Bank Of Montreal 6-K, filed May 26, 2022
Bank Of Montreal (BMO)
About this 6-K
Bank Of Montreal filed this 6-K on May 26, 2022.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
Report of Foreign Private Issuer
Pursuant to Rule 13a-16 or 15d-16
of the Securities Exchange Act of 1934
| For the month of: May, 2022 | Commission File Number: 001-13354 |
BANK OF MONTREAL
(Name of Registrant)
| 100 King Street West | ||
| 1 First Canadian Place | 129 rue Saint-Jacques | |
| Toronto, Ontario | Montreal, Quebec | |
| Canada, M5X 1A1 | 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 ☒
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): ☐
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): ☐
INCORPORATION BY REFERENCE
The information contained in this Form 6-K and any exhibits hereto shall be deemed filed with the Securities and Exchange Commission (“SEC”) solely for purposes of incorporation by reference into and as part of the following registration statement of the registrant on file with and declared effective by the SEC:
| 1. | Registration Statement – Form F-3 – File No. 333-264388 |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| BANK OF MONTREAL | ||||||
| By: | /s/ Stephen Lobo | |||||
| Name: | Stephen Lobo | |||||
| Title: | Authorized Signing Officer | |||||
| Date: May 26, 2022 | ||||||
[Signature Page to Form 6-K]
EXHIBIT INDEX
| Exhibit | Description of Exhibit | |
| 4.7 | Form of Master Note representing certain issuances of the Notes. | |
| 5.3 | Opinion of Osler, Hoskin & Harcourt LLP, Canadian counsel for the Bank, as to certain matters under Canadian and Ontario law. | |
| 5.4 | Opinion of Ashurst LLP, as to the validity of the Notes under New York law. | |
| 5.5 | Opinion of Mayer Brown LLP, as to the validity of the Notes under New York law. | |
| 8.3 | Opinion of Torys LLP, as to Canadian federal tax matters. | |
| 23.6 | Consent of Osler, Hoskin & Harcourt LLP (included in Exhibit 5.3 above). | |
| 23.7 | Consent of Ashurst LLP (included in Exhibit 5.4 above). | |
| 23.8 | Consent of Mayer Brown LLP (included in Exhibit 5.5 above). | |
| 23.9 | Consent of Torys LLP. | |
| 23.10 | Consent of Ashurst LLP, as to U.S. federal tax matters. | |
| 23.11 | Consent of Mayer Brown LLP, as to U.S. federal tax matters. | |
| 99.1 | Third Supplemental Indenture, dated as of May 26, 2022, among Bank of Montreal, The Bank of New York Mellon and Computershare Trust Company, N.A., as successor to Wells Fargo Bank, National Association. | |
Exhibit 4.7
(FACE OF SECURITY)
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO BANK OF MONTREAL, OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS A MASTER NOTE WITHIN THE MEANING SPECIFIED HEREIN AND REPRESENTS AN INVESTMENT SECURITY WITHIN THE MEANING OF ARTICLE EIGHT OF THE NEW YORK UNIFORM COMMERCIAL CODE (“NY UCC”). THIS SECURITY IS GOVERNED AND SUBJECT TO SECTION 8-202 OF THE NY UCC. THE TERMS OF THE SECURITIES OF ANY SERIES REPRESENTED HEREBY ARE INCORPORATED BY REFERENCE TO THE APPLICABLE PRICING SUPPLEMENT. BY ACCEPTANCE OF THIS SECURITY, THE HOLDER IS DEEMED TO HAVE KNOWLEDGE OF SUCH TERMS AND TO HOLD SUCH SECURITIES SUBJECT TO AND IN ACCORDANCE WITH SUCH TERMS.
BANK OF MONTREAL
SENIOR MEDIUM-TERM NOTES, SERIES I
(MASTER NOTE)
This Security will not constitute a deposit that is insured under
the Canada Deposit Insurance Corporation Act or by the
United States Federal Deposit Insurance Corporation
This Security is a Global Security (as defined in Section 101 of the Indenture) and may represent one or more series of the Securities as contemplated therein. Bank of Montreal is a Canadian chartered bank (hereinafter called the “Bank,” which term includes any successor Person under the Indenture). The terms for each series of Securities are hereby reflected in this Security, the Bank’s prospectus dated May 26, 2022, as it may be supplemented by the prospectus supplement specified from time to time in the Distribution Agreement, dated May 26, 2022, with respect to the Senior Medium-Term Notes, Series I, as it may be supplemented or amended from time to time (the “Prospectus”), relating to the Securities evidenced hereby, and in the pricing supplement(s) identified and noted by the Trustee on Annex A attached hereto (each such pricing supplement, together with the Prospectus and any product supplement designated therein (if applicable), a “Pricing Supplement”), which Pricing Supplement(s) are on file with the Trustee. With respect to each issuance of Securities, the description and terms of such Securities contained in the applicable Pricing Supplement are hereby incorporated by reference herein and are deemed to be a part of this Security as of the Original Issue Date specified on Annex A. Each reference to “this Security” or a “Security of a series” includes and shall be deemed to refer to each Security of a series evidenced hereby that is referenced in a Pricing Supplement. For the avoidance of doubt, a Pricing Supplement may bear a different name given to a similar document filed by the Bank under the Securities Act of 1933 pursuant to Rule 424(b) thereof.
