivery of and payment for the Notes shall be made on the date and at the time specified in Schedule III hereto or at such time on such later date not more than three Business Days after the foregoing date as the Representatives shall designate, which date and time may be postponed by agreement between the Representatives and the Bank or as provided in Section 10 hereof. The time and date of such payment are herein referred to as the “Time of Delivery” and such date, the “Closing Date.” Delivery of the Notes shall be made to the Representatives for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representatives of the applicable Purchase Price thereof to or upon the order of the Bank by wire transfer payable in same-day funds to an account specified by the Bank. Delivery of the Notes shall be made through the facilities of The Depository Trust Company unless the Representatives shall otherwise instruct.
(b) Payment of the Underwriters’ Fee will be made at the Time of Delivery and be set-off by the Underwriters from the Purchase Price deliverable at the Time of Delivery.
4. Agreements. The Bank covenants and agrees with each Underwriter as follows:
(a) (i) To prepare the Prospectus in a form approved by the Underwriters (such approval not to be unreasonably withheld or delayed) and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; (ii) to make no amendment or supplement (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 Securities Act relating to securities other than the Notes purchased by the Underwriters and the Preferred Shares) to the Registration Statement, the Pricing Disclosure Package or the Prospectus prior to the Time of Delivery without having afforded the Representatives a reasonable opportunity to review such amendment or supplement; (iii) to prepare (A) an Issuer Free Writing Prospectus that is a final term sheet relating to the Notes in the form set forth in Schedule I-1 hereto and (B) an Issuer Free Writing Prospectus that is a final term sheet relating to the Preferred Shares in the form set forth in Schedule I-2 hereto, and to file such term sheets pursuant to Rule 433(d) under the Securities Act within the time required by such rule; (iv) to file promptly all other material required to be filed by the Bank with the Commission pursuant to Rule 433(d) under the Securities Act; (v) to file promptly all reports and any definitive proxy or information statements required to be filed by the Bank with the Commission pursuant to Sections 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 the Underwriters, promptly after it receives notice thereof, (1) of the time when any amendment to the Registration Statement has been filed or becomes effective with 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 Securities Act relating to securities other than the Notes purchased by the Underwriters and the Preferred Shares) or any supplement to the Prospectus or the Pricing Disclosure Package has been filed with the Commission or, (2) of the issuance by the Commission or any Canadian securities authorities of any stop order or of any order preventing or suspending the use of the Registration Statement, the Pricing Disclosure Package or the Prospectus, (3) 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 (4) of any request by the Commission or any Canadian securities authorities to amend or supplement the Registration Statement, the Pricing Disclosure Package, or the Prospectus or for additional information; and (vi) in the event of the issuance of any such stop order or of any such order preventing or suspending the use of the Registration Statement, the Pricing Disclosure Package, or the Prospectus or suspending any such qualification, to use promptly its commercially reasonable efforts to obtain its withdrawal;
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(b) That if, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Pricing Disclosure Package as then amended and supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Bank will (i) notify promptly the Representatives so that any use of the Pricing Disclosure Package may cease until it is amended or supplemented; and (ii) amend or supplement the Pricing Disclosure Package to correct such statement or omission and supply any amendment or supplement to the Underwriters in such quantities as they may reasonably request (including without limitation by preparing and furnishing to the Underwriters the Prospectus);
(c) To furnish the Underwriters with copies of the Registration Statement and each amendment thereto, the Preliminary Prospectus and the Prospectus, in the form in which it is filed with, or transmitted for filing to, the Commission pursuant to Rule 424 under the Securities Act, in such quantities as the Representatives may reasonably request from time to time; and, if the delivery of the Prospectus is required at any time within 90 days after sale of the Notes 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 the 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 Securities Act, the Exchange Act or the Trust Indenture Act, to notify the Representatives as promptly as practicable; and if the Bank shall decide to amend or supplement the Registration Statement or the Prospectus as then amended or supplemented, to so advise the Representatives 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 an Underwriter continues to own Notes purchased from the Bank which such Underwriter proposes to sell, upon the reasonable request of the Representatives, 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 Prospectus and if after such 90-day period, by the Underwriters;
(d) That, unless it has or shall have obtained the prior written consent of the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Bank with the Commission or retained by the Bank under Rule 433; provided that such prior written consent shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses included in Schedule II hereto and any Roadshow. Any such free writing prospectus consented to by the Representatives or the Bank is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Bank agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping;
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(e) That, during the period beginning on the date hereof and continuing to and including the Closing Date, the Bank will not, without the prior consent (such consent not to be unreasonably withheld or delayed) of the Representatives, offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any securities of the Bank that are substantially similar to the Notes;
(f) To consider any request by the Representatives to qualify the Notes for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request;
(g) To use its commercially reasonable efforts to list or obtain approval for listing, within 30 days from the Closing Date, subject to notice of issuance, if applicable, the Conversion Shares on the Toronto Stock Exchange (the “TSX”) and the New York Stock Exchange (the “NYSE”). The Bank will use its commercially reasonable efforts to maintain the listing of the Conversion Shares on the TSX and the NYSE;
(h) At all times, to reserve and keep available, free of preemptive rights, enough Common Shares for the purpose of enabling the Bank to satisfy its obligations to issue the Conversion Shares upon conversion of the Preferred Shares;
(i) Not to take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Bank to facilitate the sale or resale of the Notes; and
(j) To 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 and the Conversion Shares under the Securities Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, the Preliminary Prospectus, the Prospectus and any Issuer Free Writing Prospectus and all other amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters; (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 Blue Sky and legal investment memoranda and any other documents in connection with the offering, purchase, sale and delivery of the Securities and the Conversion Shares; (iii) all expenses in connection with the qualification of the Notes for offering and sale under state securities laws as provided in Section 4(f) hereof, including fees and disbursements of the Bank’s counsel and reasonable fees and disbursements of the Underwriters’ 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 Notes by the Financial Industry Regulatory Authority and any filing fees payable to the Canadian securities authorities in connection with the filing of all required exempt distribution reports, and the legal fees relating to the preparation and filing of such reports; (iv) any fees charged by security rating services for rating the Securities; (v) all fees and expenses in connection with listing the Conversion Shares on applicable stock exchanges; (vi) the cost of preparing the Securities; (vii) (A) 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 Notes and (B) the fees and expenses of the Limited Recourse Trustee and any agent of the Limited Recourse Trustee and the fees and disbursements of counsel for the Limited Recourse Trustee in connection with the Limited Recourse Trust, the Notes, the Preferred Shares, the Conversion Shares and any related matters; (viii) any advertising expenses connected with the solicitation of offers to purchase and the sale of Notes so long as such advertising expenses have been pre-approved by the Bank; (ix) 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 Notes, 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; (x) the cost and charges of any transfer agent or registrar; (xi) all reasonable costs and expenses related to the transfer and delivery of the Notes to the Underwriters, including any transfer or other similar taxes payable thereon; and (xii) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section 4. It is understood, however, that except as provided in this Section 4 and Section 7 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel.
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5. Offering by the Underwriters.
(a) It is understood that the several Underwriters propose to offer the Notes for sale to the public as set forth in the Prospectus and this Agreement;
(b) Each Underwriter severally represents and agrees with the Bank that, unless it has or shall have obtained the prior written consent of the Bank, it has not made and will not make any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Bank with the Commission or retained by the Bank under Rule 433; provided that such prior written consent shall be deemed to have been given in respect of the Permitted Free Writing Prospectus and any Roadshow;
(c) Each Underwriter severally represents and agrees with the Bank that any offer or sale of the Notes purchased by it hereunder in Canada or to any resident of Canada shall be effected on a private placement basis in accordance with applicable exemptions under the applicable securities laws in the relevant jurisdiction, including any requirement that such Underwriter represent and agree that (A) it has not offered, sold, distributed or delivered, and that such Underwriter will not offer, sell, distribute or deliver, any Notes purchased by it hereunder, directly or indirectly in Canada or to any person that is resident in any province or territory of Canada for the purposes of securities laws applicable therein (including any corporation or other entity organized under the laws of any jurisdiction in Canada), except pursuant to an available exemption from the prospectus requirements and registration requirements of, or otherwise in compliance with, the securities laws applicable in any of the provinces or territories of Canada; and (B) it will not distribute or deliver the Prospectus or Prospectus Supplement or any other offering material relating to Notes purchased by it hereunder, in Canada in contravention of the securities laws or regulations of any province or territory of Canada;
(d) Each Underwriter 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 Notes may be offered, sold, resold or delivered; and
(e) Each Underwriter severally represents and agrees with the Bank that will promptly advise the Bank upon the completion of the distribution of the offering of the Notes.
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6. Conditions to the Obligations of the Underwriters. The several obligations of the Underwriters to purchase the Notes hereunder shall be subject to the condition that all representations and warranties and other statements of the Bank herein are true and correct at and as of the Closing Date and the Time of Delivery, to the condition that the Bank shall have performed all of its obligations hereunder theretofore in each case to be performed, and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); and any other material required to be filed by the Bank pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433;
(b) 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 the Representatives;
(c) The Underwriters shall have received, upon request of the Representatives, from Shearman & Sterling LLP, United States counsel to the Underwriters, such opinion and letter, dated the Closing Date, with respect to matters related to the Registration Statement, the Pricing Disclosure Package and the Prospectus and such other matters as the Underwriters may request in their reasonable judgment, and the Bank shall have furnished to such counsel such documents as such counsel requests in its reasonable judgment for the purpose of enabling such counsel to pass upon such matters;
(d) The Underwriters shall have received an opinion and letter of Sullivan & Cromwell LLP, United States counsel for the Bank, or other counsel satisfactory to the Representatives in their reasonable judgment, dated the Closing Date, to the effect set forth in Annex I hereto;
(e) The Underwriters shall have received an opinion of Osler, Hoskin & Harcourt LLP, Canadian counsel for the Bank, or other counsel satisfactory to the Representatives in their reasonable judgment, dated the Closing Date, to the effect set forth in Annex II hereto;
(f) The Underwriters shall have received an opinion of Torys LLP, Canadian tax counsel for the Bank, or other counsel satisfactory to the Representatives in their reasonable judgment, dated the Closing Date, to the effect set forth in Annex III hereto;
(g) KPMG LLP, the independent registered public accounting firm which audited the financial statements of the Bank and its subsidiaries included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, shall have furnished to the Underwriters, on the date of this Agreement and at the Closing Date, letters, (which may refer to letters previously delivered to the Underwriters), dated respectively as of the date of this Agreement and as of the Closing Date (with a “cut-off” date no more than two business days prior to the date of such letter), in form and substance satisfactory to the Underwriters, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus;
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(h) The Bank shall have furnished or caused to be furnished to the Underwriters a certificate of any Vice Chairman, any Executive or Senior Vice President, any Executive Managing Director, any Vice President, any Head, Capital Management or any principal financial or accounting officer of the Bank, dated the Closing Date, 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 (i) the representations and warranties of the Bank contained in Section 1 hereof are true and correct, as of the Closing Date, (ii) the Bank has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under this Agreement at or prior to the Closing Date, (iii) 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 (iv) since the respective dates as of which information is given in the Pricing Disclosure Package and the Prospectus (exclusive of any amendments or supplements thereto made subsequent to the date hereof), there has not been any Material Adverse Change, otherwise than as set forth or contemplated in the Pricing Disclosure Package and the Prospectus (exclusive of any amendments or supplements thereto made subsequent to the date hereof);
(i) Subsequent to the date of this Agreement or, if earlier, the dates as of which information is given in the Pricing Disclosure Package and the Prospectus, there shall not have been any Material Adverse Change, except as set forth in or contemplated in the Prospectus (exclusive of any amendment or supplement thereto made subsequent to the date hereof) and the Pricing Disclosure Package the effect of which, is, in the reasonable judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the purchase and public offering of the Notes on the terms and in the manner contemplated in the Prospectus (exclusive of any amendment or supplement thereto made subsequent to the date hereof) and the Pricing Disclosure Package; and
(j) The Underwriters shall have received such other opinions, certificates and documents as may be reasonably requested by them and agreed by the Bank prior to the date of this Agreement.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives when and as required to be delivered, this Agreement and all obligations of the Underwriters to purchase the Notes hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Bank in writing or by telephone or facsimile confirmed in writing.
7. Indemnification and Contribution. (a) The Bank will indemnify and hold harmless each Underwriter, and each person, if any, who controls any of the Underwriters within the meaning of the Securities Act, against any losses (other than loss of profits), claims, damages or liabilities, joint or several, to which such Underwriter or such controlling person may become subject, under the Securities 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 the Registration Statement, the Preliminary Prospectus, the Pricing Disclosure Package or the Prospectus, each as amended or supplemented, or any Issuer Free Writing Prospectus, including the Roadshow, 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 Underwriter 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 the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, 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 Underwriter through the Representatives expressly for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the Underwriter Information.
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(b) Each Underwriter, 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 Securities Act, against any losses, claims, damages or liabilities to which the Bank or such controlling person may become subject, under the Securities 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 the Registration Statement, the Preliminary Prospectus, 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 the Registration Statement, the Preliminary Prospectus, 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 Underwriter through the Representatives 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. The Bank acknowledges and agrees that the information set forth under “Supplemental Plan of Distribution (Conflicts of Interest)” beginning on page S-70 of the Preliminary Prospectus in the first and second sentences of the third paragraph thereon with respect to the selling concession and reallowance to certain dealers, in the sixth paragraph thereon with respect to stabilization of market prices and in the third and fourth sentences of the seventh paragraph thereon with respect to market making activities of the Underwriters (collectively, the “Underwriter Information”) has been provided by the Underwriters to the Bank for use in the Preliminary Prospectus and the Prospectus and constitutes the only information furnished in writing by or on behalf of the several Underwriters for inclusion in the Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus.
(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 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 Underwriters in the case of parties indemnified pursuant to Section 7(a) hereof and by the Bank in the case of parties indemnified pursuant to Section 7(b) hereof. 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.
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(d) If the indemnification provided for in this Section 7 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 Underwriter on the other from the sale of the Notes 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 Underwriter 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 Underwriter on the other shall be deemed to be in the same proportion as the total net proceeds from the sale of the Notes (before deducting expenses) received by the Bank bear to the total discounts and commissions received by such Underwriter 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 Underwriter 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 Underwriter 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 Underwriter shall not be required to contribute any amount in excess of the amount by which the total discounts and commissions received by it exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and all obligations of the Underwriters to contribute shall be several and not joint. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities 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.
(e) The obligations of the Bank under this Section 7 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 Underwriter within the meaning of the Securities Act; and the obligations of each Underwriter under this Section 7 shall be in addition to any liability which such Underwriter 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 Securities Act.
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8. Representations and Indemnities to Survive. The respective indemnities, agreements, representations, warranties and other statements by any Underwriter 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 Underwriter or the Bank or any of its officers or directors or any controlling person, and will survive the delivery of and payment for the Notes.
9. Termination. The Representatives may terminate this Agreement by notice given to the Bank, prior to delivery and payment for the Notes, if at any time after the execution and delivery of this Agreement and prior to such payment and delivery: (i) there shall have occurred any suspension or material limitation in trading in securities generally on the NYSE or the TSX 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 Underwriters of the Notes; (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 Agreement; (iv) trading is suspended in the Bank’s securities on the NYSE or the TSX; (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, a division of The 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 Notes by the Underwriters, on the terms and in the manner contemplated in the Pricing Disclosure Package, as amended or supplemented.
10. Default by an Underwriter. If, on the Closing Date, any one or more of the Underwriters shall fail or refuse to purchase Notes that it has or they have agreed to purchase hereunder on such date, and the aggregate principal amount of Notes which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate principal amount of the Notes to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the principal amount of Notes set forth opposite their respective names in Schedule III bears to the aggregate principal amount of Notes set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as the Representatives may specify, to purchase the Notes which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the principal amount of Notes that any Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 10 by an amount in excess of one-ninth of such principal amount of Notes without the written consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Notes and the aggregate principal amount of Notes with respect to which such default occurs is more than one-tenth of the aggregate principal amount of Notes to be purchased on such date, and arrangements satisfactory to the Representatives and the Bank for the purchase of such Notes are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter or the Bank. In any such case either the Representatives or the Bank shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement, the Pricing Disclosure Package or the Prospectus, as amended or supplemented, if applicable, or in any other documents or arrangements may be effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
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11. Notices. Except as otherwise specifically provided herein, all statements, requests, notices and advices hereunder shall be in writing, or by telephone if promptly confirmed in writing, and if to the Representatives, shall be sufficient in all respects when delivered or sent by facsimile transmission or registered mail as set forth in Annex IV hereto under such Representative’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: Senior Vice President and 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.
12. Successors. This Agreement shall be binding upon, and inure solely to the benefit of, each Underwriter and the Bank, and to the extent provided in Section 7 and Section 8 hereof, the officers and directors of the Bank and any person who controls any Underwriter or the Bank and an affiliate of an Underwriter, 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. No purchaser of any of the Notes through or from any Underwriter hereunder shall be deemed a successor or assign by reason of such purchase.
13. No fiduciary duty. The Bank acknowledges and agrees that (i) the purchase and sale of the Notes pursuant to this Agreement is an arm’s-length commercial transaction between the Bank, on the one hand, and the Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Bank, (iii) no Underwriter 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 Underwriter 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 Underwriters 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 Underwriters, or any of them, have 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.
14. Integration. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Bank and the Underwriters, or any of them, with respect to the subject matter hereof.
15. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
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16. Submission to jurisdiction; authorized agent. The Bank irrevocably (i) agrees that any legal suit, action or proceeding against the Bank brought by any Underwriter or by any person who controls any Underwriter arising out of or based upon this 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 the transactions contemplated hereby and thereby that is instituted in any New York Court. The Bank has appointed BMO Capital Markets Corp., 151 West 42nd Street, 32nd 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 that may be instituted in any New York Court by any Underwriter or by any person who controls any Underwriter, 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 16 shall apply to any legal action, suit or proceeding arising out of or based upon United States federal securities laws.
17. Waiver of Jury Trial. The Bank and each Underwriter hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
18. Judgment currency. 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 Underwriters 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 Underwriter or any person controlling any Underwriter shall, notwithstanding any judgment in a currency other than United States dollars, not be discharged until the first Business Day following receipt by such Underwriter or controlling person of any sum in such other currency, and only to the extent that such Underwriter 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 Underwriter or controlling person hereunder, the Bank agrees as a separate obligation and notwithstanding any such judgment, to indemnify such Underwriter or controlling person against such loss. If the United States dollars so purchased are greater than the sum originally due to such Underwriter or controlling person hereunder, such Underwriter 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 Underwriter or controlling person hereunder.
19. Definitions. 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, New York or Toronto, Ontario.
20. Counterparts. This 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. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or other electronic transmission (i.e., a “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart thereof.
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21. Headings. The section headings used herein are for convenience only and shall not affect the construction hereof.
22. USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters 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 Underwriters to properly identify their respective clients.
23. U.S. Special Resolution Regime. In the event that any Underwriter 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 Underwriter of this Underwriting Agreement, and any interest and obligation in or under this Underwriting Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Underwriting Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
In the event that any Underwriter is a Covered Entity or a BHC Act Affiliate (as defined below) of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined below) under this Underwriting Agreement that may be exercised against such Underwriter 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 Underwriting Agreement were governed by the laws of the United States or a state of the United States.
For purposes of the prior two paragraphs:
“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.