Every term of this Security is subject to modification, amendment, supplementation or elimination through the incorporated terms of the applicable Pricing Supplement, whether or not the phrase “unless otherwise provided in the Pricing Supplement” or language of similar meaning precedes the term of this Security so modified, amended or eliminated. Without limiting the foregoing, in the case of each Security of any series evidenced hereby, the Holder of this Security is directed to the applicable Pricing Supplement for a description of certain terms of such series, including the manner of determining the amount of cash payable or (if applicable) securities or other assets deliverable at maturity or at any other time and the method of determining, and the dates (if any) for the payment and resetting of, interest or other interim payments, if any, on such series of the Securities (including, without limitation, information relating to any applicable interest rate, relevant securities, currency, commodities, or other index or indices, any single security, currency or commodity or basket thereof of any combination of the foregoing that may be relevant to such determination), the dates, if any, on which the principal amount of and interest, if any, on such series of the Securities is determined and payable, the amount payable upon any acceleration of such series of the Securities and the principal amount of such series of the Securities and the principal
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amount of such series of the Securities deemed to be Outstanding for purposes of determining whether Holders of the requisite principal amount of Securities have made or given any request, demand, authorization, direction, notice, consent, waiver or other action under the Indenture, including any limitation on the ability of the Holder to seek to collect amounts due hereunder.
Other terms used in this Security that are not defined herein but that are defined in the Indenture referred to in Section 1 on the reverse of this Security are used herein as defined therein.
This Security is a “Master Note”, which term means a Security that provides for incorporation thereof the terms of each Series of Securities by reference to the applicable Pricing Supplements, substantially as contemplated herein.
The Bank for value received, hereby promises to pay to CEDE & CO., or registered assigns, on each principal payment date, including each amortization date, redemption date, repayment date or maturity date, as applicable and specified in the applicable Pricing Supplement and on each interest payment date and at maturity, the interest then due and payable, if any, as so specified in the applicable Pricing Supplement. Unless otherwise set forth in the applicable Pricing Supplement, any premium and any such installment of interest that is overdue at any time shall also bear interest at the rate per annum at which the principal then bears interest (to the extent that the payment of such interest shall be legally enforceable), from the date any such overdue amount first becomes due until it is paid or made available for payment. Notwithstanding the foregoing, interest on any principal, premium or installment of interest that is overdue shall be payable on demand.
Unless otherwise set forth in the applicable Pricing Supplement, any interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the 3rd business day next preceding such Interest Payment Date (a “Regular Record Date”). Any interest not punctually so paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and such Defaulted Interest either may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to the Holder of this Security not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of the applicable series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture.
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Manner of Payment – U.S. Dollars
Payment of any amount payable on any Security of any series represented hereby in U.S. dollars will be made at the office or agency of the Bank maintained for that purpose in The City of New York (or at any other office or agency maintained by the Bank for that purpose) or by wire transfer as described in the next paragraph, against surrender of this Security in the case of any payment due at Maturity (other than any payment of interest that first becomes due on an Interest Payment Date); provided, however, that subject to the next paragraph, payment of interest will be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register.
Payment of any amount payable on any Security of any series represented hereby in U.S. dollars will be made by wire transfer of immediately available funds to an account maintained by the payee with a bank located in the Borough of Manhattan, The City of New York, if (i) the principal of such Security is at least $1,000,000 and (ii) the Holder entitled to receive such payment transmits a written request for such payment to be made in such manner to the Trustee at its Corporate Trust Office, Attention: Corporate Trust Administration, and it is received on or before the fifth Business Day before the day on which such payment is to be made; provided that, in the case of any such payment due at the Maturity of the principal hereof, other than any payment of interest that first becomes due on an Interest Payment Date, subject to the section below entitled “Manner of Payment-Global Securities,” this Security must be surrendered at the office or agency of the Trustee maintained for that purpose in The City of New York (or at any other office or agency maintained by the Trustee for that purpose) in time for the Paying Agent to make such payment in such funds in accordance with its normal procedures. Any such request made with respect to any payment on such Security of any series payable to a particular Holder will remain in effect for all later payments on such Security payable to such Holder, unless such request is revoked on or before the fifth Business Day before a payment is to be made, in which case such revocation shall be effective for such payment and all later payments. In the case of any payment of interest payable on an Interest Payment Date, such written request must be made by the Person who is the registered Holder of this Security on the relevant Regular Record Date. The Bank will pay any administrative costs imposed by banks in connection with making payments by wire transfer with respect to this Security, but any present or future tax, duty, assessment or other governmental charge imposed upon any payment will be borne by the Holder of this Security and may be deducted from the payment by the Bank or the Paying Agent.