-18-
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/ Paras Jhaveri | |
| Name: Paras Jhaveri | ||
| Title: Global Head, Capital Management and Funding | ||
[Signature Page to Underwriting Agreement]
| The foregoing Agreement is hereby confirmed and accepted as of the date first above written. | ||
| BMO CAPITAL MARKETS CORP. | ||
| By: | /s/ Zain Leela | |
| Name: Zain Leela | ||
| Title: Director | ||
| GOLDMAN SACHS & CO. LLC | ||
| By: | /s/ Rishi Mathur | |
| Name: Rishi Mathur | ||
| Title: Managing Director | ||
| MORGAN STANLEY & CO. LLC | ||
| By: | /s/ Howard Brocklehurst | |
| Name: Howard Brocklehurst | ||
| Title: Managing Director | ||
| BARCLAYS CAPITAL INC. | ||
| By: | /s/ Kenneth Chang | |
| Name: Kenneth Chang | ||
| Title: Managing Director | ||
| BNP PARIBAS SECURITIES CORP. | ||
| By: | /s/ Lestocq Orman | |
| Name: Lestocq Orman | ||
| Title: Director | ||
| CREDIT AGRICOLE SECURITIES (USA) INC. | ||||||||
| By: | /s/ Nicholas Leopardi | By: | /s/ Ivan Hrazdira | |||||
| Name: Nicholas Leopardi | Name: Ivan Hrazdira | |||||||
| Title: Managing Director | Title: Managing Director | |||||||
For themselves and the other several Underwriters
named in Schedule III to the foregoing Agreement
Schedule I-1
Pricing Term Sheet
Bank of Montreal
US$1,000,000,000
7.700% Fixed Rate Reset Limited Recourse Capital Notes, Series 4
(Non-Viability Contingent Capital (NVCC))
(Subordinated Indebtedness)
| Issuer: | Bank of Montreal (the “Bank”) | |
| Issue: | 7.700% Fixed Rate Reset Limited Recourse Capital Notes, Series 4 (Non-Viability Contingent Capital (NVCC)) (Subordinated Indebtedness) (the “Notes”) | |
| Expected Credit Ratings*: | [intentionally omitted] | |
| Format: | SEC Registered | |
| Principal Amount: | US$1,000,000,000 | |
| Price to Public (Issue Price): | 100.000% | |
| Underwriting Commission: | 1.000% per Note | |
| Net Proceeds to the Bank after Underwriting Commission and Before Expenses: | US$990,000,000 | |
| Trade Date: | February 29, 2024 | |
| Issue Date: | March 8, 2024 (T+6) (the “Issue Date”) | |
| Initial Interest Reset Date: | May 26, 2029 (the “Initial Interest Reset Date”) | |
| Maturity Date: | May 26, 2084 (60 years) | |
| Interest Reset Dates: | May 26, 2029 and each fifth anniversary date thereafter occurring prior to and not including the Maturity Date (each such date, an “Interest Reset Date”). | |
| Interest: | The Notes will bear interest on their principal amount (i) from and including the Issue Date to, but excluding, the Initial Interest Reset Date, at a rate of 7.700% per annum and (ii) during each Rate Reset Period (as defined in the Prospectus Supplement), at a rate per annum equal to the U.S. Treasury Rate (as defined in the Prospectus Supplement) on the applicable Interest Rate Calculation Date (as defined below) plus 3.452%.
For each Rate Reset Period, the U.S. Treasury Rate will be determined by the calculation agent on the third business day immediately preceding the applicable Interest Reset Date (each such date, an “Interest Rate Calculation Date”). | |
SCHEDULE I-1-1
| The interest rate on the Notes will in no event be higher than the maximum rate permitted by New York law as the same may be modified by United States law of general application. In no event will the interest rate on the Notes be less than zero. | ||
| Interest Payment Dates: | Quarterly on February 26, May 26, August 26 and November 26 of each year (each, an “Interest Payment Date”), beginning on May 26, 2024 (short first coupon). | |
| Interest Deferability: | Interest payments are non-deferrable.
On any Failed Coupon Payment Date (as defined below), the principal amount of, and any accrued and unpaid interest on, all outstanding Notes will become immediately due and payable by the Bank, subject to the limited recourse feature described below. Upon delivery to all holders of Notes (the “Noteholders”) of their proportionate share of the Trust Assets (as defined below) following any Failed Coupon Payment Date in accordance with the limited recourse feature described below, all Notes will cease to be outstanding and each Noteholder will cease to be entitled to interest thereon. See “Limited Recourse” below.
“Failed Coupon Payment Date” means the fifth business day immediately following an Interest Payment Date upon which the Bank does not pay interest on the Notes and has not cured such non-payment by subsequently paying such interest prior to such fifth business day. | |
| Initial Benchmark Treasury: | UST 4.250% due February 28, 2029 | |
| Initial Benchmark Treasury Yield: | 4.248% | |
| Initial Re-Offer Spread to Benchmark Treasury: | +345.2 bps | |
| Initial Re-Offer Yield: | 7.700% | |
| Day Count / Business Day Convention: | 30/360; Following, Unadjusted | |
| Redemption: | The Notes may be redeemed, at the option of the Bank, with the prior written approval of the Superintendent of Financial Institutions (Canada) (the “Superintendent”) and without the consent of the Noteholders, in whole or in part, on not less than 10 days’ and not more than 60 days’ prior notice to the registered Noteholders, on the Initial Interest Reset Date and on each February 26, May 26, August 26 and November 26 thereafter, at the Redemption Price (as defined below) (an “Optional Redemption”).
The Bank may also, at its option, with the prior written approval of the Superintendent and without the consent of the Noteholders, redeem the Notes, in whole but not in part, on not less than 10 days’ and not more than 60 days’ prior notice to the registered Noteholders (i) at any time following a Regulatory Event Date (as defined in the Prospectus Supplement), or (ii) at any time following the occurrence of a Tax Event Date (as defined in the Prospectus Supplement), in each case at the Redemption Price (a “Special Event Redemption”). | |
SCHEDULE I-1-2
| Upon any redemption by the Bank of the Non-Cumulative 5-Year Fixed Rate Reset Class B Preferred Shares, Series 53 (Non-Viability Contingent Capital (NVCC)) (the “Preferred Shares”) held in the Limited Recourse Trust (as defined below) in accordance with their terms prior to the Maturity Date (such redemption will be subject to the prior written approval of the Superintendent), outstanding Notes with an aggregate principal amount equal to the aggregate face amount of Preferred Shares redeemed by the Bank pursuant to such redemption shall automatically and immediately be redeemed, on a full and permanent basis, for a cash amount equal to the Redemption Price, without any action on the part of, or the consent of, the Noteholders. See the Pricing Term Sheet for the Preferred Shares attached hereto (the “Preferred Share Term Sheet”) for circumstances under which the Preferred Shares may be redeemed by the Bank. For certainty, to the extent that, in accordance with the terms of the Indenture (as defined in the Prospectus Supplement), the Bank has immediately prior to or concurrently with such redemption of Preferred Shares redeemed or purchased for cancellation outstanding Notes with an aggregate principal amount equal to the aggregate face amount of Preferred Shares being redeemed such requirement to redeem a corresponding number of Notes shall be deemed satisfied.
The Bank will not redeem the Notes under any circumstances if such redemption would, directly or indirectly, result in the Bank’s breach of any provision of the Bank Act (Canada) (the “Bank Act”) or the guidelines for capital adequacy requirements for banks in Canada of the Office of the Superintendent of Financial Institutions (Canada) (“OSFI”), as may be amended from time to time (the “CAR Guideline”).
“Redemption Price” of the Notes means the aggregate of (i) the principal amount thereof, plus (ii) any accrued and unpaid interest thereon up to, but excluding, the date fixed for redemption. | ||
| Limited Recourse: | If (i) a Failed Coupon Payment Date occurs, (ii) on the Maturity Date, the Bank does not pay the aggregate principal amount of the Notes, together with any accrued and unpaid interest thereon, in cash, (iii) an Event of Default occurs, (iv) in connection with the redemption of the Notes, on the date fixed for such redemption, the Bank does not pay the Redemption Price in cash, or (v) a Trigger Event occurs (each such event, a “Recourse Event”), while a Noteholder will have a claim against the Bank for the principal amount of the Notes and any accrued and unpaid interest thereon (which will then be due and payable), the Noteholder’s sole recourse in respect of such claim will be limited to such Noteholder’s proportionate share of the assets (the “Trust Assets”) held by a third party trustee (the “LRT Trustee”) in respect of the Notes in the BMO LRCN Trust (the “Limited Recourse Trust”). The LRT Trustee will hold assets in the Limited Recourse Trust in respect of more than one series of limited recourse capital notes and the assets (including the Bank’s preferred shares) for each such series will be held separate from the assets for other series. Computershare Trust Company of Canada will act as the LRT Trustee.
Initially, at the time of issuance of the Notes, the Trust Assets will consist of Preferred Shares issued on or before the Issue Date at an issue price equal to the Canadian Dollar Equivalent (as defined in the Preferred Share Term Sheet) of US$1,000 per Preferred Share. Following the issuance of the Notes, the Trust Assets may consist of (i) Preferred Shares (or proceeds with | |
SCHEDULE I-1-3
| respect to the subscription for units of the Limited Recourse Trust by the Bank, which are to be used by the Limited Recourse Trust to subscribe for Preferred Shares), (ii) cash if the Preferred Shares are redeemed for cash, or purchased for cancellation, by the Bank with the prior written approval of the Superintendent (other than the portion of such cash in respect of any declared and unpaid dividends), (iii) common shares of the Bank (“Common Shares”) issued upon the conversion of the Preferred Shares into Common Shares as a result of a Trigger Event (other than any Dividend Common Shares (as defined below), if any), or (iv) any combination thereof, depending on the circumstances. At no time shall the Trust Assets include any dividends paid on the Preferred Shares, any right to receive declared, but unpaid, dividends on the Preferred Shares or any Dividend Common Shares.
The number of Preferred Shares issued on or before the Issue Date will be equal to the total principal amount of the Notes divided by US$1,000. If the Trust Assets consist solely of Preferred Shares at the time a Recourse Event occurs, the LRT Trustee will deliver to each Noteholder one Preferred Share for each US$1,000 principal amount of Notes held by such Noteholder, which shall be applied to the payment of the principal amount of the Notes, and such delivery of Preferred Shares will be each Noteholder’s sole remedy against the Bank for repayment of the principal amount of the Notes and any accrued but unpaid interest thereon then due and payable.
Upon the occurrence of a Recourse Event that is a Trigger Event, each Noteholder will be entitled to receive such Noteholder’s proportionate share of the Trust Assets and the LRT Trustee will deliver to each Noteholder such Noteholder’s proportionate share of Common Shares issued in connection with the Trigger Event upon the conversion of the Preferred Shares into Common Shares upon the happening of an NVCC Automatic Conversion (as defined below in the Preferred Share Term Sheet) upon the occurrence of such Trigger Event (other than any Dividend Common Shares). The number of Common Shares issuable in connection with the Trigger Event will be calculated based on a Share Value (as defined below in the Preferred Share Term Sheet) of US$1,000 plus declared and unpaid dividends, if any, up to, but excluding, the date of the Trigger Event, expressed in Canadian dollars. The delivery of such Common Shares (other than any Common Shares issued in respect of the portion of the Share Value, if any, equal to any declared and unpaid dividends (the “Dividend Common Shares”), which Dividend Common Shares shall not be delivered to the Noteholders and shall either be retained by the Limited Recourse Trust or sold by the Limited Recourse Trust with the proceeds distributed to the Bank) shall be applied to the payment of the principal amount of the Notes, and such delivery of Common Shares will be each Noteholder’s sole remedy against the Bank for repayment of the principal amount of the Notes and any accrued but unpaid interest thereon then due and payable. See “NVCC Automatic Conversion” below.
The receipt by a Noteholder of such Noteholder’s proportionate share of the Trust Assets upon the occurrence of a Recourse Event shall exhaust the remedies of such Noteholders under the Notes. If a Noteholder does not receive its proportionate share of the Trust Assets under such circumstances, the sole remedy of such Noteholder for any claims against the Bank shall be limited to a claim for the delivery of such Trust Assets. |
SCHEDULE I-1-4
| In case of any shortfall resulting from the value of the Trust Assets being less than the principal amount of and any accrued and unpaid interest on the Notes, all losses arising from such shortfall shall be borne by the Noteholders.
All claims of any Noteholder against the Bank under the Notes will be extinguished upon receipt by such Noteholder of its proportionate share of the Trust Assets. | ||
| NVCC Automatic Conversion: | Upon the occurrence of a Trigger Event, each outstanding Preferred Share will automatically and immediately be converted, on a full and permanent basis, without any action on the part of the holder thereof, into fully-paid and non-assessable Common Shares, the number of which is to be determined in accordance with the NVCC Automatic Conversion Formula (as defined in the Preferred Share Term Sheet). See “NVCC Automatic Conversion” in the Preferred Share Term Sheet for more details.
Immediately following such NVCC Automatic Conversion (as defined in the Preferred Share Term Sheet), pursuant to the limited recourse feature described above, each Noteholder will be entitled to receive such Noteholder’s proportionate share of the Trust Assets and the LRT Trustee will deliver to each Noteholder such Noteholder’s proportionate share of Common Shares issued in connection with the Trigger Event (other than any Dividend Common Shares) upon the conversion of the Preferred Shares into Common Shares upon the happening of an NVCC Automatic Conversion upon the occurrence of such Trigger Event. See “Limited Recourse” above. | |
| Status and Subordination: | The Notes will be direct unsecured subordinated indebtedness of the Bank and rank subordinate to all of the Bank’s deposit liabilities and all of the Bank’s other indebtedness (including all of the Bank’s other unsecured and subordinated indebtedness) from time to time issued and outstanding, except for such indebtedness which by its terms ranks equally in right of payment with, or is subordinate to, the Notes.
Upon the occurrence of a Recourse Event, including a Trigger Event or an Event of Default (as defined below), the recourse of each holder of the Notes will be limited to the holder’s proportionate share of the Trust Assets. The receipt by a Noteholder of its proportionate share of the Trust Assets upon the occurrence of a Recourse Event shall exhaust the remedies of such Noteholder under the Notes. If a Noteholder does not receive its proportionate share of the Trust Assets under such circumstances, the sole remedy of the Noteholder for any claims against the Bank will be limited to a claim for the delivery of such Trust Assets. If the Trust Assets that are delivered to the Noteholders under such circumstances comprise of Preferred Shares or Common Shares, such Preferred Shares or Common Shares will rank on parity with the Bank’s other Class B preferred shares or Common Shares, as applicable.
The Notes will not constitute savings accounts, deposits or other obligations that are insured by the United States Federal Deposit Insurance Corporation, the Deposit Insurance Fund, the Canada Deposit Insurance Corporation or any other governmental agency or under the Canada Deposit Insurance Corporation Act (Canada), the Bank Act or any other deposit insurance regime designed to ensure the payment of all or a portion of a deposit upon the insolvency of the deposit taking financial institution. | |
| Events of Default: | The only events of default under the Notes will be the bankruptcy, insolvency or liquidation of the Bank (each, an “Event of Default”). | |
SCHEDULE I-1-5
| An Event of Default under the Notes will not include any non-payment by the Bank of the principal amount of or interest on the Notes, a default in the performance by the Bank of any other covenant of the Bank contained in the Indenture, or the occurrence of a Trigger Event (including an NVCC Automatic Conversion).
The occurrence of an Event of Default is a Recourse Event for which the sole remedy of the Noteholders will be the delivery of the Trust Assets, and the delivery of the Trust Assets to the Noteholders will exhaust all remedies of such Noteholders in connection with such Event of Default. See “Limited Recourse” above. | ||
| Prohibited Owners: | The terms and conditions of the Notes will contain provisions that will provide the Bank with the right not to deliver some or all, as applicable, of the Preferred Shares or Common Shares (issued upon a Recourse Event) to any person who the Bank or its transfer agent has reason to believe is an Ineligible Person (as defined in the Prospectus Supplement) or any person who, by virtue of that delivery would become a Significant Shareholder (as defined in the Prospectus Supplement). | |
| Purchase for Cancellation: | The Bank may, at any time or from time to time, with the prior written approval of the Superintendent, purchase Notes in the open market or by tender, by private contract or otherwise. Any Notes so purchased will be cancelled by the Bank.
If any Notes are so purchased for cancellation, subject to the provisions of the Bank Act, the consent of the Superintendent and various restrictions on the retirement of Preferred Shares, the Bank shall redeem a corresponding number of Preferred Shares (which Preferred Shares will have a face amount equal to the aggregate principal amount of the Notes to be cancelled) then held in the Limited Recourse Trust. | |
| Use of Proceeds: | The net proceeds will be contributed to the general funds of the Bank and will qualify as Additional Tier 1 capital of the Bank for regulatory purposes. | |
| Joint Book-Running Managers: | BMO Capital Markets Corp. Goldman Sachs & Co. LLC Morgan Stanley & Co. LLC BNP Paribas Securities Corp. Credit Agricole Securities (USA) Inc. | |
| Co-Managers: | Desjardins Securities Inc. Commonwealth Bank of Australia HSBC Securities (USA) Inc. Intesa Sanpaolo IMI Securities Corp. Lloyds Securities Inc. nabSecurities, LLC Natixis Securities Americas LLC Nomura Securities International, Inc. CastleOak Securities, L.P. Mischler Financial Group, Inc. | |
SCHEDULE I-1-6
| Form and Denomination: | The Notes will be registered in the name of the nominee of The Depository Trust Company. Minimum of US$200,000 and integral multiples of US$1,000 in excess thereof. | |
| CUSIP / ISIN: | 06368LQ58 / US06368LQ586 | |
| * | A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time. |
Under Rule 15c6-1 of the Securities Exchange Act of 1934, as amended, trades in the secondary market generally are required to settle in two business days, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade their Notes more than two business days prior to the settlement date will be required, by virtue of the fact that the Notes initially will settle in six business days (T+6), to specify an alternate settlement cycle at the time of any such trade to prevent a failed settlement.
Certain of the underwriters may not be U.S. registered broker-dealers and accordingly will not effect any sales within the United States except in compliance with applicable U.S. laws and regulations, including the rules of the Financial Industry Regulatory Authority.
The Bank has filed a registration statement (File No. 333-237342) (including a prospectus) and a preliminary prospectus supplement 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. Alternatively, the Bank, any underwriter or any dealer participating in the offering will arrange to send you the pricing supplement, the prospectus supplement and the prospectus if you request them by calling BMO Capital Markets Corp. toll-free at 1-866-864-7760, Goldman Sachs & Co. LLC toll-free at 1-866-471-2526, Morgan Stanley & Co. LLC toll-free at 1-866-718-1649, Barclays Capital Inc. toll-free at 1-888-603-5847, BNP Paribas Securities Corp. toll-free at 1-800-854-5674 or Credit Agricole Securities (USA) Inc. toll-free at 1-866-807-6030.
SCHEDULE I-1-7
Schedule I-2
Pricing Term Sheet
Bank of Montreal
1,000,000 Non-Cumulative 5-Year Fixed Rate Reset Class B Preferred Shares, Series 53
(Non-Viability Contingent Capital (NVCC))
Capitalized terms used in this document but not defined have the meaning given to them in the Pricing Term Sheet for 7.700% Fixed Rate Reset Limited Recourse Capital Notes, Series 4 (Non-Viability Contingent Capital (NVCC)) (subordinated indebtedness) (the “Notes”) to which this Preferred Share Term Sheet is attached.
| Issuer: | Bank of Montreal (the “Bank”) | |
| Issue: | 1,000,000 Non-Cumulative 5-Year Fixed Rate Reset Class B Preferred Shares, Series 53 (Non-Viability Contingent Capital (NVCC)) (the “Preferred Shares”)
The Preferred Shares will be held in the Limited Recourse Trust for the benefit of the Bank and, in particular, to satisfy the recourse of Noteholders in respect of the Bank’s obligations under the Indenture. | |
| Expected Credit Ratings*: | [intentionally omitted] | |
| Issue Size: | US$1,000,000,000 | |
| Issue Price: | Canadian Dollar Equivalent (as defined below) of US$1,000 per Preferred Share | |
| Face Amount: | US$1,000 per Preferred Share | |
| Issue Date: | March 7, 2024 (T+5) | |
| Dividends: | During the period from and including the date of issue of the Preferred Shares to, but excluding, the Initial Reset Date (as defined below) (the “Initial Fixed Rate Period”), the holders of Preferred Shares will be entitled to receive fixed rate non-cumulative preferential cash dividends, as and when declared by the board of directors of the Bank, subject to the provisions of the Bank Act, payable quarterly in arrears on February 26, May 26, August 26 and November 26 of each year (each, a “Dividend Payment Date”) in an amount per Preferred Share per annum equal to the Initial Fixed Dividend Rate (as defined below) multiplied by US$1,000 (or if then held in the Limited Recourse Trust, the Canadian Dollar Equivalent of US$1,000); provided that, whenever it is necessary to compute any dividend amount in respect of the Preferred Shares for a period of less than one full quarterly dividend period, such dividend amount shall be calculated on the basis of the actual number of days in the period and a year of 365 days. | |
SCHEDULE I-2-1
| During each Subsequent Fixed Rate Period (as defined below), the holders of Preferred Shares will be entitled to receive fixed rate non-cumulative preferential cash dividends, as and when declared by the board of directors of the Bank, subject to the provisions of the Bank Act, payable quarterly in arrears on each Dividend Payment Date, in an amount per Preferred Share per annum equal to the Annual Fixed Dividend Rate (as defined below) applicable to such Subsequent Fixed Rate Period multiplied by US$1,000 (or if then held in the Limited Recourse Trust, the Canadian Dollar Equivalent of US$1,000).