Manner of Payment – Global Securities
Notwithstanding any provision of this Security or the Indenture, the Bank may make any and all payments of principal and any premium and interest on this Security pursuant to the applicable procedures of the Depositary for this Security as permitted in Section 301 of the Indenture. Notwithstanding the foregoing, whenever the provisions hereof require that this Security be surrendered against payment of the principal and any premium and interest, such surrender may be effected by means of an appropriate adjustment to Annex A hereto to reflect the discharge of such payment, such
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an adjustment shall be made by the Trustee in a manner not inconsistent with the procedures of the Depositary, and in such circumstances this Security need not be surrendered.
Payments Due on a Business Day
Notwithstanding any provision of this Security or the Indenture, where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then payment of interest or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date, Redemption Date, Repayment Date, or at the Stated Maturity; provided, however, that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date, Repayment Date or Stated Maturity, as the case may be, to the date of such payment.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual, facsimile or electronic signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Bank has caused this instrument to be duly executed.
| BANK OF MONTREAL | ||||
| By |
| |||
| Name: | Stephen Lobo | |||
| Title: | Treasurer | |||
This is one of the Securities of the series designated herein and referred to in the Indenture.
Dated: May 26, 2022
| THE BANK OF NEW YORK MELLON, as Trustee | ||
| By |
| |
| Authorized Signatory | ||
[Signature page to Master Note]
(Reverse of Security)
1. Securities and Indenture
This Security is one of a duly authorized issue of securities of the Bank (herein called the “Securities”) issued and to be issued in one or more series under a Senior Indenture, dated as of January 25, 2010, between the Bank and Computershare Trust Company, N.A., as successor to Wells Fargo Bank, National Association, as trustee, as supplemented by the first Supplemental Indenture dated as of September 23, 2018, between the Bank and Computershare Trust Company, N.A., as successor to Wells Fargo Bank, National Association, as trustee, as supplemented by the third Supplemental Indenture dated as of May 26, 2022 (collectively, herein called the “Indenture”), among the Bank, The Bank of New York Mellon (herein called the “Trustee,” which term includes any successor trustee under the Indenture) and Computershare Trust Company, N.A., as successor to Wells Fargo Bank, National Association, and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Bank, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. To the extent lawful, in the event of any conflict between the Indenture or this Security, and any Pricing Supplement, the Pricing Supplement shall prevail.
2. Denominations
The Securities of any series are issuable only in registered form without coupons in “Authorized Denominations,” which term shall have the following meaning. For each Security of any series having a principal amount payable in U.S. dollars, unless otherwise specified on the face of this Security, the Authorized Denominations shall be $1,000 and multiples thereof.
3. Redemption at the Bank’s Option
Unless otherwise set forth in the applicable Pricing Supplement, a Security represented hereby shall not be redeemable at the option of the Bank before the Maturity Date. In the event the Bank elects to redeem the Notes, notice will be given to registered holders in the manner specified in the applicable Pricing Supplement.
In the event of redemption of this Security in part only, appropriate annotation of such partial redemption shall be made on Annex A.
Unless otherwise set forth in the applicable Pricing Supplement, a sinking fund provision will not be applicable.
4. Transfer and Exchange
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of a Security of any Series is registrable in the Security Register, upon surrender of a Security for registration of transfer at the office or agency of the Bank in any place where the principal of and any premium and interest on any Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Bank and the Security Registrar duly executed by, the Holder hereof or
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his or her attorney duly authorized in writing, and thereupon one or more new Securities of the same series and of like tenor, of Authorized Denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein set forth, Securities of any Series are exchangeable for a like aggregate principal amount of Securities of the same Series and of like tenor of a different Authorized Denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Bank may require payment of a sum sufficient to cover any tax, duty, assessment or other governmental charge payable in connection therewith.
Prior to due presentment of any Security for registration of transfer, the Bank, the Trustee and any agent of the Bank or the Trustee may treat the Person in whose name a Security is registered as the owner hereof for all purposes, whether or not the Security be overdue, and neither the Bank nor the Trustee nor any such agent shall be affected by notice to the contrary.
This Security shall be subject to the provisions of the Indenture relating to Global Securities, including the limitations in Section 305 thereof on transfers and exchanges of Global Securities. Any such exchange shall be recorded by the Trustee on Annex B hereto.
This Security is a Master Note and may be exchanged at any time, solely upon the request of the Bank to the Trustee, for one or more Global Securities in the same aggregate principal amount, each of which may or may not be a Master Note, as requested by the Bank. Any such exchange shall be recorded by the Trustee on Annex B hereto. Each such replacement Global Security that is a Master Note shall reflect such series of Securities that the Bank shall request. Each such replacement Global Security that is not a Master Note shall represent one (and only one) Security as requested by the Bank, and such Global Security shall be appropriately modified so as to reflect the terms of such Security.
5. Defeasance
The Indenture contains provisions for defeasance at any time of the entire indebtedness of a Security or of any series of Securities or certain restrictive covenants and Events of Default with respect to a Security or a series of Securities, in each case upon compliance with certain conditions set forth in the Indenture. Such provisions are applicable to a particular Security or series of Securities only to the extent specified in the applicable Pricing Supplement.
6. Default
If an Event of Default with respect to a Security of any series evidenced hereby shall occur and be continuing, the principal of such Securities plus any accrued and unpaid interest may be declared due and payable in the manner and with the effect provided in the Indenture. Upon payment (i) of the amount of principal and any accrued and unpaid interest so declared due and payable and (ii) of interest on any overdue
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principal and overdue interest (in each case to the extent that payment of such interest shall be legally enforceable), all of the Bank’s obligations in respect of the payment of the principal of and any interest on such Securities shall terminate.
7. Remedies
If an Event of Default with respect to Securities of any series evidenced hereby shall occur and be continuing, the principal of such Securities of a series may be declared due and payable in the manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities, the Holders of not less than 25% in principal amount of the Securities of such applicable series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of such series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 90 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by a Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Bank, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
8. Disclosure under the Interest Act (Canada)
For disclosure purposes under the Interest Act (Canada), whenever in the Securities of any series or the Indenture interest at a specified rate is to be calculated on the basis of a period less than a calendar year, the yearly rate of interest to which such rate is equivalent is such rate multiplied by the actual number of days in the relevant calendar year and divided by the number of days in such period.
9. Modification and Waiver
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Bank and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Bank and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Bank with certain provisions of the Indenture and certain past defaults under the Indenture and their
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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.
10. Bail-In
The applicable Pricing Supplement will disclose whether a Security is subject to the Bail-in Regime. If a Security is subject to the Bail-in Regime, by its acquisition of an interest in this Security, each Holder and Beneficial Owner of such Security shall be deemed to (i) acknowledge and agree that the provisions set forth in Article Sixteen of the Indenture are binding on such Holder or Beneficial Owner and (ii) have represented and warranted that the Bank has not directly or indirectly provided financing to that Holder or Beneficial Owner of such Security for the express purpose of investing in such Security, in each case despite any provisions in the Indenture or this Security, any other law that governs such Security and any other agreement, arrangement or understanding between such Holder or Beneficial Owner and the Bank with respect to such Security. If a Security is subject to the Bail-in Regime, no Holder or Beneficial Owner of such Security may exercise, or direct the exercise of, claim or plead any right of set-off, netting, compensation or retention in respect of any amount owed to it by the Bank arising under, or in connection with, such Security, and each Holder or Beneficial Owner of such Security, by its acquisition of an interest in such Security, is deemed to irrevocably and unconditionally waive all such rights of set-off, netting, compensation or retention. Notwithstanding the foregoing, if any amounts due and payable to any Holder or Beneficial Owner of such Security by the Bank in respect of, or arising under, such Security are purportedly discharged by set-off, netting, compensation or retention, without limitation to any other rights and remedies of the Bank under applicable law, such Holder or Beneficial Owner shall hold in trust for the Bank an amount equal to the amount of such discharge and, accordingly, any such discharge shall be deemed not to have taken place and such set-off, netting, compensation or retention shall be ineffective. Each Holder or Beneficial Owner of such Security that acquires an interest in such Security in the secondary market and any successors, assigns, heirs, executors, administrators, trustees in bankruptcy and legal representatives of any Holder or Beneficial Owner shall be deemed to acknowledge, accept, agree to be bound by and consent to the same provisions specified herein to the same extent as the Holders or Beneficial Owners that acquire such Securities upon their initial issuance, including, without limitation, with respect to the acknowledgement and agreement to be bound by and consent to the terms of such Securities related to the Bail-in Regime.
11. Definitions
All terms used in this Security that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
12. Governing Law
This Security and the Indenture shall be governed by and construed in accordance with the laws of the State of New York.
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ANNEX A
| Pricing Supplement (Name and/or Accession Number) |
CUSIP Number and Title of Security |
Initial Principal Amount of Security |
Original Issue Date |
Decrease in Principal Amount |
Increase in Principal Amount |
Effective Date of Increase or Decrease |
Trustee Notation |
|||||||||||||||||||||
A-1
ANNEX A
| Pricing Supplement (Name and/or Accession Number) |
CUSIP Number and Title of Security |
Initial Principal Amount of Security |
Original Issue Date |
Decrease in Principal Amount |
Increase in Principal Amount |
Effective Date of Increase or Decrease |
Trustee Notation |
|||||||||||||||||||||
A-2
ANNEX B
The following exchanges of a part of this Global Security for physical certificates or part of another Global Security have been made:
| Date of Exchange | Amount of Decrease in Principal Amount of this Global Security |
Amount of Increase in Principal Amount of this Global Security |
Principal Amount of this Global Security following such Decrease (or Increase) |
Signature of Authorized Signatory of Trustee |
||||||||||||
B-1
ANNEX C
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Security, shall be construed as though they were written out in full according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with the right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT - Custodian
(Cust) (Minor)
under Uniform Gifts to Minors Act
(State)
Additional abbreviations may also be used
though not in the above list.