The LRT Trustee, as trustee of the Limited Recourse Trust, will, by written notice, provide to the Bank a waiver (the “Waiver”) of its right to receive any and all dividends on the Preferred Shares during the period from and including the date of the waiver to and including the earlier of (a) the date upon which the LRT Trustee, as trustee, provides, by written notice, a revocation of the Waiver to the Bank, and (b) the date upon which the LRT Trustee, as trustee of the Limited Recourse Trust, is no longer the registered holder of Preferred Shares. Accordingly, no dividends are expected to be declared or paid on the Preferred Shares while the Preferred Shares are held in the Limited Recourse Trust. The Waiver is applicable to the LRT Trustee, as trustee of the Limited Recourse Trust, and will not bind a subsequent holder of the Preferred Shares.
The Bank will covenant in favor of the Limited Recourse Trust that, at any time during which the Waiver is no longer in effect and the Limited Recourse Trust is a holder of the Preferred Shares, if it does not declare and pay dividends on the Preferred Shares, it will not declare and pay dividends on any of the other outstanding series of Class B preferred shares of the Bank.
“Annual Fixed Dividend Rate” means, for any Subsequent Fixed Rate Period, the rate (expressed as a percentage rate rounded to the nearest one hundred–thousandth of one percent (with 0.000005% being rounded up)) equal to the sum of the U.S. Treasury Rate (as defined in the Prospectus Supplement, with respect to the Preferred Shares) on the applicable Fixed Rate Calculation Date (as defined below) plus 3.452%.
“Canadian Dollar Equivalent” means the Canadian dollar equivalent of U.S. dollars using the spot exchange rate as of 4:30 p.m. New York City time on March 6, 2024.
“Fixed Period End Date” means the Initial Reset Date and each May 26 every fifth year thereafter.
“Fixed Rate Calculation Date” means, for any Subsequent Fixed Rate Period, the third business day immediately preceding the first day of such Subsequent Fixed Rate Period.
“Initial Fixed Dividend Rate” means, for the Initial Fixed Rate Period, the rate equal to the interest rate per annum on the Notes in effect as of the Issue Date.
“Initial Reset Date” means May 26, 2029.
“Subsequent Fixed Rate Period” means the period from and including the Initial Reset Date to, but excluding, the next Fixed Period End Date and each five year period thereafter from and including such Fixed Period End Date to, but excluding, the next Fixed Period End Date. |
SCHEDULE I-2-2
| Dividend Deferability: | If the board of directors of the Bank does not declare dividends, or any part thereof, on the Preferred Shares on or before the relevant Dividend Payment Date for a particular period, then the entitlement of the holders of Preferred Shares to receive such dividends, or to any part thereof, for the relevant period shall be forever extinguished.
The Bank may also be restricted under the Bank Act from paying dividends on the Preferred Shares in certain circumstances. | |
| Restrictions on Dividends and Retirement of Shares: | So long as any of the Preferred Shares are outstanding, the Bank will not, without the approval of the holders of the Preferred Shares, declare, pay or set apart for payment any dividends on any Common Shares or any other shares of the Bank ranking junior to the Preferred Shares (other than stock dividends on any shares ranking junior to the Preferred Shares); redeem, purchase or otherwise retire any Common Shares or any other shares of the Bank ranking junior to the Preferred Shares (except out of the net cash proceeds of a substantially concurrent issue of shares ranking junior to the Preferred Shares); redeem, purchase or otherwise retire less than all of the Preferred Shares; or except pursuant to any purchase obligation, sinking fund, retraction privilege or mandatory redemption provision attaching to any series of preferred shares of the Bank, redeem, purchase, or otherwise retire any other shares ranking on a parity with the Preferred Shares, unless in each case all dividends up to and including the dividend payment date for the last completed period for which dividends are payable have been declared and paid, or set apart for payment, in respect of each series of cumulative Class B preferred shares then issued and outstanding and on all other cumulative shares ranking on a parity with the Class B preferred shares of the Bank and there will have been paid or set apart for payment all declared dividends in respect of each series of non-cumulative Class B preferred shares of the Bank (including the Preferred Shares) then issued and outstanding and on all other non-cumulative shares ranking on a parity with the Class B preferred shares of the Bank. | |
| Redemption: | Except as noted below, the Preferred Shares will not be redeemable by the Bank prior to the Initial Reset Date.
Subject to the provisions of the Bank Act, the prior consent of the Superintendent and to the provisions of the Preferred Shares, the Bank may redeem all or any part of the outstanding Preferred Shares, at the option of the Bank and without the consent of the holder, on the Initial Reset Date and on each February 26, May 26, August 26 and November 26 thereafter, by the payment of an amount in cash for each such share so redeemed of US$1,000 (or if then held in the Limited Recourse Trust, the Canadian Dollar Equivalent of US$1,000) per Preferred Share, together with any declared and unpaid dividends (of which none are expected for so long as the Preferred Shares are held in the Limited Recourse Trust), up to, but excluding, the date fixed for redemption.
If at any time the Bank redeems Notes in accordance with their terms (including in connection with an Optional Redemption or a Special Event Redemption) or purchases Notes, in whole or in part, by tender offer, open market purchases, negotiated transactions or otherwise, for cancellation, then the Bank shall, subject to the provisions of the Bank Act, the prior consent of the Superintendent and to the provisions of the Preferred Shares, redeem such number of Preferred Shares with an aggregate face amount equal to the aggregate principal amount of Notes redeemed or purchased for cancellation by the Bank, by the payment of an amount in cash for each such share so redeemed of the Canadian Dollar Equivalent of US$1,000 per Preferred Share, together with any declared and unpaid dividends (of which none are expected for so long as the Preferred Shares are held in the Limited Recourse Trust) up to, but excluding, the date fixed for redemption. | |
SCHEDULE I-2-3
| When the Preferred Shares are held in the Limited Recourse Trust, subject to the provisions of the Bank Act, the prior consent of the Superintendent and to the provisions of the Preferred Shares, the Bank may also redeem all but not less than all of the outstanding Preferred Shares (i) at any time following a Regulatory Event Date, or (ii) at any time following a Tax Event Date, at the Bank’s option without the consent of the holder, by the payment of an amount in cash for each such share so redeemed of the Canadian Dollar Equivalent of US$1,000 per Preferred Share, together with any declared and unpaid dividends (of which none are expected for so long as the Preferred Shares are held in the Limited Recourse Trust) up to, but excluding, the date fixed for redemption.
Concurrently with or upon the maturity of the Notes, subject to the provisions of the Bank Act, the prior consent of the Superintendent and to the provisions of the Preferred Shares, the Bank may, at the Bank’s option, redeem all but not less than all of the outstanding Preferred Shares by the payment of an amount in cash for each such share so redeemed of the Canadian Dollar Equivalent of US$1,000 per Preferred Share, together with any declared and unpaid dividends (of which none are expected for so long as the Preferred Shares are held in the Limited Recourse Trust) up to, but excluding, the date fixed for redemption.
The Bank will give notice of any redemption to registered holders at least 10 and not more than 60 days prior to the redemption date. | ||
| NVCC Automatic Conversion: | Upon the occurrence of a Trigger Event, each outstanding Preferred Share will automatically and immediately be converted, on a full and permanent basis, without any action on the part of the holder thereof, into fully-paid and non-assessable Common Shares, the number of which is to be determined in accordance with the NVCC Automatic Conversion Formula (as defined below); rounding down, if necessary, to the nearest whole number of Common Shares, such conversion being referred to herein as an “NVCC Automatic Conversion”. Fractions of Common Shares will not be issued or delivered pursuant to an NVCC Automatic Conversion and no cash payment will be made in lieu thereof.
The “NVCC Automatic Conversion Formula” is (Multiplier x Share Value) ÷ Conversion Price = number of Common Shares into which each Preferred Share is converted upon a Trigger Event.
“Conversion Price” means the greater of (i) the Floor Price, and (ii) the Current Market Price.
“Current Market Price” means the volume weighted average trading price of the Common Shares on the Toronto Stock Exchange or, if not then listed on the Toronto Stock Exchange, on another exchange or market chosen by the board of directors of the Bank on which the Common Shares are then traded, for the 10 consecutive trading days ending on the trading day immediately prior to the date on which the Trigger Event occurs (with the conversion occurring as of the start of business on the date on which the Trigger Event occurs), converted (if not denominated in Canadian dollars) into Canadian | |
SCHEDULE I-2-4
| dollars on the basis of the closing exchange rate between Canadian dollars and the relevant currency reported by the Bank of Canada on the date immediately preceding the date of the Trigger Event (or if not available on such date, the date on which such closing rate was last available prior to such date). If such exchange rate is no longer reported by the Bank of Canada, the relevant exchange rate for calculating the Current Market Price in Canadian dollars shall be the simple average of the closing exchange rates between Canadian dollars and the relevant currency quoted at approximately 4:00 p.m., New York City time, on such date by three major banks selected by the Bank. If no such trading prices are available, “Current Market Price” shall be the Floor Price.
“Floor Price” means $5.00, subject to adjustment.
“Multiplier” means 1.0.
“Share Value” means US$1,000 plus declared and unpaid dividends, if any, up to, but excluding the date of the Trigger Event, expressed in Canadian dollars. In determining the Share Value of any Preferred Share, the face amount thereof and any declared and unpaid dividends thereon shall be converted from U.S. dollars into Canadian dollars on the basis of the closing exchange rate between Canadian dollars and U.S. dollars (in Canadian dollars per U.S. dollar) reported by the Bank of Canada on the date immediately preceding the date of the Trigger Event (or if not available on such date, the date on which such closing rate was last available prior to such date). If such exchange rate is no longer reported by the Bank of Canada, the relevant exchange rate for calculating the Share Value in Canadian dollars shall be the simple average of the closing exchange rates between Canadian dollars and U.S. dollars (in Canadian dollars per U.S. dollar) quoted at approximately 4:00 p.m., New York City time, on such date by three major banks selected by the Bank. As a result of the Waiver, no declared and unpaid dividends are expected for so long as the Preferred Shares are held in the Limited Recourse Trust. | ||
| Trigger Event: | A “Trigger Event” has the meaning set out in the CAR Guideline, Chapter 2, Definition of Capital, effective November 2023, as such term may be amended or superseded by OSFI from time to time, which term currently provides that each of the following constitutes a Trigger Event:
• the Superintendent publicly announces that the Bank has been advised, in writing, that the Superintendent is of the opinion that the Bank has ceased, or is about to cease, to be viable and that, after the conversion or write off, as applicable, of the Preferred Shares and all other contingent instruments issued by the Bank and taking into account any other factors or circumstances that are considered relevant or appropriate, it is reasonably likely that the viability of the Bank will be restored or maintained; or
• a federal or provincial government in Canada publicly announces that the Bank has accepted or agreed to accept a capital injection, or equivalent support, from the federal government or any provincial government or political subdivision or agent or agency thereof without which the Bank would have been determined by the Superintendent to be non-viable. | |
SCHEDULE I-2-5
| Conversion into Another Series of Preferred Shares: | The Bank may at any time that the Preferred Shares are not held in the Limited Recourse Trust, subject to the approval of the Superintendent, give the holders of Preferred Shares the right, at their option, to convert such Preferred Shares into a new series of Tier 1 capital preferred shares of the Bank on a share-for-share basis. | |
| Common Share Corporate Event: |
In the event of a capital reorganization, consolidation, merger or amalgamation of the Bank or comparable transaction affecting the Common Shares, the Bank will take necessary action to ensure that the holders of the Preferred Shares receive, pursuant to an NVCC Automatic Conversion, the number of Common Shares or other securities that such holders would have received if the NVCC Automatic Conversion occurred immediately prior to the record date for such event. | |
| Purchase for Cancellation: | Subject to the provisions of the Bank Act, the prior written approval of the Superintendent and to the provisions of the Preferred Shares, the Bank may at any time or from time to time purchase for cancellation the whole or any part of the outstanding Preferred Shares in the open market (including by private contracts), by tender or otherwise at the lowest price or prices at which in the opinion of the board of directors of the Bank such shares are obtainable. | |
| CUSIP / ISIN: | 06368L601 / CA06368L6017 | |
* A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time.
The Bank has filed a registration statement (File No. 333-237342) (including a prospectus) and a preliminary prospectus supplement 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. Alternatively, the Bank, any underwriter or any dealer participating in the offering will arrange to send you the pricing supplement, the prospectus supplement and the prospectus if you request them by calling BMO Capital Markets Corp. toll-free at 1-866-864-7760, Goldman Sachs & Co. LLC toll-free at 1-866-471-2526, Morgan Stanley & Co. LLC toll-free at 1-866-718-1649, Barclays Capital Inc. toll-free at 1-888-603-5847, BNP Paribas Securities Corp. toll-free at 1-800-854-5674 or Credit Agricole Securities (USA) Inc. toll-free at 1-866-807-6030.
SCHEDULE I-2-6
Schedule II
| (a) | Issuer Free Writing Prospectuses: |
Term Sheets in the form set forth in Schedule I-1 and Schedule I-2 of this Agreement.
| (b) | Additional Information in Pricing Disclosure Package: |
None.
SCHEDULE II-1
Schedule III
| Underwriter |
Aggregate Principal Amount of Notes |
|||
| BMO Capital Markets Corp. |
US$ | 300,000,000 | ||
| Goldman Sachs & Co. LLC |
150,000,000 | |||
| Morgan Stanley & Co. LLC |
150,000,000 | |||
| Barclays Capital Inc. |
100,000,000 | |||
| BNP Paribas Securities Corp. |
100,000,000 | |||
| Credit Agricole Securities (USA) Inc. |
100,000,000 | |||
| Desjardins Securities Inc. |
20,000,000 | |||
| Commonwealth Bank of Australia |
10,000,000 | |||
| HSBC Securities (USA) Inc. |
10,000,000 | |||
| Intesa Sanpaolo IMI Securities Corp. |
10,000,000 | |||
| Lloyds Securities Inc. |
10,000,000 | |||
| nabSecurities, LLC |
10,000,000 | |||
| Natixis Securities Americas LLC |
10,000,000 | |||
| Nomura Securities International, Inc. |
10,000,000 | |||
| CastleOak Securities, L.P. |
5,000,000 | |||
| Mischler Financial Group, Inc. |
5,000,000 | |||
|
|
|
|||
| Total |
US$ | 1,000,000,000 | ||
|
|
|
|||
Price to Public/Purchase Price: 100.000% (representing US$1,000 per US$1,000 principal amount of the Notes), plus accrued interest, if any, from March 8, 2024
Underwriters’ Fee: 1.000% of the principal amount of the Notes
Closing Date, Time and Location: March 8, 2024 at 9:00 a.m. (New York City time) at Shearman & Sterling LLP, Commerce Court West, 199 Bay Street, Toronto, Ontario M5L 1E8.
SCHEDULE III-1
ANNEX I
Form of Opinion of Sullivan & Cromwell LLP
ANNEX I-1
Form of Letter of Sullivan & Cromwell LLP
ANNEX I-2
ANNEX II
Form of Opinion of Osler, Hoskin & Harcourt LLP
ANNEX II-1
ANNEX III
Form of Opinion of Torys LLP
ANNEX III-1
ANNEX IV
Underwriters
| Name: |
Contact Information: | |
| BMO Capital Markets Corp. | 151 West 42nd Street, 32nd Floor, New York, New York 10036 Attention: Legal Department | |
| Goldman Sachs & Co. LLC | 200 West Street New York, New York 10282 Attention: Registration Department | |
| Morgan Stanley & Co. LLC | 1585 Broadway, 29th Floor New York, New York 10036 Attention: Investment Banking Division | |
| Barclays Capital Inc. | 745 7th Avenue New York, New York 10019 Attention: Syndicate Registration Telephone: (646) 834-8133 | |
| BNP Paribas Securities Corp. | 787 Seventh Avenue New York, New York 10019 Attention: Syndicate Desk DL.US.Syndicate.Support@us.bnpparibas.com | |
| Credit Agricole Securities (USA) Inc. | 1301 Avenue of the Americas New York, New York 10019 Attention: Debt Capital Markets | |
ANNEX IV-1
Exhibit 4.1
BANK OF MONTREAL
TO
COMPUTERSHARE TRUST COMPANY, N.A. AS SUCCESSOR TO WELLS FARGO
BANK, NATIONAL ASSOCIATION
Trustee
Fifth Supplemental Indenture
Dated as of March 8, 2024
to
Indenture
Dated as of December 12, 2017
Subordinated Debt Securities
7.700% Fixed Rate Reset Limited Recourse Capital Notes, Series 4
(Non-Viability Contingent Capital (NVCC))
(Subordinated Indebtedness)
TABLE OF CONTENTS
| Page |
||||||
| PARTIES |
1 | |||||
| RECITALS OF THE BANK |
1 | |||||
| ARTICLE ONE | ||||||
| DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
||||||
| Section 101. | Relation to Base Indenture | 2 | ||||
| Section 102. | Definition of Terms | 2 | ||||
| Section 103. | Benefits of Fifth Supplemental Indenture | 8 | ||||
| Section 104. | Conflict with Base Indenture | 9 | ||||
| Section 105. | Provisions of Trust Indenture Act | 9 | ||||
| Section 106. | Separability Clause | 9 | ||||
| Section 107. | Governing Law | 9 | ||||
| Section 108. | Meaning of “proportionate share of Limited Recourse Trust Assets” | 9 | ||||
| ARTICLE TWO | ||||||
| THE NOTES | ||||||
| Section 201. | Designation and Principal Amount | 10 | ||||
| Section 202. | Maturity | 10 | ||||
| Section 203. | Form, Payment and Appointment | 10 | ||||
| Section 204. | Global Note | 11 | ||||
| Section 205. | Interest | 11 | ||||
| Section 206. | No Repayment at the Option of Holders | 12 | ||||
| Section 207. | No Sinking Fund | 12 | ||||
| Section 208. | Defeasance and Covenant Defeasance | 12 | ||||
| Section 209. | Amendments | 12 | ||||
| ARTICLE THREE | ||||||
| FORM OF NOTES | ||||||
| Section 301. | Form of Notes | 12 | ||||
| ARTICLE FOUR | ||||||
| ISSUE OF NOTES | ||||||
| Section 401. | Issue of Notes | 13 | ||||
| Section 402. | Payment at Maturity | 13 | ||||
-i-
| ARTICLE FIVE | ||||||
| REMEDIES | ||||||
| Section 501. | Applicability of Article Five of Base Indenture | 13 | ||||
| Section 502. | Events of Default | 13 | ||||
| Section 503. | Recourse to Limited Recourse Trust Assets Is Sole Remedy | 14 | ||||
| Section 504. | Suits for Enforcement by Trustees | 14 | ||||
| Section 505. | Application of Money or Limited Recourse Trust Assets Collected | 14 | ||||
| Section 506. | Limitation on Suits | 15 | ||||
| Section 507. | Delay or Omission Not Waiver | 16 | ||||
| Section 508. | Waiver of Claims Relating to a Trigger Event | 16 | ||||
| Section 509. | Rights of Holders to Receive Principal Amount and Interest or Redemption Price | 16 | ||||
| ARTICLE SIX | ||||||
| SATISFACTION AND DISCHARGE | ||||||
| Section 601. | Applicability of Article Four of the Base Indenture | 17 | ||||
| Section 602. | Satisfaction and Discharge of Indenture | 17 | ||||
| Section 603. | Application of Trust Money or Limited Recourse Trust Assets | 18 | ||||
| ARTICLE SEVEN | ||||||
| TRUSTEE | ||||||
| Section 701. | Money or Limited Recourse Trust Assets Held in Trust | 18 | ||||
| Section 702. | Conflicting Interests | 18 | ||||
| Section 703. | Trustee to Provide Instructions Upon Request of the Bank | 18 | ||||
| Section 704. | Limited Recourse Trust Assets for Notes Payments to be Held in Trust | 19 | ||||
| ARTICLE EIGHT | ||||||
| COVENANTS | ||||||
| Section 801. | Additional Amounts | 20 | ||||
| Section 802. | No Restriction on Other Indebtedness | 22 | ||||
| ARTICLE NINE | ||||||
| LIMITED RECOURSE TRUST | ||||||
| Section 901. | Satisfaction of Payment Obligations with Limited Recourse Trust Assets | 22 | ||||
| Section 902. | Limited Recourse Trust Assets | 22 | ||||
| Section 903. | Right Not to Deliver Common Shares or Preferred Shares | 23 | ||||
| Section 904. | Trigger Event | 24 | ||||
| Section 905. | Conversion Rate | 24 | ||||
| Section 906. | Time of Delivery | 24 | ||||
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| Section 907. | Trigger Event Procedure |
25 | ||||
| Section 908. | Duties of Trustee Upon Trigger Event |
25 | ||||
| Section 909. | General |
25 | ||||
| Section 910. | Agreements of Holders and Beneficial Owners of Notes |
26 | ||||
| Section 911. | Amendments to Limited Recourse Trust Declaration |
27 | ||||
| ARTICLE TEN | ||||||
| SUBORDINATION OF NOTES | ||||||
| Section 1001. | Applicability of Article Fifteen of Base Indenture |
28 | ||||
| Section 1002. | Notes Subordinate to Deposit Liabilities and Other Indebtedness |
28 | ||||
| ARTICLE ELEVEN | ||||||
| REDEMPTION OF NOTES | ||||||
| Section 1101. | Applicability of Article Eleven of the Base Indenture |
29 | ||||
| Section 1102. | Regulatory or Tax Redemption |
29 | ||||
| Section 1103. | Optional Redemption |
30 | ||||
| Section 1104. | Mandatory Redemption Upon Redemption of the Preferred Shares |
30 | ||||
| Section 1105. | Purchase for Cancellation |
30 | ||||
| Section 1106. | Redemption Obligations |
31 | ||||
| Section 1107. | Redemption Generally |
31 | ||||
| Section 1108. | Notice of Redemption |
31 | ||||
| Section 1109. | Agreements of Holders and Beneficial Owners of Notes |
31 | ||||
| ARTICLE TWELVE | ||||||
| MISCELLANEOUS PROVISIONS | ||||||
| Section 1201. | Ratification of Base Indenture |
32 | ||||
| Section 1202. | Trustee Not Responsible for Recitals |
32 | ||||
| Section 1203. | Execution in Counterparts; E-signatures; Authorized Officer |
32 | ||||
| Section 1204. | Indenture and Notes Solely Corporate Obligations |
33 | ||||
| Section 1205. | Agreement of Subsequent Investors |
33 | ||||
| Section 1206. | Waiver of Jury Trial |
33 | ||||
Exhibits
Exhibit A – Form of Global Note
-iii-
FIFTH SUPPLEMENTAL INDENTURE, dated as of March 8, 2024 (this “Fifth Supplemental Indenture”), between 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, and Computershare Trust Company, N.A. as successor to Wells Fargo Bank, National Association, a national banking association organized under the law of the United States of America, as Trustee (herein called the “Trustee”).