C-1
ANNEX C
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
/ /
(Please Print or Typewrite Name and Address
Including Postal Zip Code of Assignee)
the attached Security and all rights thereunder, and hereby irrevocably constitutes and appoints
to transfer said Security on the books of the Bank, with full power of substitution in the premises.
Dated:
| Signature Guaranteed | ||
|
|
||
| NOTICE: Signature must be guaranteed. | NOTICE: The signature to this assignment must correspond with the name of the Holder as written upon the face of the attached Security in every particular, without alteration or enlargement or any change whatever. | |
C-2
Exhibit 5.3
| Osler, Hoskin & Harcourt LLP Box 50, 1 First Canadian Place Toronto, Ontario, Canada M5X 1B8 416.362.2111 MAIN 416.862.6666 FACSIMILE |
|
| Toronto | May 26, 2022 | |
| Montréal | ||
| Calgary | Bank of Montreal | |
| 100 King Street West | ||
| Ottawa | 1 First Canadian Place | |
| Toronto, Ontario | ||
| Vancouver | Canada, M5X 1A1 | |
| New York | Dear Sirs/Mesdames: | |
Re: Bank of Montreal – Senior Medium-Term Notes, Series D, E, F, G & I
We have acted as Canadian counsel to Bank of Montreal (the “Bank”) in connection with its issuance from time to time of certain senior debt securities that will be issued under its Medium-Term Note Program, Series D, E, F, G & I (the “Senior Debt Securities”). The Senior Debt Securities will be issued from time to time by the Bank pursuant to the Senior Indenture dated as of January 25, 2010 between the Bank and Computershare Trust Company, N.A., as successor to Wells Fargo Bank, National Association, as trustee (the “Original Trustee”), as supplemented by the First Supplemental Indenture thereto dated as of September 23, 2018 between the Bank and the Original Trustee, and, solely with respect to the Bank’s Senior Medium-Term Notes, Series G, the Second Supplemental Indenture thereto dated as of May 27, 2021 among the Bank, The Bank of New York Mellon (the “Series Trustee”), as trustee with respect to the Senior Medium-Term Notes, Series G, and the Original Trustee, and, solely with respect to the Bank’s Senior Medium-Term Notes, Series I, the Third Supplemental Indenture thereto dated as of May 26, 2022 among the Bank, the Series Trustee, as trustee with respect to the Senior Medium-Term Notes, Series I, and the Original Trustee, as the same may be amended and supplemented from time to time (collectively, the “Senior Debt Indenture”).
We have examined certain portions of the following:
| (i) | the Senior Debt Indenture; |
| (ii) | the registration statement of the Bank on Form F-3, file number 333-264388, as amended (the “Registration Statement”); |
| (iii) | the secretary’s certificate dated May 26, 2022 as to, among other things: |
| (a) | the by-laws of the Bank (the “By-Laws”); |
| (b) | the resolutions of the board of directors of the Bank passed on May 25, 2022, March 1, 2022, January 14, 2022, February 25, 2020, August 28, 2018 |
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| and April 3, 2017 relating to the Senior Debt Securities (the “Board Resolutions”); and |
| (c) | certain other matters of fact; and |
| (iv) | the forms of master notes (the “Master Notes”) and global notes (the “Global Notes”, and together with the Master Notes, collectively, the “Note Certificates” and each, a “Note Certificate”) that will represent the Senior Debt Securities. |
For the purposes of our opinions below, we have examined such statutes, public and corporate records, certificates and other documents, and considered such questions of law, as we have considered relevant and necessary as a basis for the opinions expressed herein. In such examination, we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals, and the conformity to original documents of all documents submitted to us as certified or photostatic or electronic copies or facsimiles. For the purposes of the opinions expressed herein, we have, without independent investigation or verification, assumed that the Senior Debt Indenture has been duly authorized, executed and delivered by each party thereto including the Bank and constitutes a legal, valid and binding obligation of each party thereto including the Bank (with respect to the Bank our assumptions are limited to those provisions thereof that are not governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein).
Insofar as the opinions given herein relate to any future issue of Senior Debt Securities, such opinions must be read subject to our assumptions herein and our further assumptions that as at the date of any such issue:
| (i) | the Senior Debt Indenture provided to us for review is a true and complete copy of the Senior Debt Indenture; |
| (ii) | each Note Certificate is consistent with the form of Note Certificate that we have been provided with for review; |
| (iii) | we have been provided with for our review true and complete copies of all officer’s certificates, authorizations and bank orders relating to the Senior Debt Securities (“Authorizing Documents”), each distribution, agency or dealer agreement or accession thereto relating to the issuance of the Senior Debt Securities and all other agreements or documents of similar effect (all of the foregoing in this paragraph (iii), together with the Senior Debt Indenture and each Note Certificate, collectively, the “Transaction Documents”); |
Page 3
| (iv) | each of the Transaction Documents has been authorized by all necessary corporate action by the Bank, has been duly executed and delivered by the Bank by an authorized officer or authorized officers of the Bank and continues to be in full force and effect, unamended; |
| (v) | the Senior Debt Securities, each Note Certificate and all Authorizing Documents are being issued in accordance with the terms and conditions of the Senior Debt Indenture and in conformity with the Senior Debt Indenture and there are no other agreements or documents required for the valid issuance of the Senior Debt Securities other than the Transaction Documents; |
| (vi) | each of the Transaction Documents has been duly authorized, executed and delivered or, in the case of the Note Certificates, authorized, authenticated and delivered in accordance with the Senior Debt Indenture, by each party thereto, and constitutes a legal, valid and binding obligation of, each party thereto including the Bank (with respect to the Bank our assumptions are limited to those provisions thereof that are not governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein); |
| (vii) | there are no material variations to the terms and conditions of the Senior Debt Securities from those set forth in the Senior Debt Indenture and there have been no material variations to the Transaction Documents from the Transaction Documents that we have been provided with for review; |
| (viii) | the terms of such issue shall have been duly approved by a person or persons so authorized pursuant to the Board Resolutions or any other applicable board resolutions of the Bank relating to such issuance; |
| (ix) | the issuance of the Senior Debt Securities has been authorized by all necessary corporate action by the Bank; |
| (x) | the aggregate principal amount of all senior debt securities, subordinated debt securities, common shares, Class A preferred shares and Class B preferred shares of the Bank shall not exceed U.S.$42,000,000,000 (or the equivalent thereof in other currencies) or any other limitations set forth in any board resolution of the Bank, as determined pursuant to the Board Resolutions after giving effect to any such issue; |
| (xi) | the aggregate outstanding amount of all principal at risk notes and principal protected notes of the Bank shall not exceed U.S.$12,000,000,000 (or the equivalent thereof in other currencies) or any other limitations set forth in any board resolution of the Bank, as determined pursuant to the Board Resolutions after giving effect to any such issue; |
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| (xii) | the By-Laws and the Board Resolutions remain in full force and effect, unamended; |
| (xiii) | the issue shall comply with the Board Resolutions and any other board resolutions of the Bank applicable to the Senior Debt Securities that are then in force and effect, and any internal approvals in connection with such issuance shall have been duly and validly obtained by those person or persons so authorized pursuant to the Board Resolutions and any other board resolutions of the Bank applicable to the Senior Debt Securities that are then in force and effect; |
| (xiv) | the Bank has duly performed and will duly perform its covenants and agreements in the Senior Debt Indenture and the Note Certificates; |
| (xv) | the status of each of the Senior Debt Indenture and the Note Certificates as a valid and binding obligation is not affected by any breach or default under any agreement or instrument, any failure to obtain any required approval from or make any filings with any governmental authority or third party or any violation of a rule, regulation or law; |
| (xvi) | the provisions for the payment of interest and other amounts under the Senior Debt Securities shall not provide for the receipt of “interest” by the recipient at a “criminal rate” within the meaning of section 347 of the Criminal Code (Canada); |
| (xvii) | any terms specified, or any modifications or additions made to the Prospectus, in the applicable pricing supplement, together with any other applicable documents setting out the terms of the Senior Debt Securities, shall not in any way affect the legality, validity, binding effect or enforceability of the Senior Debt Securities; and |
| (xviii) | the laws, jurisprudence and published administrative practices in effect on the date hereof as may pertain to the opinions expressed herein shall not have changed as at the date of any such issue of Senior Debt Securities, including the laws pertaining to the Bank’s authority to issue Senior Debt Securities, so as to render inaccurate such opinions. |
In giving this opinion, we express no opinion as to any laws other than, at the date hereof, the laws of the Province of Ontario and the federal laws of Canada applicable therein.
With respect to the continuing existence of the Bank as a Schedule I bank under the Bank Act (Canada) referred to in paragraph 1 below, we have relied, without independent investigation or verification, exclusively upon a Certificate of Confirmation dated May 25,
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2022 issued by the Office of the Superintendent of Financial Institutions, which certificate we assume is accurate as of the date hereof and on the date of any future issue of Senior Debt Securities.
Further, we draw to your attention that some Senior Debt Securities specified in the applicable prospectus supplements or pricing supplements, as applicable, as being “bail-inable debt securities” may be subject to conversion in whole or part into common shares of the Bank or its affiliates under subsection 39.2(2.3) of the Canada Deposit Insurance Corporation Act (Canada).