RECITALS OF THE BANK
WHEREAS, the Bank and the Trustee have heretofore executed and delivered an Indenture, dated as of December 12, 2017 (the “Base Indenture” and, as hereby supplemented and amended, the “Indenture”) providing for the issuance from time to time of series of the Bank’s unsecured subordinated debt securities (hereinafter called the “Securities”);
WHEREAS, Section 901(7) of the Base Indenture provides that the Bank and the Trustee may enter into an indenture supplemental to the Base Indenture to establish the form or terms of Securities of any series as permitted by the Base Indenture;
WHEREAS, pursuant to Section 301 of the Base Indenture, the Bank wishes to provide for the issuance of $1,000,000,000 aggregate principal amount of a new series of Securities to be known as its 7.700% Fixed Rate Reset Limited Recourse Capital Notes, Series 4 (Non-Viability Contingent Capital (NVCC)) (Subordinated Indebtedness) (hereinafter called the “Notes”), the form of such Notes and the terms, provisions and conditions thereof to be set forth as provided in this Fifth Supplemental Indenture;
WHEREAS, the Bank has requested that the Trustee execute and deliver this Fifth Supplemental Indenture; and all requirements necessary to make this Fifth Supplemental Indenture a valid, binding and enforceable instrument in accordance with its terms, and to make the Notes, when executed by the Bank and authenticated and delivered by the Trustee, the valid, binding and enforceable obligations of the Bank, have been satisfied; and the execution and delivery of this Fifth Supplemental Indenture has been duly authorized in all respects;
WHEREAS, BMO LRCN Trust, a trust established under the laws of the Province of Manitoba (the “Limited Recourse Trust”), has been established by the Limited Recourse Trustee (as defined herein) by a declaration of trust dated as of September 4, 2020, as supplemented on September 14, 2020 and February 27, 2024 (as may be further amended, restated or supplemented from time to time, the “Limited Recourse Trust Declaration”); and
WHEREAS, in accordance with the terms of the Limited Recourse Trust Declaration, the Limited Recourse Trustee holds assets in the Limited Recourse Trust for the benefit of the Bank to satisfy the recourse of the Holders in respect of the Bank’s obligations in respect of the Notes under this Fifth Supplemental Indenture.
NOW, THEREFORE, WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of the Holders of Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Relation to Base Indenture.
This Fifth Supplemental Indenture constitutes an integral part of the Indenture.
Section 102. Definition of Terms.
For all purposes of this Fifth Supplemental Indenture:
(a) capitalized terms used herein without definition shall have the meanings set forth in the Base Indenture;
(b) a term defined anywhere in this Fifth Supplemental Indenture has the same meaning throughout;
(c) unless otherwise specified or unless the context requires otherwise, (i) all references in this Fifth Supplemental Indenture to Sections refer to the corresponding Sections of this Fifth Supplemental Indenture and (ii) the terms “herein”, “hereof”, “hereunder” and any other word of similar import refer to this Fifth Supplemental Indenture; and
(d) the following terms have the meanings given to them in this Section 102(d):
“Additional Amounts” has the meaning specified in Section 801(a).
“Bank” has the meaning specified in the Preamble.
“Base Indenture” has the meaning specified in the Recitals.
“Beneficial Owner” means (i) with respect to a Global Note, the beneficial owners of the relevant Note and (ii) with respect to any definitive Note, the Holders in whose names such Note is registered in the Security Register.
“Business Day” means each Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which banking institutions are authorized or required by law or executive order to close in The City of New York, New York or Toronto, Ontario.
-2-
“Calculation Agent” means such bank or other entity (which may be the Bank or an Affiliate of the Bank) as may be appointed by the Bank to act as calculation agent for the Notes.
“Canadian Taxes” has the meaning specified in Section 801(a).
“CAR Guideline” means OFSI’s guidelines for capital adequacy requirements for banks in Canada, as may be amended from time to time.
“Code” means the U.S. Internal Revenue Code of 1986, and any statute hereafter enacted in substitution therefor, as such Code, or substituted statute, may be amended from time to time.
“Common Shares” means the common shares in the capital of the Bank.
“Consent Event” has the meaning specified in Section 703.
“Deeply Subordinated Indebtedness” means Indebtedness which ranks senior in right of payment to Junior Subordinated Indebtedness, but is, by its respective terms, subordinate in right of payment to all other Subordinated Indebtedness.
“Dividend Common Shares” means, with respect to the Preferred Shares and a Trigger Event, that number of Common Shares, if any, issued in respect of the portion of the Share Value of the Preferred Shares equal to any declared and unpaid dividends on the Preferred Shares. For the purposes of the foregoing, the term “Share Value” shall have the meaning ascribed to it in the terms and conditions of the Preferred Shares.
“DTC” has the meaning specified in Section 203.
“Failed Coupon Payment Date” means the fifth Business Day immediately following an Interest Payment Date upon which the Bank does not pay interest on the Notes and has not cured such non-payment by subsequently paying such interest prior to such fifth Business Day.
“FATCA Withholding Tax” has the meaning specified in Section 801(g).
“Global Note” has the meaning specified in Section 204.
“H.15 Daily Update” means the Selected Interest Rates (Daily)—H.15 release of the U.S. Federal Reserve Board of Governors, available at www.federalreserve.gov/releases/h15/update, or any successor site or publication.
“Higher Ranked Indebtedness” means all Indebtedness of the Bank then outstanding (including all Subordinated Indebtedness and Deeply Subordinated Indebtedness of the Bank then outstanding) other than Junior Subordinated Indebtedness.
“Indenture” has the meaning specified in the Recitals.
-3-
“Ineligible Person” means (i) any Person whose address is in, or whom the Bank or its transfer agent has reason to believe is a resident of, any jurisdiction outside Canada or the United States to the extent that the issuance by the Bank or delivery by its transfer agent to that Person, of Preferred Shares, or, pursuant to an NVCC Automatic Conversion, of Common Shares would require the Bank to take any action to comply with securities, banking or analogous laws of that jurisdiction, and (ii) any Person to the extent that the issuance by the Bank or delivery by its transfer agent to that Person, of Preferred Shares, or, pursuant to an NVCC Automatic Conversion, of Common Shares would, at the time of the Trigger Event, cause the Bank to be in violation of any law to which the Bank is subject.
“Initial Interest Reset Date” means May 26, 2029.
“Interest Payment Date” has the meaning specified in Section 205.
“Interest Rate Calculation Date” has the meaning specified in Section 205.
“Interest Reset Date” means the Initial Interest Reset Date and each fifth anniversary of such date thereafter occurring prior to and not including the Maturity Date.
“Issue Date” means March 8, 2024.
“Junior Subordinated Indebtedness” means Indebtedness which by its terms ranks equally in right of payment with, or is subordinate to, the Notes.
“Limited Recourse Trust” has the meaning specified in the Recitals.
“Limited Recourse Trust Assets” means the assets held in the Limited Recourse Trust from time to time in relation to the Notes, which may only be comprised of (i) Preferred Shares (or proceeds with respect to the subscription for units of the Limited Recourse Trust by the Bank, which are to be used by the Limited Recourse Trust to subscribe for Preferred Shares), (ii) Common Shares issued upon an NVCC Automatic Conversion (other than Dividend Common Shares, if any), (iii) cash from the redemption, or the purchase by the Bank for cancellation, of the Preferred Shares (other than the portion of such cash in respect of declared and unpaid dividends), or (iv) any combination thereof, depending on the circumstances. For greater certainty, at no time shall the Limited Recourse Trust Assets include any dividends paid on the Preferred Shares, any right to receive declared, but unpaid, dividends on the Preferred Shares, or any Dividend Common Shares.
“Limited Recourse Trust Declaration” has the meaning specified in the Recitals.
“Limited Recourse Trustee” means Computershare Trust Company of Canada until a successor Limited Recourse Trustee shall have become such pursuant to the applicable provisions of the Limited Recourse Trust Declaration, and thereafter “Limited Recourse Trustee” shall mean or include each Person who is then a Limited Recourse Trustee thereunder.
-4-
“Majority Holders” means the Holders of a majority in principal amount of the Outstanding Notes.
“Mandatory Redemption” has the meaning specified in Section 1104.
“Maturity Date” means May 26, 2084.
“NVCC Automatic Conversion” means, upon the occurrence of a Trigger Event, the automatic conversion of each outstanding Preferred Share into fully-paid and non-assessable Common Shares in accordance with the terms of the Preferred Shares.
“Optional Redemption” has the meaning specified in Section 1103.
“OSFI” means the Office of the Superintendent of Financial Institutions (Canada) (or any successor thereto).
“Preferred Share Redemption” means any redemption by the Bank of Preferred Shares held in the Limited Recourse Trust in accordance with the terms of such Preferred Shares.
“Preferred Share Voting Event” has the meaning specified in Section 703.
“Preferred Shares” means the Bank’s Non-Cumulative 5-Year Fixed Rate Reset Class B Preferred Shares, Series 53 (Non-Viability Contingent Capital (NVCC)).
“Rate Reset Period” means the period from and including the Initial Interest Reset Date to, but excluding, the next Interest Reset Date and each five-year period thereafter from and including such Interest Reset Date to, but excluding, the next Interest Reset Date.
“Recourse Event” means any of the following: (i) the occurrence of a Failed Coupon Payment Date, (ii) on the Maturity Date, the Bank does not pay the aggregate principal amount of the Notes, together with any accrued and unpaid interest thereon, in cash, (iii) the occurrence of an Event of Default, (iv) in connection with the redemption of the Notes, on the Redemption Date, the Bank does not pay the Redemption Price in cash, or (v) the occurrence of a Trigger Event.
“Redemption Price,” when used with respect to any Note to be redeemed, means the aggregate of (i) the principal amount of the Note, plus (ii) any accrued and unpaid interest on the Note up to, but excluding, the Redemption Date.
“Regulatory Event Date” means the date specified in a letter or other written communication from the Superintendent to the Bank on which the Notes will no longer be recognized in full as eligible “Additional Tier 1” capital or will no longer be eligible to be included in full as risk-based “Total Capital” on a consolidated basis, in each case under the CAR Guideline as interpreted by the Superintendent.
-5-
“Securities” has the meaning specified in the Recitals.
“Signature Law” has the meaning specified in Section 1203.
“Significant Shareholder” means any Person who beneficially owns directly, or indirectly through entities controlled by such Person or Persons associated with or acting jointly or in concert with such Person, a percentage of the total number of outstanding shares of a class of the Bank that is in excess of that permitted by the Bank Act.
“Special Event Redemption” has the meaning specified in Section 1102.
“Superintendent” means the Superintendent of Financial Institutions (Canada) appointed pursuant to the Office of the Superintendent of Financial Institutions Act (Canada).
“surrender” or “delivery” of a Note by a Holder means: (a) with respect to any definitive Notes or Global Notes in certificated form, delivery of the certificates representing such Notes, and (b) with respect to any Notes or Global Notes in uncertificated form, delivery of a written order signed by the Holder or Holders entitled to request that one or more actions be taken in such form as may be reasonably acceptable to the Trustee requesting one or more such actions to be taken in respect of such uncertificated Note, and the terms “surrendered” and “delivered” have meanings correlative to the foregoing.
“Tax Act” means the Income Tax Act (Canada), and any statute hereafter enacted in substitution therefor, as such Act, or substituted statute, may be amended from time to time.
“Tax Event Date” means the date on which the Bank has received an opinion of independent counsel of a nationally recognized law firm in Canada experienced in such matters (who may be counsel to the Bank or the Limited Recourse Trust) to the effect that:
(i) as a result of: (A) any amendment to, clarification of, or change (including any announced prospective change) in, the laws, or any regulations thereunder, or any application or interpretation thereof, of Canada or any political subdivision or taxing authority thereof or therein, affecting taxation, (B) any judicial decision, administrative pronouncement, published or private ruling, regulatory procedure, rule, notice, announcement, assessment or reassessment (including any notice or announcement of intent to adopt or issue such decision, pronouncement, ruling, procedure, rule, notice, announcement, assessment or reassessment) (collectively, an “administrative action”), or (C) any amendment to, clarification of, or change (including any announced prospective change) in, the official position with respect to or the interpretation of any administrative action or any interpretation or pronouncement that provides for a position with respect to such administrative action that differs from the theretofore generally accepted position, in each of case (A), (B) or (C), by any legislative body, court, governmental authority or agency, regulatory body or taxing authority in Canada, irrespective of the manner in which such amendment, clarification, change, administrative action, interpretation or pronouncement is made known, which amendment, clarification, change or administrative action is effective or which interpretation, pronouncement or administrative action is announced on or after the date of
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issue of the Notes, there is more than an insubstantial risk (assuming any proposed or announced amendment, clarification, change, interpretation, pronouncement or administrative action is effective and applicable) that: (I) the Bank or the Limited Recourse Trust is, or may be, subject to more than a de minimis amount of additional taxes, duties or other governmental charges or civil liabilities because the treatment of any of its items of income, taxable income, expense, taxable capital or taxable paid-up capital with respect to the Notes (including the treatment by the Bank of interest on the Notes) or the treatment of the Notes or the Preferred Shares (including dividends thereon) or other assets of the Limited Recourse Trust or the Limited Recourse Trust, as or as would be reflected in any tax return or form filed, to be filed, or otherwise could have been filed, will not be respected by a taxing authority, or (II) the Limited Recourse Trust is, or will be, subject to more than a de minimis amount of taxes, duties or other governmental charges or civil liabilities; or
(ii) (A) as a result of any change (including any announced prospective change) in or amendment to the laws or treaties (or any rules, regulations, rulings or administrative pronouncements thereunder) of Canada (or the jurisdiction of organization of the successor to the Bank) or of any political subdivision or taxing authority thereof or therein affecting taxation, or any change in official position regarding the application or interpretation of such laws, treaties, rules, regulations, rulings or administrative pronouncements (including a holding by a court of competent jurisdiction), which change or amendment is announced or becomes effective on or after the date of issue of the Notes (or in the case of a successor to the Bank, after the date of the succession), the Bank (or its successor) has or will become obligated to pay, on the next succeeding date on which interest is due, Additional Amounts on the Notes (assuming, in the case of any announced prospective change, that such announced change will become effective as of the date specified in such announcement and in the form announced); or (B) on or after the date of issue of the Notes (or in the case of a successor to the Bank, after the date of the succession), any action has been taken by any taxing authority of, or any decision has been rendered by a court of competent jurisdiction in, Canada (or the jurisdiction of organization of the successor to the Bank) or any political subdivision or taxing authority thereof or therein, including any of those actions specified in clause (ii)(A) above, whether or not such action was taken or decision was rendered with respect to the Bank (or its successor), or any change, amendment, application or interpretation shall be officially proposed, which, in any such case, will result in the Bank (or its successor) becoming obligated to pay, on the next succeeding date on which interest is due, Additional Amounts on the Notes (assuming that such change, amendment, application, interpretation or action is applied to the Notes by the taxing authority and that, in the case of any announced prospective change, that such announced change will become effective as of the date specified in such announcement and in the form announced); and, in any such case of clauses (ii)(A) or (B), the Bank (or its successor), in its business judgment, determines that such obligation cannot be avoided by the use of reasonable measures available to it (or its successor). For the avoidance of doubt, reasonable measures do not include a change in the terms of the Notes or a substitution of the debtor.
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“Trigger Event” has the meaning set out in the CAR Guideline, which term currently provides that each of the following constitutes a Trigger Event:
(1) the Superintendent publicly announces that the Bank has been advised, in writing, that the Superintendent is of the opinion that the Bank has ceased, or is about to cease, to be viable and that, after the conversion or write-off, as applicable, of the Notes and all other contingent instruments issued by the Bank and taking into account any other factors or circumstances that are considered relevant or appropriate, it is reasonably likely that the viability of the Bank will be restored or maintained; or
(2) a federal or provincial government in Canada publicly announces that the Bank has accepted or agreed to accept a capital injection, or equivalent support, from the federal government or any provincial government or political subdivision or agent or agency thereof without which the Bank would have been determined by the Superintendent to be non-viable.
“Trigger Event Notice” has the meaning specified in Section 906.
“Trustee” has the meaning specified in the Preamble.
“U.S. Treasury Rate” means, for any Rate Reset Period, the rate per annum equal to the average of the yields on actively traded U.S. Treasury securities adjusted to constant maturity, for five-year maturities, for the five business days preceding the applicable Interest Rate Calculation Date appearing (or, if fewer than five business days appear, such number of business days appearing) under the caption “Treasury Constant Maturities” in the most recently published statistical release designated H.15 Daily Update or any successor publication which is published by the Federal Reserve Board, as determined by the Calculation Agent in its sole discretion. If no calculation is provided as described above, then the Calculation Agent, after consulting such sources as it deems comparable to any of the foregoing calculations, or any such source as it deems reasonable from which to estimate the five-year treasury rate, will determine the U.S. Treasury Rate in its sole discretion, provided that if the Calculation Agent determines there is an industry-accepted successor five-year treasury rate, then the Calculation Agent will use such successor rate. If the Calculation Agent has determined a substitute or successor base rate in accordance with the foregoing, the Calculation Agent in its sole discretion may determine the business day convention, the definition of business day and the Interest Rate Calculation Date to be used and any other relevant methodology for calculating such substitute or successor base rate, including any adjustment factor needed to make such substitute or successor base rate comparable to the five-year treasury rate, in a manner that is consistent with industry accepted practices for such substitute or successor base rate.