Based and relying upon the foregoing and subject to the qualifications set forth herein, we are of the opinion that:
| 1. | The Bank validly exists as a Schedule I bank under the Bank Act (Canada) and has the corporate power to create, issue and sell the Senior Debt Securities. |
| 2. | When the creation of the Senior Debt Securities has been duly authorized by the Bank and when the terms of particular Senior Debt Securities and the issuance and sale of such Senior Debt Securities have been duly authorized by all necessary corporate action in conformity with the Senior Debt Indenture, and when such Senior Debt Securities have been duly executed, authenticated and issued in accordance with the Senior Debt Indenture and delivered against payment therefor as contemplated in the Registration Statement, any applicable prospectus supplement, any applicable pricing supplement and any applicable agreement of purchase and sale, such Senior Debt Securities will be validly issued. |
| 3. | The Senior Debt Indenture has been duly authorized, executed and, to the extent delivery is a matter governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, delivered by the Bank, and does, with respect to the provisions thereof governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, constitute a legal, valid and binding obligation of the Bank enforceable against it in accordance with its terms. |
The opinions expressed herein are provided solely for the benefit of the addressees in connection with the Senior Debt Securities to be issued under the Registration Statement and are not to be transmitted to any other person, nor are they to be relied upon by any other person or for any other purpose or referred to in any public document or filed with any government agency or other person without our prior express consent.
The opinion set forth in paragraph 3 above as to the enforceability of the Senior Debt Indenture is subject to the following qualifications:
Page 6
| (i) | enforceability may be limited by the Canada Deposit Insurance Corporation Act (Canada), the Winding-up and Restructuring Act (Canada) and bankruptcy, insolvency, reorganization, receivership, 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; |
| (iii) | pursuant to the Currency Act (Canada), a judgment by a Canadian court must be awarded in Canadian currency and such judgment may be based on a rate of exchange in existence on a day other than the day of payment; and |
| (iv) | enforceability will be subject to the limitations contained in the Limitations Act, 2002 (Ontario), and we express no opinion as to whether a court may find any provision of the Senior Debt Indenture to be unenforceable as an attempt to vary or exclude a limitation period under that Act. |
If a pricing supplement relating to the offer and sale of particular notes (the “Notes”) representing the Senior Debt Securities is prepared and filed by the Bank with the U.S. Securities and Exchange Commission on a date after the date hereof and such pricing supplement contains a reference to our firm and our opinion substantially in the form set forth below, the consent set forth below shall apply to the reference to us and our opinion in substantially the following form:
In the opinion of Osler, Hoskin & Harcourt LLP, the issue and sale of the Notes has been duly authorized by all necessary corporate action of the Bank in conformity with the Senior Indenture, and when [this pricing supplement has been attached to, and duly notated on, the master note that represents the Notes] [the Notes have been duly completed in accordance with the senior indenture] [the Notes will have been validly executed, authenticated, issued and delivered], to the extent that validity of the Notes is a matter governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein and will be valid obligations of the Bank, subject to the following limitations (i) the enforceability of the senior indenture may be limited by the Canada Deposit Insurance Corporation Act (Canada), the Winding-up and Restructuring Act (Canada) and bankruptcy, insolvency, reorganization, receivership, moratorium, arrangement or winding-up laws or other similar laws affecting the enforcement of creditors’ rights generally; (ii) the enforceability of the senior indenture may be limited by equitable principles, including the principle that equitable remedies such as specific performance and injunction may only be granted in the discretion of a court of competent jurisdiction; (iii) pursuant to the
Page 7
Currency Act (Canada) a judgment by a Canadian court must be awarded in Canadian currency and that such judgment may be based on a rate of exchange in existence on a day other than the day of payment; and (iv) the enforceability of the senior indenture will be subject to the limitations contained in the Limitations Act, 2002 (Ontario), and such counsel expresses no opinion as to whether a court may find any provision of the senior indenture to be unenforceable as an attempt to vary or exclude a limitation period under that Act. This opinion is given as of the date hereof and is limited to the laws of the Provinces of Ontario and the federal laws of Canada applicable therein. In addition, this opinion is subject to certain assumptions about (i) the Trustees’ authorization, execution and delivery of the senior indenture, (ii) the genuineness of signatures and (iii) certain other matters, all as stated in the letter of such counsel dated May 26, 2022, which has been filed as Exhibit 5.3 to Bank of Montreal’s Form 6-K filed with the SEC and dated May 26, 2022.
Each of the opinions set forth herein or referenced in any pricing supplement relating to the Notes may be relied upon by each of Ashurst LLP and Mayer Brown LLP for the purposes of their respective opinions with respect to the matters contemplated hereby.