Section 103. Benefits of Fifth Supplemental Indenture.
Nothing in this Fifth Supplemental Indenture or in the Notes, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Fifth Supplemental Indenture.
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Section 104. Conflict with Base Indenture.
If any provision of this Fifth Supplemental Indenture relating to the Notes is inconsistent with any provision of the Base Indenture, such provision of this Fifth Supplemental Indenture shall control.
Section 105. Provisions of Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under the Trust Indenture Act to be a part of and govern this Fifth Supplemental Indenture, the latter provision shall control. If any provision of this Fifth Supplemental Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Fifth Supplemental Indenture as so modified or to be excluded, as the case may be.
Section 106. Separability Clause.
In case any provision in this Fifth Supplemental Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 107. Governing Law.
This Fifth Supplemental Indenture and the Notes shall be governed by and construed in accordance with the law of the State of New York, except for the first sentence of Section 301(b) and Article Fifteen of the Base Indenture, and Sections 903, 904, 905, 906, 909, 910, and 1002 of this Fifth Supplemental Indenture, which shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein.
Section 108. Meaning of “proportionate share of the Limited Recourse Trust Assets”.
Wherever used in this Fifth Supplemental Indenture, the phrase “proportionate share of the Limited Recourse Trust Assets” shall mean, with respect to each Holder:
| (a) | in the case of a Recourse Event other than the occurrence of a Trigger Event, |
(i) where the Limited Recourse Trust Assets include Preferred Shares, one Preferred Share for each $1,000 principal amount of Notes held by such Holder, or
(ii) where the Limited Recourse Trust Assets include cash from the redemption of the Preferred Shares, such Holder’s pro rata share (in proportion to the aggregate principal amount of Notes held by such Holder relative to the aggregate principal amount of Outstanding Notes at such time) of such cash (but excluding any cash paid upon the redemption of the Preferred Shares that is attributable to the value of declared and unpaid dividends on the Preferred Shares at the time of redemption); and
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(b) in the case of a Recourse Event that is the occurrence of a Trigger Event, for each $1,000 principal amount of Notes held by such Holder, the number of Common Shares issued to the Limited Recourse Trustee upon an NVCC Automatic Conversion for one Preferred Share (but excluding any Dividend Common Shares).
ARTICLE TWO
THE NOTES
Section 201. Designation and Principal Amount.
The Notes may be issued from time to time upon a Bank Order for the authentication and delivery of Notes pursuant to Section 303 of the Base Indenture. There is hereby authorized a series of Securities designated as the 7.700% Fixed Rate Reset Limited Recourse Capital Notes, Series 4 (Non-Viability Contingent Capital (NVCC)) (Subordinated Indebtedness) having an aggregate principal amount of $1,000,000,000 (except for Notes authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections 304, 305, 306, 906 or 1107 of the Base Indenture and except for Notes which, pursuant to Section 303 of the Base Indenture are deemed to never have been authenticated and delivered under the Base Indenture). The aggregate principal amount of Notes that may be authenticated and delivered under this Fifth Supplemental Indenture is $1,000,000,000.
Section 202. Maturity.
The date upon which the Notes shall become due and payable at final maturity, together with any accrued and unpaid interest then owing, is May 26, 2084.
Section 203. Form, Payment and Appointment.
Except as provided in Section 305 of the Base Indenture, the Notes shall be issued only in book-entry form and shall be represented by one or more Global Notes registered in the name of or held by The Depository Trust Company (and any successor thereto) (“DTC”) or its nominee. Principal or the Redemption Price, if any, of a Note shall be payable to the Person in whose name that Note is registered on the Maturity Date or Redemption Date, as the case may be; provided that principal or the Redemption Price, if any, of and interest on the Notes represented by one or more Global Notes registered in the name of or held by DTC or its nominee shall be payable in immediately available funds to DTC or its nominee, as the case may be, as the registered Holder of such Global Notes. The principal of any certificated Notes shall be payable at the Place of Payment set forth below; provided, however, that payment of interest may be made at the option of the Bank by check mailed to the Person entitled thereto at such address as shall appear in the Security Register or by wire transfer to an account appropriately designated by the Person entitled to payment.
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The Notes shall have such other terms as are set forth in the form thereof attached hereto as Exhibit A.
The Security Registrar, Authenticating Agent and Paying Agent for the Notes shall initially be the Trustee.
The Place of Payment for the Notes shall initially be the Corporate Trust Office of the Trustee.
The Notes shall be issuable and may be transferred only in minimum denominations of $200,000 or any amount in excess thereof that is an integral multiple of $1,000. The amounts payable with respect to the Notes shall be payable in U.S. dollars.
Section 204. Global Note.
The Notes shall be issued initially in the form of one or more fully registered global notes (each such global note, a “Global Note”) deposited with DTC or its designated custodian or such other Depositary as any officer of the Bank may from time to time designate. Unless and until a Global Note is exchanged for Notes in certificated form, such Global Note may be transferred, in whole but not in part, and any payments on the Notes shall be made, only to DTC or a nominee of DTC, or to a successor Depositary selected or approved by the Bank or to a nominee of such successor Depositary.
Section 205. Interest.
The Notes shall bear interest on their principal amount (i) from and including the Issue Date to, but excluding, the Initial Interest Reset Date, at a rate of 7.700% per annum, and (ii) during each Rate Reset Period, at a rate per annum equal to the U.S. Treasury Rate on the applicable Interest Rate Calculation Date plus 3.452%. For each Rate Reset Period, the U.S. Treasury Rate shall be determined by the Calculation Agent on the third Business Day immediately preceding the applicable Interest Reset Date (each such date, an “Interest Rate Calculation Date”).
Interest on the Notes shall be payable quarterly in arrears on February 26, May 26, August 26 and November 26 of each year (each, an “Interest Payment Date”), commencing May 26, 2024.
If any Interest Payment Date falls on a day that is not a Business Day for the Notes, the Bank shall postpone the making of such interest payment to the next succeeding Business Day (and no interest shall be paid in respect of the delay).
Interest on the Notes shall in no event be higher than the maximum rate permitted by New York law as the same may be modified by the United States law of general application. In no event shall the interest rate on the Notes be less than zero.
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All determinations and calculations of the Calculation Agent, in the absence of manifest error, shall be conclusive and binding on the Bank and the Holders of the Notes. For the avoidance of doubt and notwithstanding anything to the contrary in the Notes or this Fifth Supplemental Indenture, any determination by the Calculation Agent with respect to or in connection with the implementation of a substitute or successor base rate in accordance with the definition of the U.S. Treasury Rate shall become effective without, and shall not be subject to, consent from the Holders of the Notes or any other party.
Interest on the Notes shall be calculated and paid on the basis of a 360-day year of twelve 30-day months.
For the avoidance of doubt, interest payments shall not be deferrable.
Section 206. No Repayment at the Option of Holders.
The provisions of Article Twelve of the Base Indenture relating to purchases or repayments of Securities by the Bank at the option of the Holder shall not be applicable to the Notes.
Section 207. No Sinking Fund.
The provisions of Article Thirteen of the Base Indenture relating to sinking funds shall not be applicable to the Notes.
Section 208. Defeasance and Covenant Defeasance.
The provisions of Article Fourteen of the Base Indenture relating to Defeasance and Covenant Defeasance shall not be applicable to the Notes.
Section 209. Amendments.
Notwithstanding any other provision of the Indenture or the Notes, the Bank shall not, without the prior written approval of the Superintendent, amend or vary terms of the Notes that would affect the recognition of the Notes as regulatory capital under capital adequacy requirements adopted by the Superintendent.
ARTICLE THREE
FORM OF NOTES
Section 301. Form of Notes.
The Notes and the Trustee’s certificate of authentication thereon are to be substantially in the form attached as Exhibit A hereto, with such changes therein as the officer of the Bank executing the Notes (by manual, facsimile or electronic format (i.e. “.pdf” or “.tif”) signature) may approve, such approval to be conclusively evidenced by their execution thereof.
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ARTICLE FOUR
ISSUE OF NOTES
Section 401. Issue of Notes.
Notes having an aggregate principal amount of $1,000,000,000 may, upon execution of this Fifth Supplemental Indenture, be executed by the Bank and delivered to the Trustee for authentication, and upon Bank Order the Trustee shall thereupon authenticate and deliver said Notes in accordance with a Bank Order pursuant to Section 303 of the Base Indenture without any further action by the Bank (other than as required by the Base Indenture).
Section 402. Payment at Maturity.
In connection with the maturity of the Notes on the Maturity Date, the Bank shall repay the aggregate principal amount of the Notes, together with any accrued and unpaid interest to, but excluding the Maturity Date, in cash. In the event the Bank does not make such payment, the sole remedy of the Holders shall be recourse to the Limited Recourse Trust Assets.
ARTICLE FIVE
REMEDIES
Section 501. Applicability of Article Five of Base Indenture.
For the avoidance of doubt, except as set forth in this Article Five, Article Five of the Base Indenture applies to the Notes.
Section 502. Events of Default.
Notwithstanding any other provisions of the Base Indenture, and for greater certainty, none of (i) the non-payment of principal or interest on the Notes, (ii) a default in the performance of any other covenant of the Bank in the Indenture or (iii) the occurrence of a Trigger Event (including an NVCC Automatic Conversion) shall constitute an Event of Default under this Fifth Supplemental Indenture or the Notes.
In addition, by acquiring any Note, each Holder and Beneficial Owner of such Note or any interest therein, including any Person acquiring any such Note or interest therein after the date hereof, is deemed to irrevocably acknowledge and agree with and for the benefit of the Bank and the Trustee that a Trigger Event (including an NVCC Automatic Conversion) shall not give rise to an Event of Default or a default for purposes of Section 315(b) (Notice of Default) and Section 315(c) (Duties of the Trustee in Case of Default) of the Trust Indenture Act.
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Section 503. Recourse to Limited Recourse Trust Assets Is Sole Remedy.
For purposes of the Notes, Section 502 of the Base Indenture is hereby replaced in its entirety as follows:
Notwithstanding any other provision in the Indenture or the Notes, by acquiring any Note, each Holder and Beneficial Owner of such Note or any interest therein, including any Person acquiring any such Note or interest therein after the date hereof, is deemed to irrevocably acknowledge and agree with and for the benefit of the Bank and the Trustee that the delivery of such Holder’s proportionate share of the Limited Recourse Trust Assets to such Holder shall exhaust all remedies of such Holder under the Notes including in connection with any Event of Default. All claims of a Holder against the Bank under the Notes shall be extinguished upon receipt by such Holder of such Holder’s proportionate share of the Limited Recourse Trust Assets. If the Bank does not deliver, or fails to cause the Limited Recourse Trustee to deliver, a Holder’s proportionate share of the Limited Recourse Trust Assets to such Holder, the sole remedy of such Holder for any claims against the Bank shall be recourse to such Holder’s proportionate share of the Limited Recourse Trust Assets.
For the avoidance of doubt, the delivery of a Holder’s proportionate share of the Limited Recourse Trust Assets to such Holder shall be deemed to be in full satisfaction of the Notes and shall exhaust all remedies of such Holder against the Bank. In the case of any shortfall resulting from the value of the Limited Recourse Trust Assets being less than the principal amount of and any accrued and unpaid interest on, or the Redemption Price of, the Notes, all losses arising from such shortfall shall be borne by such Holders and no claim may be made against the Bank.
Section 504. Suits for Enforcement by Trustees.
For purposes of the Notes, Section 503 of the Base Indenture is hereby replaced in its entirety as follows:
If an Event of Default occurs and is continuing and the Limited Recourse Trustee fails to deliver a Holder’s proportionate share of the Limited Recourse Trust Assets to such Holder, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in the Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy, provided that, for the avoidance of doubt, any remedies and any claims against the Bank shall be subject to the limitations set out in Section 503.
Section 505. Application of Money or Limited Recourse Trust Assets Collected.
For purposes of the Notes, Section 506 of the Base Indenture is hereby replaced in its entirety as follows:
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Any money or Limited Recourse Trust Assets collected by the Trustee pursuant to the Indenture shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money or Limited Recourse Trust Assets on account of principal or interest or of the Redemption Price, as the case may be, upon presentation of the Notes and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due to the Trustee under Section 607 of the Base Indenture;
SECOND: To the payment of the amounts then due and unpaid on account of the principal amount (including any portion of the Redemption Price representing principal) of the Notes in respect of which or for the benefit of which such money or Limited Recourse Trust Assets has been collected; and
THIRD: To the payment of the amounts then due and unpaid on account of interest (including any portion of the Redemption Price representing interest), on the Notes in respect of which or for the benefit of which such money or Limited Recourse Trust Assets has been collected.
Section 506. Limitation on Suits.
For purposes of the Notes, Section 507 of the Base Indenture is hereby replaced in its entirety as follows:
No Holder shall have any right to institute any proceeding, judicial or otherwise, with respect to the Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default or non-payment of the Redemption Price with respect to the Notes or a failure of the Limited Recourse Trustee to deliver such Holder’s proportionate share of the Limited Recourse Trust Assets to such Holder;
(2) the Holders of not less than 25% in principal amount of the Outstanding Notes shall have made written request to the Trustee to institute proceedings in respect of such Event of Default or failure of the Limited Recourse Trustee to deliver the proportionate share of the Limited Recourse Trust Assets to a Holder, in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee full indemnity and/or security against reasonable costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 90 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during such 90-day period by the Majority Holders;
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it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of the Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under the Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.
Section 507. Delay or Omission Not Waiver.
For purposes of the Notes, Section 511 of the Base Indenture is hereby replaced in its entirety as follows:
No delay or omission of the Trustee or of any Holder to exercise any right or remedy accruing upon any Event of Default or failure of the Limited Recourse Trustee to deliver the proportionate share of the Limited Recourse Trust Assets to a Holder, shall impair any such right or remedy or constitute a waiver of any such Event of Default or failure or an acquiescence therein; and, subject to Section 506 of the Indenture, every right and remedy given by the Indenture or by law to the Trustee or to the Holders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders as the case may be.
Section 508. Waiver of Claims Relating to a Trigger Event.
To the extent permitted by the Trust Indenture Act, a Holder or Beneficial Owner waives any and all claims against the Trustee for, agrees not to initiate a suit against the Trustee in respect of, and agrees that the Trustee shall not be liable for, any action that the Trustee takes, or abstains from taking, in either case in connection with the receipt by Holders of the Limited Recourse Trust Assets (which shall be the fully-paid and non-assessable Common Shares then held by the Limited Recourse Trust pursuant to an NVCC Automatic Conversion) upon a Trigger Event.
Section 509. Rights of Holders to Receive Principal Amount and Interest or Redemption Price.
For purposes of the Notes, Section 508 of the Base Indenture is hereby replaced in its entirety as follows:
The Holder of any Note shall have the right to receive payment of: (i) the principal amount of and any accrued and unpaid interest on such Note on the Maturity Date or upon the occurrence of any Recourse Event, or (ii) in the case of a redemption, the Redemption Price on such Note on the Redemption Date (or such other date specified in this Indenture) and to institute suit for the enforcement of any such payment and such rights shall not be impaired without the consent of such Holder, provided, however, that the sole remedy of Holders if the Bank does not make such payment shall be recourse to the Limited Recourse Trust Assets.
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ARTICLE SIX
SATISFACTION AND DISCHARGE
Section 601. Applicability of Article Four of the Base Indenture.
The provisions of Article Four of the Base Indenture shall be replaced in their entirety by this Article Six for the purposes of the Notes.
Section 602. Satisfaction and Discharge of Indenture.
For purposes of the Notes, Section 401 of the Base Indenture is hereby replaced in its entirety as follows:
The Indenture shall upon Bank Request cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Notes herein expressly provided for), and the Trustee, at the expense of the Bank, shall execute proper instruments acknowledging satisfaction and discharge of the Indenture, when
(a) either:
(1) all Notes theretofore authenticated and delivered (other than (i) Notes which have been mutilated, destroyed, lost or stolen and which have been replaced or paid as provided in Section 306 of the Base Indenture and (ii) Notes for whose payment money or Limited Recourse Trust Assets have theretofore been irrevocably deposited in trust or segregated and held in trust by the Bank and thereafter repaid to the Bank or discharged from such trust, as provided in Section 1003 of the Base Indenture or Section 704, as the case may be) have been delivered to a Trustee for cancellation; or
(2) all such Notes not theretofore delivered to the Trustee for cancellation have become due and payable and the Bank has deposited or caused to be deposited with the Trustee in trust (i) funds in an amount sufficient to discharge the entire indebtedness on such Notes for principal amount and interest to the Maturity Date or to the Redemption Date, as the case may be, or (ii) in the event of a Recourse Event, all Limited Recourse Trust Assets which Holders of such Notes are entitled to receive under Section 902;
(b) the Bank has paid or caused to be paid all other sums payable hereunder by the Bank; and
(c) the Bank has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of the Indenture have been complied with.
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Notwithstanding the satisfaction and discharge of the Indenture, the obligations of the Bank to the Trustee under Section 607 of the Base Indenture and, if money or Limited Recourse Trust Assets shall have been deposited with the Trustee pursuant to subclause (2) of Clause (a) of this Section, the obligations of the Trustee under Section 603, Section 707 and the last paragraph of Section 1003 of the Base Indenture shall survive.
Section 603. Application of Trust Money or Limited Recourse Trust Assets.
For purposes of the Notes, Section 402 of the Base Indenture is hereby replaced in its entirety as follows:
Subject to the last paragraph of Section 1003 of the Base Indenture and Section 707, all money or Limited Recourse Trust Assets deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the provisions of the Notes and the Indenture, to the payment, either directly or through any Paying Agent (including the Bank acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal amount and interest, for whose payment such money or Limited Recourse Trust Assets has been deposited with the Trustee.
ARTICLE SEVEN
TRUSTEE
Section 701. Money or Limited Recourse Trust Assets Held in Trust.
The Limited Recourse Trustee shall hold assets in the Limited Recourse Trust in respect of more than one series of limited recourse capital notes and the assets (including the Bank’s preferred shares) for each such series will be held separate from the assets for other series.
Section 702. Conflicting Interests.
To the extent permitted by the Trust Indenture Act, a Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under the Limited Recourse Trust Declaration.
Subject to Section 608 of the Base Indenture, the same Person may be named as the Trustee and the Limited Recourse Trustee.
Notwithstanding any conflict of interest of the Trustee, the Indenture and the Notes shall remain valid.
Section 703. Trustee to Provide Instructions Upon Request of the Bank.
If at any time the Bank requests instructions from the Trustee pursuant to a Bank Order as required under the Limited Recourse Trust Declaration (i) in respect of statutory voting rights or voting rights conferred by the bylaws of the Bank in respect of Preferred Shares held by the Limited Recourse Trustee and a meeting of holders of the Bank’s preferred shares, including the holders of Preferred Shares, has been called or a written consent is sought from the holders of the Bank’s preferred shares, including the
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holders of Preferred Shares (each a “Preferred Share Voting Event”) or (ii) in respect of any consent or approval of Holders required under the terms of the Limited Recourse Trust Declaration and the Indenture in respect of an amendment to the Limited Recourse Trust Declaration (each a “Consent Event”), the Trustee shall provide notice of such Preferred Share Voting Event or Consent Event, as applicable, to the Holders and solicit voting instructions from such Holders in respect of such matters for the purpose of preserving the value of the Holders’ interest in the Notes. In respect of each Preferred Share Voting Event and Consent Event, each Holder shall be entitled to provide instructions in proportion to the aggregate principal amount of Notes held by such Holder.
The Trustee shall deliver to the Bank the voting instructions received from the Holders and the Bank shall direct the Limited Recourse Trustee to (i) vote the Preferred Shares, in respect of each Preferred Share Voting Event, then held by the Limited Recourse Trustee in accordance with such voting instructions (it being understood that the Limited Recourse Trustee shall be directed to vote the Preferred Shares in favor of, against and abstain on, any matter in the same proportion as voted or abstained on by the Holders) or (ii) take such action, or abstain from taking such action, as the case may be, that is the subject matter of the applicable Consent Event and is approved by the consent of the Holders of the requisite principal amount of Outstanding Notes in accordance with Section 914.
Section 704. Limited Recourse Trust Assets for Notes Payments to be Held in Trust.
Subject to applicable laws, any Limited Recourse Trust Assets deposited with the Trustee or any Paying Agent in trust to be applied in the manner provided herein and remaining unclaimed for two years after such principal amount, interest or the Redemption Price has become due and payable shall be paid to the Bank on Bank Order; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Bank for payment or delivery thereof, and all liability of the Trustee or such Paying Agent with respect to such Limited Recourse Trust Assets, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Bank cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the City of Toronto, Ontario, Canada, notice that such Limited Recourse Trust Assets remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such Limited Recourse Trust Assets then remaining will be paid to the Bank.
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ARTICLE EIGHT
COVENANTS
Section 801. Additional Amounts.
(a) All payments made by the Bank under or with respect to the Notes shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of the Government of Canada or any province or territory thereof or by any authority or agency therein or thereof having power to tax (“Canadian Taxes”), unless the Bank is required to withhold or deduct Canadian Taxes by law or by the interpretation or administration thereof. If the Bank is so required to withhold or deduct any amount for or on account of Canadian Taxes from any payment made under or with respect to the Notes, the Bank shall pay to each Holder as additional interest such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each such Holder after such withholding or deduction (and after deducting any Canadian Taxes on such Additional Amounts) shall not be less than the amount such Holder would have received if such Canadian Taxes had not been withheld or deducted, except as set forth below. The Bank shall, if any Additional Amounts shall become payable, promptly notify the Trustee thereof in writing. However, no Additional Amounts shall be payable with respect to a payment made to a Holder in respect of the beneficial owner thereof:
(i) which is subject to such Canadian Taxes by reason of the Holder or beneficial owner not dealing at arm’s-length (for the purposes of the Tax Act) with the Bank at the time of the Bank making of such payment;
(ii) which is subject to such Canadian Taxes by reason of the Holder or beneficial owner being a “specified non-resident shareholder” of the Bank for purposes of the Tax Act or a non-resident person not dealing at arm’s-length with a “specified shareholder” (within the meaning of subsection 18(5) of the Tax Act) of the Bank;
(iii) which is subject to such Canadian Taxes by reason of the Holder or beneficial owner being a “specified entity” in respect of the Bank as defined in proposals to amend the Tax Act with respect to “hybrid mismatch arrangements” contained in Bill C-59 tabled in Parliament on November 30, 2023;
(iv) which is subject to such Canadian Taxes by reason of the Holder or beneficial owner being a resident, domiciliary or national of, engaged in business or maintaining a permanent establishment or other physical presence in or otherwise having some connection with Canada or any province or territory thereof otherwise than by the mere holding of the Notes or the receipt of payments thereunder;
(v) which is subject to such Canadian Taxes by reason of the Holder or beneficial owner’s failure to comply with any certification, identification, documentation or other reporting requirements if compliance is required by law, regulation, administrative practice or an applicable treaty as a precondition to exemption from, or a reduction in the rate of deduction or withholding of, such Canadian Taxes (provided that the Bank advises the Trustee and the Holders of such Notes then outstanding of any change in such requirements);
(vi) with respect to any Note presented for payment more than 30 days after the later of (x) the date payment is due and (y) the date on which funds are made available for payment, except to the extent that the Holder thereof would have been entitled to such Additional Amounts on presenting same for payment on or before such thirtieth day;
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(vii) with respect to any tax that is levied or collected otherwise than by withholding from payments on or in respect of a Note;
(viii) with respect to any estate, inheritance, gift, sale, transfer, personal property or similar tax or other governmental charge; or
(ix) which is a fiduciary or partnership or person other than the sole beneficial owner of such payment to the extent a beneficiary or settlor with respect to such fiduciary, a member of such partnership or such beneficial owner would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner held its interest in the Notes directly.
(b) The Bank shall also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law.
(c) The Bank shall furnish to the Holders of the relevant Notes, within 60 days after the date the payment of any Canadian Taxes is due pursuant to applicable law, certified copies of tax receipts or other documents evidencing such payment.
(d) In any event, no Additional Amounts shall be payable under the provisions described above in respect of any Note in excess of the Additional Amounts which would be required if, at all relevant times, the beneficial owner of such Note were a resident of the United States for purposes of, and was entitled to the benefits of the Canada-U.S. Income Tax Convention (1980), as amended, including any protocols thereto. As a result of the limitation on the payment of Additional Amounts discussed in the preceding sentence of this Section 801(d), the Additional Amounts received by certain Holders in respect of beneficial owners of the Notes may be less than the amount of Canadian Taxes withheld or deducted and, accordingly, the net amount received by such Holders of those Notes shall be less than the amount such Holders would have received had there been no such withholding or deduction in respect of Canadian Taxes.
(e) Wherever in the Indenture there is mentioned, in any context, the payment of principal or interest or any other amount payable under or with respect to a Note, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable as set forth in this Section 801.
(f) In the event of the occurrence of any transaction or event resulting in a successor to the Bank, all references to Canada in the preceding paragraphs of this subsection shall be deemed to be references to the jurisdiction of organization of the successor entity.
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(g) Notwithstanding the provisions of this Section 801, all payments shall be made net of any deduction or withholding imposed or collected pursuant to Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (or any law implementing such an intergovernmental agreement) (any such withholding, a “FATCA Withholding Tax”), and no Additional Amounts shall be payable as a result of any such FATCA Withholding Tax.
Section 802. No Restriction on Other Indebtedness.
The Bank may create, issue or incur any other Indebtedness which, in the event of the insolvency or winding-up of the Bank, would rank in right of payment in priority to, equally with, or subordinate to the Notes.
ARTICLE NINE
LIMITED RECOURSE TRUST
Section 901. Satisfaction of Payment Obligations with Limited Recourse Trust Assets.
Notwithstanding any other provision in the Indenture, the sole remedy of Holders in the event of a Recourse Event (including, for the avoidance of doubt, the non-payment of the principal amount of, interest on or the Redemption Price for the Notes when due) shall be recourse to the Limited Recourse Trust Assets. Upon any such Recourse Event, the principal amount of, and accrued and unpaid interest (if any) on, the Notes will be due and payable; provided that recourse for such principal amount and accrued and unpaid interest shall be solely to the Limited Recourse Trust Assets. All claims of a Holder against the Bank shall be extinguished upon receipt by such Holder of such Holder’s proportionate share of the Limited Recourse Trust Assets. The delivery of a Holder’s proportionate share of the Limited Recourse Trust Assets to such Holder shall be deemed to be in full satisfaction of the Notes and shall exhaust all remedies of such Holder against the Bank in accordance with Section 503 regardless of whether the value of such Limited Recourse Trust Assets is less than the principal amount of and any accrued and unpaid interest on the Notes or the Redemption Price of the Notes, as applicable. Upon the distribution of the Limited Recourse Trust Assets to the Holders, the Bank will instruct the Trustee to cancel the corresponding Notes.
Section 902. Limited Recourse Trust Assets.
(a) In connection with the issuance of the Notes, the Bank will cause the Limited Recourse Trustee to hold Limited Recourse Trust Assets in the Limited Recourse Trust, that will, on the Issue Date, consist of 1,000,000 Preferred Shares.
(b) From and after the Issue Date, in the event of a Recourse Event, each Holder will be entitled to receive from the Limited Recourse Trust, such Holder’s proportionate share of the Limited Recourse Trust Assets.
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(c) Upon the occurrence of a Recourse Event that is a Trigger Event, each Holder will be entitled to receive from the Limited Recourse Trust, such Holder’s proportionate share of the Limited Recourse Trust Assets (subject to Section 903) (which shall be the fully-paid and non-assessable Common Shares (other than any Dividend Common Shares) then held in the Limited Recourse Trust pursuant to an NVCC Automatic Conversion).
(d) In accordance with the Limited Recourse Trust Declaration and subject to the provisions thereof, the Bank shall not permit the Limited Recourse Trustee to distribute any Limited Recourse Trust Assets other than (i) cash that does not constitute proceeds of a Preferred Share Redemption or purchase for cancellation of Preferred Shares, and (ii) in connection with the redemption or cancellation of any Notes or the redemption of the Preferred Shares pursuant to any Preferred Share Redemption. Notwithstanding the foregoing, the Limited Recourse Trustee shall remain free to distribute the Limited Recourse Trust Assets to Holders upon a Recourse Event and to distribute, at any time, to the Bank as sole unitholder of the Limited Recourse Trust (i) any dividends declared and paid on the Preferred Shares while held by the Limited Recourse Trustee, (ii) the proceeds of the sale of any Dividend Common Shares issued to the Limited Recourse Trustee upon an NVCC Automatic Conversion, and (iii) cash received upon redemption of the Preferred Shares in respect of any accrued and unpaid dividends.
(e) If a Recourse Event occurs, the Bank will, no later than one Business Day after the occurrence of such Recourse Event, notify the Limited Recourse Trustee and the Trustee in writing of the occurrence of such Recourse Event, and the Bank will take any necessary actions to cause the Limited Recourse Trustee to deliver to each Holder such Holder’s proportionate share of the Limited Recourse Trust Assets in accordance with the terms of the Limited Recourse Trust Declaration and the Indenture.
Section 903. Right Not to Deliver Common Shares or Preferred Shares.
Notwithstanding any other provision in the Indenture or the Limited Recourse Trust Declaration, the Bank reserves the right not to deliver Common Shares or Preferred Shares to any Person whom the Bank or its transfer agent has reason to believe is an Ineligible Person or any Person who, by virtue of that delivery, would become a Significant Shareholder. In such circumstances, the Bank will hold, as agent for such Persons, the Common Shares or Preferred Shares that would have otherwise been delivered to such Persons and will attempt to facilitate the sale of such Common Shares or Preferred Shares to parties other than the Limited Recourse Trust or the Bank and its Affiliates on behalf of such Persons through a registered dealer to be retained by the Bank on behalf of such Persons. Those sales (if any) may be made at any time and at any price. The Bank shall not be subject to any liability for failure to sell any such Common Shares or Preferred Shares on behalf of such Persons or at any particular price on any particular day. The net proceeds received by the Bank or its transfer agent from the sale of any such Common Shares or Preferred Shares will be divided among the applicable Persons in proportion to the number of Common Shares or Preferred Shares that would otherwise have been delivered to them after deducting the costs of sale and any applicable withholding taxes. The Bank shall deliver a check or send a wire transfer in immediately available funds representing the aggregate net proceeds to the Depository (if the Common Shares or Preferred Shares are then held in the form of one or more global securities) or in all other cases to such Persons in accordance with the regular practices and procedures of the Depository or otherwise.
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Section 904. Trigger Event.
Upon the occurrence of a Trigger Event and immediately following an NVCC Automatic Conversion, each Holder will be entitled to receive from the Limited Recourse Trust, such Holder’s proportionate share of the Limited Recourse Trust Assets, subject to Section 903.
Section 905. Conversion Rate.
The number of Common Shares that will be held in the Limited Recourse Trust following an NVCC Automatic Conversion and immediately before the delivery of the Common Shares (other than any Dividend Common Shares) to Holders will be equal to the product of (a) the number of Preferred Shares held in the Limited Recourse Trust immediately prior to an NVCC Automatic Conversion, times (b) the quotient obtained by dividing (i) the Multiplier multiplied by the Share Value, by (ii) the Conversion Price (rounding down, if necessary to the nearest whole number of Common Shares). For the purposes of this Section 905, the terms “Multiplier,” “Share Value” and “Conversion Price” shall have the respective meanings ascribed to them in the terms and conditions applicable to the Preferred Shares.
Each Holder shall receive the number of Common Shares (subject to Section 903 and excluding any Dividend Common Shares) in proportion to the principal amount of the Outstanding Notes held by each Holder. For greater certainty, any accrued and unpaid interest will not be taken into account.
Section 906. Time of Delivery.
The delivery of the Common Shares is deemed to be effected immediately following the occurrence of an NVCC Automatic Conversion and the Person or Persons entitled to receive Limited Recourse Trust Assets (which shall be the fully-paid and non-assessable Common Shares then held in the Limited Recourse Trust pursuant to an NVCC Automatic Conversion (other than any Dividend Common Shares)) upon a Recourse Event that is a Trigger Event shall be treated for all purposes as having become the holder or holders of record of such Common Shares at such time. Subject to Section 903, as promptly as practicable after the occurrence of a Trigger Event, the Bank shall announce the applicable Recourse Event by way of a press release and shall give notice (a “Trigger Event Notice”) of the delivery of the Common Shares in accordance with the provisions of Section 106 of the Base Indenture to the Holders and the Trustee. Immediately following the NVCC Automatic Conversion, any certificates representing the Notes shall represent the right to receive upon surrender thereof the applicable number of Common Shares as specified in Section 905. The provisions hereof shall be mandatory and binding upon the Bank and all Holders notwithstanding anything else including, without limitation: (i) the existence or prior occurrence of an Event of Default in respect of the Notes; (ii) any prior action to or in furtherance of a redeeming, exchanging or converting the Notes pursuant to the other terms and conditions of the Indenture and (iii) any delay or impediment to the issuance of the Common Shares pursuant to an NVCC Automatic Conversion or the delivery of the Common Shares to the Holders.
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Section 907. Trigger Event Procedure.
(a) If the Notes are held in the form of one or more Global Notes at the time of the Trigger Event, within two Business Days of its receipt of the Trigger Event Notice, the Trustee shall, acting pursuant to the Indenture, cause such notice to be transmitted to the direct participants of DTC holding the Notes at such time.
(b) If the Notes are held in definitive form at the time of the Trigger Event, the Bank will provide Holders with a notice describing, among other things, how the Bank intends to cause the Limited Recourse Trustee to deliver the evidence of beneficial ownership of the Common Shares and requesting such Holders to provide the Bank with their relevant securities account information for purposes of receiving such evidence of beneficial ownership.
(c) The Bank shall have no liability to any Holder or Beneficial Owner of the Notes from any delay in the receipt of the evidence of beneficial ownership of the Common Shares resulting from the Bank’s compliance with applicable operational and legal requirements.
Section 908. Duties of Trustee Upon Trigger Event.
Upon receipt by Holders of their proportionate share of the Limited Recourse Trust Assets, the Trustee shall not be required to take any further directions from Holders or Beneficial Owners of the Notes under the Indenture. The Indenture shall impose no duties upon the Trustee whatsoever with respect to any calculations in connection with an NVCC Automatic Conversion or delivery of Common Shares upon a Trigger Event (except for the delivery of a notice by the Trustee to participants of DTC following a Trigger Event pursuant to Section 907).
Section 909. General.
(a) The delivery to a Holder of its proportionate share of the Limited Recourse Trust Assets (which shall be fully-paid and non-assessable Common Shares then held by the Limited Recourse Trustee pursuant to an NVCC Automatic Conversion (other than any Dividend Common Shares)) shall exhaust all remedies of such Holder under the Notes including in connection with any Trigger Event. All claims of a Holder against the Bank shall be extinguished upon receipt by such Holder of the applicable Common Shares. If tax is required to be withheld from such delivery of Common Shares, the number of Common Shares received by a Holder shall reflect an amount net of any applicable withholding tax.
(b) Notwithstanding any other provision of the Indenture or the Notes, the Trigger Event and the delivery of Common Shares to the Holders pursuant to the provisions hereof shall not be an Event of Default and the only consequence of a Trigger Event shall be the right of the Holders to receive the Limited Recourse Trust Assets (which shall be the fully-paid and non-assessable Common Shares then held by the Limited Recourse Trustee pursuant to an NVCC Automatic Conversion (other than any Dividend Common Shares)).
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(c) The Trustee shall have no duty to determine the occurrence of a Trigger Event or any calculations in connection with such Trigger Event. The Trustee makes no representation as to the validity or value of any securities or assets delivered upon a Trigger Event, and the Trustee shall not be responsible for the Bank’s failure to comply with any provisions of this Article Nine.
(d) Notwithstanding any other provision of the Indenture or the Notes, a failure to provide any notice referred to in Section 906, Section 907 or Section 908, shall not have any impact on the effectiveness of, or otherwise invalidate, any of the recourse mechanics described in the Indenture, or give the Holders and Beneficial Owners of the Notes any rights as a result of such failure.
Section 910. Agreements of Holders and Beneficial Owners of Notes.
By acquiring any Note, each Holder and Beneficial Owner of such Note or any interest therein, including any Person acquiring any such Note or interest therein after the date hereof, shall be deemed to have irrevocably acknowledged and agreed with and for the benefit of the Bank and the Trustee as follows:
(a) that the delivery of the Holder’s proportionate share of the Limited Recourse Trust Assets to such Holder shall exhaust all remedies of such Holder against the Bank under the Notes, including in connection with any Recourse Event that is a Trigger Event, and all claims of a Holder against the Bank shall be extinguished upon receipt by such Holder of such Holder’s proportionate share of the Limited Recourse Trust Assets (which shall be the fully-paid and non-assessable Common Shares then held by the Limited Recourse Trustee pursuant to an NVCC Automatic Conversion (other than any Dividend Common Shares)) upon the occurrence of a Recourse Event that is a Trigger Event, which occurrence and resulting delivery of Common Shares shall occur without any further action on the part of such Holder or Beneficial Owner or the Trustee;
(b) that the delivery of Common Shares or the occurrence of a Trigger Event shall not constitute an Event of Default under the terms of the Notes or the Indenture, and upon receipt by Holders of their proportionate share of the Limited Recourse Trust Assets, no Holder or Beneficial Owner of the Notes shall have any rights against the Bank with respect to the repayment of the principal of, or interest on, the Notes;
(c) that, (i) upon receipt by Holders of their proportionate share of the Limited Recourse Trust Assets, the Trustee shall not be required to take any further directions from Holders or Beneficial Owners of the Notes under the Indenture and (ii) the Indenture shall impose no duties upon the Trustee whatsoever with respect to the delivery of the Limited Recourse Trust Assets (which shall be the fully-paid and non-assessable Common Shares then held by the Limited Recourse Trustee pursuant to an NVCC Automatic Conversion (other than any Dividend Common Shares)) immediately following an NVCC Automatic Conversion (except for the delivery of a notice by the Trustee to participants of DTC following a Trigger Event pursuant to Section 907);
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(d) that such Holder or Beneficial Owner authorizes, directs and requests DTC and any direct participant in DTC or other intermediary through which it holds such Notes to take any and all necessary action, if required, to implement the delivery of the Limited Recourse Trust Assets (which shall be the fully-paid and non-assessable Common Shares then held in the Limited Recourse Trust pursuant to an NVCC Automatic Conversion (other than any Dividend Common Shares)) immediately following an NVCC Automatic Conversion without any further action or direction on the part of such Holder or such Beneficial Owner or the Trustee; and
(e) that such Holder or Beneficial Owner acknowledges and agrees that all authority conferred or agreed to be conferred by any Holder and Beneficial Owner pursuant to the provisions described above shall be binding upon the successors, assigns, heirs, executors, administrators, trustees in bankruptcy and legal representatives of each Holder and Beneficial Owner of a Note or any interest therein.
Section 911. Amendments to Limited Recourse Trust Declaration.
(a) Any amendment or supplemental declaration of trust for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Limited Recourse Trust Declaration shall require the consent of the Majority Holders; provided, however, that to the extent any such addition, change or elimination is in respect of the definition of “Trust Assets” in Section 1.1 (Definitions), Section 2.3 (Objective of Trust), Section 2.4 (Ownership of Trust Assets), Section 2.5 (Binding Effect), Section 2.6 (Legal Character of Trust), Section 10.6 (Acquisition and Administration of Trust Assets) and Article 14 (Termination) of the Limited Recourse Trust Declaration (or the equivalent sections of the Limited Recourse Trust Declaration following any addition, change or elimination to the Limited Recourse Trust Declaration permitted in accordance with this Section 911), such addition, change or elimination shall not be made without the consent of the Holder of each Outstanding Note affected thereby. For certainty, a change to the governing law of the Limited Recourse Trust Declaration in accordance with the provisions of the Limited Recourse Trust Declaration shall not require the consent of any Holders. It shall not be necessary for any Act of Holders under this Section 911(a) to approve the particular form of any proposed amendment or supplemental declaration of trust, but it shall be sufficient if such Act shall approve the substance thereof.
(b) Notwithstanding Section 911(a), without the consent of any holders, the Limited Recourse Trustee may make any amendment to the Limited Recourse Trust Declaration or enter into supplemental declarations of trust to the Limited Recourse Trust Declaration for any of the following purposes:
(i) to evidence and provide for the acceptance of appointment by a successor Limited Recourse Trustee; or
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(ii) to cure any ambiguity, to correct or supplement any provision of the Limited Recourse Trust Declaration which may be defective or inconsistent with any other provision of the Limited Recourse Trust Declaration, to add, amend, correct or supplement any provision of the Limited Recourse Trust Declaration which may become incorrect or inaccurate as a result of the passage of time (including changes to the provisions of legislation referred to in the Limited Recourse Trust Declaration) or to make any other provisions with respect to matters or questions arising under the Limited Recourse Trust Declaration, provided that such action pursuant to this Section 914(b) shall not adversely affect the interests of the Holders in any material respect.
ARTICLE TEN
SUBORDINATION OF NOTES
Section 1001. Applicability of Article Fifteen of Base Indenture.
(a) For the avoidance of doubt, the provisions of Article Fifteen of the Base Indenture shall be applicable to the Notes, except as modified herein.
(b) Solely for purposes of the Notes (and not in relation to any other series of Securities), all references in Article Fifteen of the Base Indenture to “Senior Indebtedness” shall hereby be replaced with references to “Higher Ranked Indebtedness.”
Section 1002. Notes Subordinate to Deposit Liabilities and Other Indebtedness.
For purposes of the Notes, Section 1501 of the Base Indenture is hereby replaced in its entirety as follows:
The Notes are direct unsecured debt obligations constituting subordinated indebtedness within the meaning of the Bank Act and, in the event of the insolvency or winding-up of the Bank, the Indebtedness evidenced by the Notes shall rank:
(a) subordinate in right of payment to the prior payment in full of all Higher Ranked Indebtedness; and
(b) in right of payment equally with and not prior to the Junior Subordinated Indebtedness (other than the Junior Subordinated Indebtedness which by its terms ranks subordinate to the Notes),
in each case, whether now outstanding or hereinafter incurred.
Notwithstanding the foregoing, in the event of the occurrence of a Recourse Event, including an Event of Default, the sole remedy of the Holders shall be recourse to the Limited Recourse Trust Assets.
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The Bank agrees and each Holder and Beneficial Owner of any Note, by his, her or its acceptance of such Note, also agrees and shall be deemed conclusively to have agreed, for the benefit of the present and future holders of Higher Ranked Indebtedness, and for the benefit of all present and future holders of Indebtedness to which the Notes are subordinate in right of payment, to the provisions of this Article Ten and Article Fifteen of the Base Indenture and the Bank and each Holder of any Note by his, her or its acceptance of such Note shall be bound by such provisions.
ARTICLE ELEVEN
REDEMPTION OF NOTES
Section 1101. Applicability of Article Eleven of the Base Indenture.
For the avoidance of doubt, the provisions of Article Eleven of the Base Indenture shall be applicable with respect to the Notes, except as modified herein. In addition, for purposes of the Notes, Section 1101 of the Base Indenture is hereby replaced in its entirety as follows:
Subject to any applicable law restricting the redemption of the Notes, including the Bank Act and the regulations and guidelines thereunder, including the CAR Guideline, and provided that a Trigger Event has not occurred, the Notes shall be redeemable in accordance with this Article Eleven. For certainty, the Bank will not redeem the Notes under any circumstances if such redemption would, directly or indirectly, result in the Bank’s breach of any provision of the Bank Act.
Subject to any law restricting the redemption of the Securities, Securities of any series that are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 301 for such Securities) in accordance with this Article.
Section 1102. Regulatory or Tax Redemption.
The Bank may, at its option, with the prior written approval of the Superintendent and without the consent of the Holders of the Notes, redeem the Notes, in whole but not in part, on not less than 10 days’ and not more than 60 days’ prior notice to the Holders of the Notes, (i) at any time following a Regulatory Event Date, or (ii) at any time following the occurrence of a Tax Event Date, in each case at the Redemption Price (a “Special Event Redemption”).
From and after the date of a Special Event Redemption, any Outstanding Notes so redeemed shall cease to be outstanding, the Holders thereof shall cease to be entitled to interest thereon, and any certificates representing the Notes shall represent only the right to receive, upon surrender thereof, the Redemption Price.
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Section 1103. Optional Redemption.
The Bank may, at its option, with the prior written approval of the Superintendent and without the consent of the Holders, redeem the Notes, in whole or in part, on not less than 10 days’ and not more than 60 days’ prior notice to the Holders of the Notes, on the Initial Interest Reset Date and on each February 26, May 26, August 26 and November 26 thereafter, at the Redemption Price (an “Optional Redemption”).
From and after the date of an Optional Redemption, any Outstanding Notes so redeemed shall cease to be outstanding, the Holders thereof shall cease to be entitled to interest thereon, and any certificates representing the Notes shall represent only the right to receive, upon surrender thereof, the Redemption Price.
Section 1104. Mandatory Redemption Upon Redemption of the Preferred Shares.
Upon the occurrence of a Preferred Share Redemption prior to the Maturity Date (such redemption will be subject to the prior written approval of the Superintendent), a corresponding number of Outstanding Notes with an aggregate principal amount equal to the aggregate face amount of Preferred Shares redeemed by the Bank pursuant to the Preferred Share Redemption shall automatically and immediately be redeemed, for a cash amount equal to the Redemption Price (a “Mandatory Redemption”), on a full and permanent basis, without any action on the part of, or the consent of, the Holders. For certainty, to the extent that, in accordance with the terms of the Indenture, the Bank has immediately prior to or concurrently with such redemption of Preferred Shares redeemed or purchased for cancellation outstanding Notes with an aggregate principal amount equal to the aggregate face amount of Preferred Shares being redeemed, such requirement to redeem a corresponding number of Notes shall be deemed satisfied.
From and after the date of a Mandatory Redemption, any Outstanding Notes so redeemed shall cease to be outstanding, the Holders thereof shall cease to be entitled to interest thereon, and any certificates representing the Notes shall represent only the right to receive, upon surrender thereof, the Redemption Price.
Section 1105. Purchase for Cancellation.
At any time, the Bank may, with the prior written approval of the Superintendent, purchase Notes, in whole or in part, in the open market or by tender (available to all Holders of Notes), by private contract or otherwise at such price or prices and upon such terms and conditions as the Bank in its absolute discretion may determine, subject, however, to any applicable law restricting the purchase of Notes. Any Notes purchased by the Bank shall be cancelled. Notwithstanding the foregoing, any subsidiary of the Bank may purchase Notes in the ordinary course of its business of dealing in securities.
If any Notes are so purchased for cancellation, subject to the provisions of the Bank Act, the consent of the Superintendent and various restrictions on the retirement of Preferred Shares, the Bank shall redeem a corresponding number of Preferred Shares (which Preferred Shares will have a face amount equal to the aggregate principal amount of the Notes to be cancelled) then held in the Limited Recourse Trust for cancellation.
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Section 1106. Redemption Obligations.
Except as provided in this Article Eleven, the Bank shall not be required to make mandatory redemption payments or sinking fund payments with respect to the Notes.
Section 1107. Redemption Generally.
(a) If the Bank does not pay the applicable Redemption Price in cash when required, a Recourse Event will have occurred and each Holder of the Notes’ sole remedy shall be the delivery of such Holder’s proportionate share of the Limited Recourse Trust Assets.
(b) The Bank will not redeem the Notes under any circumstance if such redemption would, directly or indirectly, result in the Bank’s breach of any provision of the Bank Act or CAR Guideline, as may be amended from time to time.
(c) Any Notes redeemed by the Bank will be cancelled and will not be reissued. The Notes are not redeemable at the option or election of Holders or Beneficial Owners.
Section 1108. Notice of Redemption.
(a) The occurrence of a Trigger Event prior to the Redemption Date shall automatically rescind a notice of redemption and, in such circumstances, no Notes shall be redeemed.
(b) Notwithstanding any other provision of the Indenture or the Notes, a failure to provide any notice (except for the notice in Section 1103 of the Base Indenture) referred to in Article Eleven of the Base Indenture or this Article Eleven shall not have any impact on the effectiveness of, or otherwise invalidate, any redemption, or give the Holders and Beneficial Owners of the Notes any rights as a result of such failure.
Section 1109. Agreements of Holders and Beneficial Owners of Notes.
By acquiring any Note, each Holder and Beneficial Owner of such Note or any interest therein, including any Person acquiring any such Note or interest therein after the date hereof, shall be deemed to have irrevocably acknowledged and agreed with and for the benefit of the Bank and the Trustee as follows:
(a) that upon the occurrence of any redemption of Notes, such redemption shall, in each case, occur without any further action on the part of such Holder or Beneficial Owner; and
(b) that the occurrence of any redemption of Notes shall not constitute an Event of Default under the terms of the Notes or the Indenture, and following such redemption, Holders and Beneficial Owners of the Notes will not have any rights against the Bank with respect to the repayment of the principal amount of, or interest on, the Notes other than if the Redemption Price is not paid in cash as required, in which case the recourse of Holders is limited to receiving the Limited Recourse Trust Assets.
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ARTICLE TWELVE
MISCELLANEOUS PROVISIONS
Section 1201. Ratification of Base Indenture.
The Base Indenture, as supplemented by this Fifth Supplemental Indenture, is in all respects ratified and confirmed, and this Fifth Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and therein provided.
Section 1202. Trustee Not Responsible for Recitals.
The recitals contained herein and in the Notes, except for a Trustee’s certificate of authentication, shall be taken as the statements of the Bank, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Fifth Supplemental Indenture or of the Notes. The Trustee shall not be accountable for the use or application by the Bank of Notes or the proceeds thereof.
Section 1203. Execution in Counterparts; E-signatures; Authorized Officer.
This Fifth 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 Fifth Supplemental Indenture and of signature pages by (i) facsimile or (ii) electronic format (i.e., “.pdf” or “.tif”) transmission or (iii) 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 New York Uniform Commercial Code (collectively, “Signature Law”) shall constitute effective execution and delivery of this Fifth Supplemental Indenture as to the parties hereto and may be used in lieu of the original Fifth Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile, electronic format (i.e., “.pdf” or “.tif”) or any electronic signature permitted by Signature Law shall be deemed to be their original signatures for all purposes. 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.
Notwithstanding anything to the contrary in the Indenture, the definition of “Authorized Officer” in the Base Indenture shall be amended by inserting the words “, or the Global Head, Capital Management and Funding” immediately following the term “Deputy Treasurer”.
-32-
Section 1204. Indenture and Notes Solely Corporate Obligations.
No recourse under or upon any obligation, covenant or agreement of the Indenture or of Notes, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator, shareholder, officer or director, as such, past, present or future, of the Bank or of any successor corporation, either directly or through the Bank, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that the Indenture and the Notes are solely corporate obligations, and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, shareholders, officers or directors, as such, of the Bank or of any successor corporation, or any of them, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in the Indenture or the Notes or implied therefrom; and that any and all such personal liability, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, shareholder, officer or director, as such, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in the Indenture or in the Notes or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Fifth Supplemental Indenture and the issue of the Notes.
Section 1205. Agreement of Subsequent Investors.
Holders or Beneficial Owners of Notes that acquire the Notes in the secondary market shall be deemed to acknowledge, agree to be bound by and consent to the same provisions specified in the Indenture to the same extent as the Holders or Beneficial Owners of the Notes that acquire the Notes upon their initial issuance, including, without limitation, with respect to the acknowledgement and agreement to be bound by and consent to the terms of the Notes, including in relation to any NVCC Automatic Conversion.
Section 1206. Waiver of Jury Trial.
EACH OF THE BANK AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS FIFTH SUPPLEMENTAL INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
[Signature page follows]
-33-
IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental Indenture to be duly executed, all as of the day and year first above written.
| BANK OF MONTREAL | ||
| By: | /s/ Paras Jhaveri | |
| Name: Paras Jhaveri | ||
| Title: Global Head, Capital Management and Funding | ||
| COMPUTERSHARE TRUST COMPANY, N.A., as successor to Wells Fargo Bank, National Association | ||
| as Trustee | ||
| By: | /s/ Corey Dahlstrand | |
| Name: Corey Dahlstrand | ||
| Title: Vice President | ||
[Signature Page to Fifth Supplemental Indenture]
Exhibit A
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 SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE BANK (AS DEFINED BELOW) 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.
BANK OF MONTREAL
7.700% Fixed Rate Reset Limited Recourse Capital Notes, Series 4
(Non-Viability Contingent Capital (NVCC))
(Subordinated Indebtedness)
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.
| No.: N- | CUSIP No.: 06368L Q58
$ | |
| Issue Date: March 8, 2024 Stated Maturity: May 26, 2084 |
Bank of Montreal, a Schedule I bank under the Bank Act (Canada) (herein called the “Bank”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of $ ( UNITED STATES DOLLARS) on May 26, 2084, and to pay interest thereon from and including the Issue Date to, but excluding, May 26, 2029 (the “Initial Interest Reset Date”), at a rate of 7.700% per annum, and during the period from and including
Exh. A-1
the Initial Interest Reset Date to, but excluding, the next Interest Reset Date and each five year period thereafter from and including such Interest Reset Date to, but excluding, the next Interest Reset Date (a “Rate Reset Period”), at a rate per annum equal to the U.S. Treasury Rate on the applicable Interest Rate Calculation Date plus 3.452%. For each Rate Reset Period, the U.S. Treasury Rate shall be determined by the Calculation Agent on the third Business Day immediately preceding the applicable Interest Reset Date. Interest on the Securities will be payable quarterly in arrears on February 26, May 26, August 26 and November 26 of each year (each, an “Interest Payment Date”), commencing May 26, 2024. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date shall, as provided in such 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 a record date (a “Regular Record Date”) for such interest, which shall be the February 11, May 11, August 11 or November 11 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. If any Interest Payment Date, the Maturity Date or any Redemption Date falls on a day that is not a Business Day, the Bank shall postpone the making of such interest or principal payment to the next succeeding Business Day (and no interest shall be paid in respect of the delay). Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date and may either 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 date fixed by the Trustee (a “Special Record Date”) for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Security may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. A “Business Day” means each Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which banking institutions are authorized or required by law or executive order to close in The City of New York, New York or Toronto, Ontario.
Payment of the principal of and interest on this Security shall be made at the office or agency of the Bank maintained for that purpose, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided that payment of the principal of and interest on the Securities represented by one or more Global Securities registered in the name of or held by DTC or its nominee shall be payable in immediately available funds to DTC or its nominee, as the case may be, as the registered Holder of such Global Security.
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 a Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose. The signature of the executing officer of the Bank on this Security may be manual, by facsimile, electronic format (i.e. “.pdf” or “.tif”) or any electronic signature permitted by Signature Law.
Exh. A-2
IN WITNESS WHEREOF, the Bank has caused this instrument to be duly executed.
Dated: March 8, 2024
| BANK OF MONTREAL | ||
| By: | ||
| Name: Paras Jhaveri | ||
| Title: Global Head, Capital Management and Funding | ||
Exh. A-3
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Dated: March 8, 2024
| COMPUTERSHARE TRUST COMPANY, N.A. as successor to Wells Fargo Bank, National Association, |
| As Trustee |
| By: |
| Name: |
| Title: |
Exh. A-4
(REVERSE OF SECURITY)
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 an Indenture, dated as of December 12, 2017 (the “Base Indenture”), among the Bank and Computershare Trust Company, N.A. as successor to Wells Fargo Bank, National Association (herein called the “Trustee”, which terms include any successor trustee under the Indenture), as amended and supplemented by the Fifth Supplemental Indenture, dated as of March 8, 2024, among the Bank and the Trustee (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), 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. This Security is one of the series designated on the face hereof initially limited in aggregate principal amount to $1,000,000,000, provided the Bank may, without the consent of any Holder, at any time and from time to time, increase the initial principal amount.
The Securities are the Bank’s direct unsecured debt obligations, constituting subordinated indebtedness within the meaning of the Bank Act.
The indebtedness evidenced by this Security is a direct unsecured debt obligation constituting subordinated indebtedness within the meaning of the Bank Act and, in the event of the insolvency or winding-up of the Bank, the indebtedness evidenced by this Security shall rank (1) subordinate in right of payment to the prior payment in full of all Higher Ranked Indebtedness and (2) in right of payment equally with and not prior to the Junior Subordinated Indebtedness (other than the Junior Subordinated Indebtedness which by its terms ranks subordinate to the Securities), in each case, whether now outstanding or hereinafter incurred. Notwithstanding the foregoing, in the event of the occurrence of a Recourse Event, including an Event of Default, the sole remedy of the Holders shall be recourse to the Limited Recourse Trust Assets. Each Holder of this Security, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on his, her or its behalf to take such actions as may be necessary or appropriate to effectuate the subordination so provided and (c) appoints the Trustee as his or her attorney-in-fact for any and all such purposes. Each Holder hereof, by his or her acceptance hereof, waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each Holder of Higher Ranked Indebtedness and Junior Subordinated Indebtedness whether now outstanding or hereafter created, incurred, assumed or guaranteed, and waives reliance by each such Holder upon said provisions.
The Bank may, at its option, with the prior written approval of the Superintendent and without the consent of the Holders, redeem the Securities, in whole or in part, on not less than 10 days’ and not more than 60 days’ prior notice to the Holders of the Securities, on the Initial Interest Reset Date and on each February 26, May 26, August 26 and November 26 thereafter, at the Redemption Price.
Exh. A-5
The Bank may, at its option, with the prior written approval of the Superintendent and without the consent of the Holders, redeem the Securities, in whole but not in part, on not less than 10 days’ and not more than 60 days’ prior notice to the Holders of the Securities, (i) at any time following a Regulatory Event Date, or (ii) at any time following the occurrence of a Tax Event Date, in each case at the Redemption Price.
Upon any redemption by the Bank of the Preferred Shares held in the Limited Recourse Trust in accordance with the terms of such shares prior to the Maturity Date (such redemption will be subject to the prior written approval of the Superintendent), outstanding Securities with an aggregate principal amount equal to the aggregate face amount of Preferred Shares redeemed by the Bank pursuant to such redemption shall automatically and immediately be redeemed, for a cash amount equal to the Redemption Price, on a full and permanent basis, without any action on the part of, or the consent of, the Holders of Securities.
Upon the occurrence of an Event of Default, the sole remedy of a Holder shall be recourse to such Holder’s proportionate share of the Limited Recourse Trust Assets held in respect of the Securities, and all claims of the Holder against the Bank under the Securities shall be extinguished upon receipt of such Limited Recourse Trust Assets.
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, or in certain cases the unanimous consent of each of such Holders. 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. The Indenture prohibits the Bank from amending or varying terms of the Securities that would affect the recognition of the Securities as regulatory capital under capital adequacy requirements adopted by the Superintendent without the prior written approval of the Superintendent.
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 interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed, provided that, as provided in and subject to the provisions of the Indenture, the sole remedy of a Holder of the Securities will be recourse to such Holder’s proportionate share of the Limited Recourse Trust Assets held in respect of the Securities. Delivery of Limited Recourse Trust Assets to the Holders of Securities shall be applied to the payment of the principal amount of the Securities, and all claims of the Holders of Securities against the Bank under the Securities will be extinguished upon receipt of the Limited Recourse Trust Assets.
Exh. A-6
No Holder shall have any right to institute any proceeding, judicial or otherwise, with respect to the Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless: (i) such Holder has previously given written notice to the Trustee of a continuing Event of Default or a failure of the Limited Recourse Trustee to deliver such Holder’s proportionate share of the Limited Recourse Trust Assets to such Holder; (ii) the Holders of not less than 25% in principal amount of the Outstanding Securities shall have made written request to the Trustee to institute proceedings in respect of such Event of Default or failure of the Limited Recourse Trustee to deliver the proportionate share of the Limited Recourse Trust Assets to a Holder, in its own name as Trustee hereunder; (iii) such Holder or Holders have offered to the Trustee full indemnity and/or security against reasonable costs, expenses and liabilities to be incurred in compliance with such request; (iv) the Trustee for 90 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and (v) no direction inconsistent with such written request has been given to the Trustee during such 90-day period by the Majority Holders; it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of the Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under the Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.
For disclosure purposes under the Interest Act (Canada), whenever in the Securities of this 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.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Bank in any place where the principal of and interest on this 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 attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, shall be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations of $200,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
Any Holder who transfers any Security shall provide or cause to be provided to the Trustee all information necessary to allow the Trustee to comply with any applicable tax reporting obligations, including without limitation any cost basis reporting obligations under Internal Revenue Code Section 6045. The Trustee may rely on information provided to it and shall have no responsibility to verify or ensure the accuracy of such information.
Exh. A-7
No service charge shall be made for any such registration of transfer or exchange, but the Bank and the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this 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 this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Bank, the Trustee nor any such agent shall be affected by notice to the contrary.
The following resale restriction is only applicable to residents of Canada who purchased this Security pursuant to a prospectus exemption under applicable Canadian securities laws: Unless permitted under securities legislation, the holder of this security must not trade the security before July 9, 2024.
All terms used in this Security not otherwise defined herein that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Exh. A-8
Exhibit 5.1
|
TELEPHONE: 1-212-558-4000
FACSIMILE: 1-212-558-3588
WWW.SULLCROM.COM |
125 Broad Street
LOS ANGELES ● PALO ALTO ● WASHINGTON, D.C.
BRUSSELS ● FRANKFURT ● LONDON ● PARIS
BEIJING ● HONG KONG ● TOKYO
MELBOURNE ● SYDNEY |
March 8, 2024
Bank of Montreal,
100 King Street West,
1 First Canadian Place,
Toronto, Ontario,
Canada M5X 1A1.
Ladies and Gentlemen:
We are acting as counsel to Bank of Montreal, a Canadian chartered bank (the “Bank”), in connection with the issuance by the Bank of (i) US$1,000,000,000 aggregate principal amount of the Bank’s 7.700% Fixed Rate Reset Limited Recourse Capital Notes, Series 4 (Non-Viability Contingent Capital (NVCC)) (Subordinated Indebtedness) (the “Notes”) and (ii) 1,000,000 Non-Cumulative 5-Year Fixed Rate Reset Class B Preferred Shares, Series 53 (Non-Viability Contingent Capital (NVCC)) (the “Preferred Shares”). The Bank filed with the Securities and Exchange Commission, on May 26, 2022, a registration statement on Form F-3 (File No. 333-264388), (the “Registration Statement”) under the Securities Act of 1933 (the “Act”) relating to, among other things, the proposed offer and sale of US$1,000,000,000 aggregate principal amount of the Notes. The Notes are being issued pursuant to the Indenture, dated as of December 12, 2017, as supplemented by the Fifth Supplemental Indenture thereto, dated as of March 8, 2024 (together, the “Indenture”), between the Bank and Computershare Trust Company, N.A., as successor to Wells Fargo Bank, National Association, as trustee (the “Trustee”). The Preferred Shares will be convertible into common shares of the Bank upon the occurrence of a Trigger Event (as such term is defined in the provisions attaching to the Preferred Shares).
We have examined such corporate records, certificates and other documents, and such questions of United States federal and New York state law, as we have considered necessary or appropriate for the purposes of this opinion. Upon the basis of such examination, it is our opinion that the Notes constitute valid and legally binding obligations of the Bank, 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; provided, however, that we express no opinion with respect to the first sentence of Section 301(b) and Article Fifteen of the Indenture and Sections 903, 904, 905, 906, 909, 910, and 1002 of the Fifth Supplemental Indenture (and the corresponding provisions in the Notes) that, under the terms of the Indenture or the Notes, as applicable, are governed by the laws of the Province of Ontario and the federal law of Canada applicable therein.
| Bank of Montreal | -2- |
The foregoing opinion is limited to the federal laws of the United States and the laws of the State of New York, and we are expressing no opinion as to the effect of the laws of any other jurisdiction.
In rendering the foregoing opinion, we are not passing upon, and assume no responsibility for, any disclosure in the Registration Statement or any related prospectus or other offering material regarding the Bank or the Notes or their offering and sale.
We have relied as to certain factual matters on information obtained from public officials, officers of the Bank and other sources believed by us to be responsible, and we have assumed, without independent verification, that the Bank is duly organized, validly existing and in good standing under the laws of Canada, that all corporate action by the Bank related to the Notes was duly authorized as a matter of Canadian law, that the Indenture has been duly authorized, executed and delivered by the Bank insofar as the laws of Canada are concerned, that the Indenture has been duly authorized, executed and delivered by the Trustee, that the Notes conform to the specimens thereof examined by us, that the Notes have been duly authenticated by one of the Trustee’s authorized officers, that the Notes have been delivered against payment as contemplated in the Registration Statement and that the signatures on all documents examined by us are genuine.
We hereby consent to the filing of this opinion as an exhibit to a Current Report on Form 6-K to be incorporated by reference in the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
/s/ Sullivan & Cromwell LLP
Exhibit 5.2
| Osler, Hoskin & Harcourt LLP Box 50, 1 First Canadian Place 416.862.6666 FACSIMILE |
|
| Toronto |
March 8, 2024 | |
| Montréal |
||
| Calgary |
Bank of Montreal 1 First Canadian Place | |
| Ottawa |
18th Floor Toronto, ON M5X 1A1 | |
| Vancouver |
||
| New York |
Dear Sirs/Mesdames: |
Bank of Montreal – US$1,000,000,000 7.700% Fixed Rate Reset Limited Recourse Capital Notes, Series 4 (Non-Viability Contingent Capital (NVCC)) (Subordinated Indebtedness)
We have acted as Canadian counsel to Bank of Montreal (the “Bank”) in connection with the issue and sale today (the “Offering”) by the Bank of US$1,000,000,000 aggregate principal amount of its 7.700% Fixed Rate Reset Limited Recourse Capital Notes, Series 4 (Non-Viability Contingent Capital (NVCC)) (Subordinated Indebtedness) (the “Notes”) pursuant to an underwriting agreement dated February 29, 2024 (the “Underwriting Agreement”) among the Bank and BMO Capital Markets Corp., Goldman Sachs & Co. LLC, Morgan Stanley & Co. LLC, Barclays Capital Inc., BNP Paribas Securities Corp., and Credit Agricole Securities (USA) Inc., as representatives of the several underwriters named therein (collectively, the “Underwriters”). The Notes are issuable under and pursuant to a subordinated debt securities indenture dated as of December 12, 2017 (the “Base Indenture”), between the Bank and Computershare Trust Company, N.A., as successor to Wells Fargo Bank, National Association, as trustee (the “Trustee”), as amended and supplemented by the fifth supplemental indenture dated as of March 8, 2024 (the “Fifth Supplemental Indenture” and together with the Base Indenture, the “Indenture”), between the Bank and the Trustee. We have also acted as Canadian counsel to the Bank in connection with the issuance and sale on March 7, 2024 by the Bank of 1,000,000 Non-Cumulative 5-Year Fixed Rate Reset Class B Preferred Shares, Series 53 (Non-Viability Contingent Capital (NVCC)) of the Bank (the “Preferred Shares”) to Computershare Trust Company of Canada, as trustee (the “Limited Recourse Trustee”) of BMO LRCN Trust (the “Limited Recourse Trust”).
In accordance with the terms of a declaration of trust dated September 4, 2020, as may be supplemented, amended or restated from time to time, in respect of the Limited Recourse Trust made by the Limited Recourse Trustee, the Limited Recourse Trustee will hold the Preferred Shares as registered owner to satisfy the recourse of the holders of the Notes in respect of the Bank’s obligations under the Indenture. Upon the occurrence of a Recourse Event (as defined in the Indenture), the limited recourse trust assets held in the Limited Recourse Trust in respect of the Notes, which will initially consist of the Preferred Shares, will be delivered to the holders of the Notes.
|
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| Page 2 |
The provisions attaching to the Preferred Shares (the “Share Terms”) provide that the Preferred Shares will convert, upon the occurrence of a Trigger Event (as defined in the Share Terms), into common shares in the capital of the Bank (each, a “Common Share”), subject to certain conditions as described in the Share Terms (an “NVCC Automatic Conversion”). If a Trigger Event occurs and the Preferred Shares are then held in the Limited Recourse Trust, then immediately following such NVCC Automatic Conversion, each holder of the Notes will be entitled to receive such holder’s proportionate share of the Preferred Shares then held in the Limited Recourse Trust and subsequently, the Common Shares issued in connection with such Trigger Event (other than any Dividend Common Shares (as defined in the Indenture)) will be delivered to each holder of the Notes, subject to certain conditions as described in the Indenture.
We are solicitors qualified to practice law in the Province of Ontario and we express no opinion as to any laws or any matters governed by any laws other than the laws of the Province of Ontario and the federal laws of Canada applicable therein.
As Canadian counsel to the Bank, we have examined originals or copies, certified or otherwise authenticated to our satisfaction, of the following:
| 1. |
the preliminary prospectus supplement dated February 29, 2024 (the “Preliminary Prospectus Supplement”), the final prospectus supplement dated February 29, 2024 (the “Final Prospectus Supplement”) and the base prospectus dated May 26, 2022 (the “Base Prospectus” and together with the Preliminary Prospectus Supplement and the Final Prospectus Supplement, the “Prospectus”); |
| 2. |
the Underwriting Agreement; and |
| 3. |
the Indenture. |
In connection with the opinions expressed in this letter we have considered such questions of law and examined such public and corporate records, certificates and other documents and conducted such other examinations as we have considered necessary or appropriate for the purposes of the opinions hereafter expressed, including the following documents:
| 1. |
the by-laws of the Bank; |
| 2. |
officers’ certificates of the Bank as to resolutions of the directors of the Bank authorizing the Registration Statement filed with the U.S. Securities and Exchange Commission (the “Commission”) on Form F-3 on April 20, 2022 and Amendment No. 1 thereto dated May 25, 2022 (collectively, the “Registration Statement”), the Prospectus, the creation and issuance of the Notes and the Preferred Shares and other related matters; and |
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|
| Page 3 |
| 3. |
a Certificate of Confirmation dated March 7, 2024 issued by the Office of the Superintendent of Financial Institutions (Canada) in respect of the Bank (the “Certificate of Confirmation”). |
We understand that the Registration Statement and the Prospectus were filed with the Commission in connection with the Notes and the Preferred Shares.
We have assumed the legal capacity of all individuals, the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to authentic original documents of all documents submitted to us as certified, conformed, photostatic, facsimile or electronic copies.
In expressing the opinion in paragraph 1 as to the existence of the Bank, we have relied exclusively on the Certificate of Confirmation, which certificate we assume is accurate as of the date hereof.
The opinion expressed in paragraph 3 is based on the assumption that the Indenture has been duly authorized, executed and delivered by, and is enforceable in accordance with its terms against, the Trustee.
Based upon the foregoing, and subject to the qualifications expressed 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 own, lease and operate its properties, to conduct its business as described in the Prospectus, to create, issue and sell the Notes, to create, issue and deliver the Preferred Shares to the Limited Recourse Trustee, to issue and deliver the Common Shares into which the Preferred Shares may be converted upon an NVCC Automatic Conversion (as defined in the Share Terms), and to execute, deliver and perform its obligations under the Indenture. |
| 2. |
The creation, issuance, sale and delivery of the Notes have been duly authorized by the Bank and the Notes have been, to the extent issuance, execution and delivery are matters governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, duly issued, executed and delivered by the Bank. The creation, issuance, sale and delivery of the Preferred Shares have been duly authorized by the Bank and the Preferred Shares have been validly created and allotted and, payment therefor having been made to the Bank, have been validly issued and are outstanding as fully-paid and non-assessable shares of the Bank. All necessary corporate action has been taken by the Bank to authorize and reserve for issuance the Common Shares into which the Preferred Shares may be converted upon an NVCC Automatic Conversion (as defined in the Share Terms) and such Common Shares, when duly issued in accordance with the Share Terms, will be validly issued, fully-paid and non-assessable shares. The Notes, 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 in accordance with their terms. |
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| Page 4 |
| 3. |
The 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, with respect to the provisions thereof governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, constitutes a legal, valid and binding obligation of the Bank enforceable in accordance with its terms. |
| 4. |
The execution and delivery by the Bank of, and the performance by the Bank of its obligations under, the Notes and the Indenture, the issuance and delivery of the Preferred Shares to the Limited Recourse Trustee, and the issuance and delivery of the Common Shares upon an NVCC Automatic Conversion (as defined in the Share Terms), do not contravene any existing provision of applicable law or result in a breach (whether after notice or lapse of time or both) of any of the terms, conditions or provisions of the Bank Act (Canada) or the by-laws of the Bank. |
The opinions set forth in paragraphs 2 and 3 above as to the enforceability of the Notes and the Indenture, respectively, are subject to the qualifications that:
| (i) |
enforceability may be limited by bankruptcy, insolvency, reorganization, receivership, preference, moratorium, arrangement or winding-up laws or other similar laws affecting the enforcement of creditors’ rights generally; |
| (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; and |
| (iii) |
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 Notes or the Indenture to be unenforceable as an attempt to vary or exclude a limitation period under that Act. |
This opinion is rendered solely in connection with the transactions covered hereby, is limited to the matters stated herein, and no opinions may be implied or inferred beyond matters expressly stated herein.
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| Page 5 |
We hereby consent to the filing of this opinion as an exhibit to a Current Report on Form 6-K to be incorporated by reference in the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the United States Securities Act of 1933.
| Yours truly, |
| /s/ Osler, Hoskin & Harcourt LLP |
Exhibit 8.1
|
TELEPHONE: 1-212-558-4000
FACSIMILE: 1-212-558-3588
WWW.SULLCROM.COM |
125 Broad Street
LOS ANGELES ● PALO ALTO ● WASHINGTON, D.C.
BRUSSELS ● FRANKFURT ● LONDON ● PARIS
BEIJING ● HONG KONG ● TOKYO
MELBOURNE ● SYDNEY |
March 8, 2024
Bank of Montreal,
100 King Street West,
1 First Canadian Place,
Toronto, Ontario,
Canada M5X 1A1.
Ladies and Gentlemen:
We are acting as special United States federal taxation counsel to Bank of Montreal, a Canadian chartered bank (the “Bank”), in connection with the issuance and delivery of the securities identified in Annex A to this letter (the “Notes”) as described in the Prospectus Supplement dated February 29, 2024 (the “Prospectus Supplement”) to the Prospectus dated May 26, 2022 (the “Prospectus”) contained in the Registration Statement on Form F-3, File No. 333-264388 (the “Registration Statement”). We hereby confirm to you that the statements of U.S. tax law set forth under the heading “U.S. Federal Income Tax Considerations” in the Prospectus Supplement are our opinion and constitute a fair and accurate summary of the material tax consequences of owning the Notes, subject to the limitations and exceptions set forth in the Prospectus.
We hereby consent to the filing of this opinion as an exhibit to a Current Report on Form 6-K incorporated by reference in the Registration Statement, and to the reference to our opinion in the Prospectus Supplement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended.
Very truly yours,
/s/ Sullivan & Cromwell LLP
ANNEX A
| Title of Note |
Date of Prospectus Supplement |
Date of Issue of Note | ||
| US$1,000,000,000 aggregate principal amount of 7.700% Fixed Rate Reset Limited Recourse Capital Notes, Series 4 (Non-Viability Contingent Capital (NVCC)) (Subordinated Indebtedness) |
February 29, 2024 | March 8, 2024 | ||
Exhibit 8.2
|
79 Wellington St. W., 30th Floor Box 270, TD
South Tower Toronto, Ontario M5K 1N2 Canada P. 416.865.0040 | F. 416.865.7380 www.torys.com |
March 8, 2024
Bank of Montreal
1 First Canadian Place
100 King Street West
18th Floor
Toronto, ON M5X 1A1
Dear Sirs/Mesdames:
| Re: | Bank of Montreal – US$1,000,000,000 7.700% Fixed Rate Reset Limited Recourse Capital Notes, Series 4 (Non-Viability Contingent Capital (NVCC)) (Subordinated Indebtedness) |
We have acted as Canadian tax counsel to Bank of Montreal (the “Bank”) in connection with the issue and sale by the Bank of (i) US$1,000,000,000 aggregate principal amount of its 7.700% Fixed Rate Reset Limited Recourse Capital Notes, Series 4 (Non-Viability Contingent Capital (NVCC)) (Subordinated Indebtedness) (the “Notes”) pursuant to an underwriting agreement dated February 29, 2024 (the “Underwriting Agreement”) among the Bank and BMO Capital Markets Corp., Goldman Sachs & Co. LLC, Morgan Stanley & Co. LLC, Barclays Capital Inc., BNP Paribas Securities Corp., and Credit Agricole Securities (USA) Inc., as representatives of the several underwriters named therein, and (ii) 1,000,000 Non-Cumulative 5-Year Fixed Rate Reset Class B Preferred Shares, Series 53 (Non-Viability Contingent Capital (NVCC)) of the Bank (the “Preferred Shares” and, collectively with the Notes, the “Securities”) to Computershare Trust Company of Canada, as trustee (the “Limited Recourse Trustee”) of BMO LRCN Trust (the “Limited Recourse Trust”).
The Securities are being offered for sale pursuant to a Registration Statement on Form F-3 (File No. 333-264388) and the Bank’s base shelf prospectus dated May 26, 2022 (the “Base Prospectus”), as supplemented by a preliminary prospectus supplement dated February 29, 2024 relating to the Securities (the “Preliminary Prospectus Supplement”), as further supplemented by a prospectus supplement dated February 29, 2024 relating to the Securities (the “Final Prospectus Supplement” and together with the Base Prospectus and the Preliminary Prospectus Supplement, the “Prospectus”).
The Notes are issuable under and pursuant to a subordinated debt securities indenture dated as of December 12, 2017 (the “Base Indenture”), between the Bank and Computershare Trust Company, N.A., as successor to Wells Fargo Bank, National Association, as trustee (the “Trustee”), as amended and supplemented by the fifth supplemental indenture dated as of March 8, 2024 (the “Fifth Supplemental Indenture” and together with the Base Indenture, the “Indenture”), between the Bank and the Trustee.
The provisions attaching to the Preferred Shares (the “Share Terms”) provide that the Preferred Shares will convert, upon the occurrence of a Trigger Event (as defined in the Share Terms), into common shares in the capital of the Bank (each, a “Common Share”), subject to certain conditions as described in the Share Terms.
Capitalized terms used herein not otherwise defined have the meaning given to them in the Prospectus.
As Canadian tax counsel to the Bank, we have examined copies of:
| 1. | the Preliminary Prospectus Supplement; |
| 2. | the Final Prospectus Supplement; |
| 3. | the Indenture; |
| 4. | the Declaration of Trust; |
| 5. | the administration agreement dated as of September 4, 2020 made between the Limited Recourse Trust and the Bank, in its capacity as Administrative Agent; |
| 6. | a waiver of dividends dated as of March 7, 2024 executed by the Administrative Agent, on behalf of the Limited Recourse Trust, and delivered to the Bank; |
| 7. | a dividend covenant dated as of March 7, 2024 executed by the Bank in favour of the Limited Recourse Trust; and |
| 8. | the Share Terms. |
This letter is limited to the tax matters described herein and does not address any other Canadian federal income tax matters, any other Canadian federal tax matters, any provincial tax matters or any foreign tax matters. Except as noted, this letter does not take into account or anticipate any changes in law, whether by way of legislative, judicial or governmental decision or action, or in the administrative and assessing practices of the Canada Revenue Agency (“CRA”), and there can be no assurance that the Income Tax Act (Canada) or the Income Tax Regulations made thereunder will not be amended, or the CRA administrative and assessing practices changed, in a manner which will affect the considerations that are identified and reviewed in this letter.
Based upon and subject to the foregoing and subject to the exceptions, limitations and qualifications set forth herein, we are of the opinion that, subject to the assumptions and qualifications set out therein, the statements as to matters of the laws of Canada under the heading “Certain Canadian Federal Income Tax Considerations” in the Final Prospectus Supplement are accurate in all material respects.
The opinions in this letter are given solely for the benefit of the addressees in connection with the transactions referred to and may not, in whole or in part, be relied upon by or shown or distributed to any other person.
We hereby consent to the filing of this opinion as an exhibit to a Current Report on Form 6-K to be incorporated by reference in the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the United States Securities Act of 1933.
| Yours truly,
/s/ Torys LLP |
JW / CS
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