We hereby consent to the filing of this opinion as an exhibit to the Bank’s Report of Foreign Private Issuer on Form 6-K. In giving such consent, we do not thereby admit that we come within the category of persons whose consent is required by the United States Securities Act of 1933, as amended, or the rules and regulations promulgated thereunder.
| Yours very truly, |
| /s/ Osler, Hoskin & Harcourt LLP |
Exhibit 5.4
| May 26, 2022 | Ashurst LLP 55 Hudson Yards 18th Floor New York, NY 10001 Tel +1 212 205 7000 Fax +1 212 205 7020
www.ashurst.com | |
| Bank of Montreal 100 King Street West 1 First Canadian Place Toronto, Ontario Canada, M5X 1A1
|
| |
Bank of Montreal - Medium-Term Notes
Dear Ladies and Gentlemen:
We are acting as special US counsel to Bank of Montreal, a Canadian chartered bank (the “Bank”), in connection its issuance from time to time of certain senior debt securities that will be issued under its Medium-Term Note Program, Series D, E, F, G & I (the “Notes”). The offerings of the Notes have been registered with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), under a registration statement on Form F-3, file number 333-264388 (the “Registration Statement”).
The Notes will be issued pursuant to the Senior Indenture, dated as of January 25, 2010, as supplemented by the First Supplemental Indenture dated as of September 23, 2018, between the Bank and Wells Fargo Bank, National Association (the “Original Trustee”), and the Second and Third Supplemental Indenture dated as of May 27, 2021 and May 26, 2022, respectively, between the Bank, the Original Trustee and The Bank of New York Mellon (collectively, the “Indenture”).
For purposes of this opinion, we have reviewed originals or copies of the following documents:
| (1) | the Registration Statement; |
| (2) | the Indenture; |
| (3) | the forms of master note (the “Master Note”) and global notes (the “Global Notes,” and together with the Master Note, the “Note Certificates”) that will represent the Notes. |
We have also reviewed such other documents and made such other investigation as we have deemed appropriate for purposes of the opinion below.
In our review, we have, with your consent, assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the accuracy of translations of documents that are not in the English language and the conformity to originals of all documents submitted to us as copies.
Based on the foregoing, and subject to the qualifications set forth herein, we are of the opinion that when the terms of the Notes to be issued under the Indenture and their issuance and sale have been
Ashurst LLP is a limited liability partnership registered in England and Wales under number OC330252 and is part of the Ashurst Group. It is a law firm authorised and regulated by the Solicitors Regulation Authority of England and Wales under number 468653. A list of members of Ashurst LLP and their professional qualifications is open to inspection at its registered office London Fruit & Wool Exchange, 1 Duval Square, London E1 6PW. The term “partner” in relation to Ashurst LLP is used to refer to a member of Ashurst LLP or to an employee or to a consultant with equivalent standing and qualifications.
| Bank of Montreal |
May 26, 2022 | Page 2 |
duly established in conformity with the Indenture so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Bank, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Bank, and when the Notes have been duly completed in accordance with the Indenture, or have been executed, authenticated, issued and delivered, as applicable, and have been issued and sold as contemplated by the Registration Statement, and if all the foregoing actions have been duly authorized by the Bank, the Notes will be valid, binding and enforceable obligations of the Bank, entitled to the benefits of the Indenture.
In rendering the foregoing opinion, we are not passing upon, and assume no responsibility for, any disclosure in the Registration Statement, any other registration statement or any related prospectus or other offering materials relating to the Bank or the Notes or their offering and sale.
If a pricing supplement relating to the offer and sale of any particular Note is prepared and filed by the Bank with the Commission on a future date and the pricing supplement contains a reference to this firm and our opinion substantially in the form set forth below, the consent set forth below in this opinion shall apply to the reference to us and our opinion substantially in the form set forth below:
In the opinion of Ashurst LLP, when [the pricing supplement has been attached to, and duly notated on, the master note that represents the Notes] [the Notes have been duly completed in accordance with the Indenture] [the Notes will be executed, authenticated, issued and delivered], and the Notes have been issued and sold as contemplated by the prospectus supplement and the prospectus, the Notes will be valid, binding and enforceable obligations of the Bank, entitled to the benefits of the Indenture, subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and subject to general principles of equity, public policy considerations and the discretion of the court before which any suit or proceeding may be brought. This opinion is given as of the date hereof and is limited to the laws of the State of New York. This opinion is subject to customary assumptions about the Trustee’s authorization, execution and delivery of the Indenture and the genuineness of signatures and to such counsel’s reliance on the Bank and other sources as to certain factual matters, all as stated in the legal opinion dated May 26, 2022, which has been filed as Exhibit 5.4 to the Bank’s Form 6-K dated May 26, 2022.
The foregoing opinion is subject to the following additional qualifications:
| (A) | The validity or enforceability of any agreement is subject to the effect of applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and subject to general principles of equity, public policy considerations and the discretion of the court before which any suit or proceeding may be brought (regardless of whether enforcement is considered in a proceeding in equity or law). |
| (B) | We express no opinion as to the enforceability of (i) any waiver of trial by jury; (ii) any indemnity against any loss in converting into a specified currency the proceeds or amount of a court judgement in another currency; or (iii) any provision specifying that any provision of the Indenture or the applicable Note Certificate may only be waived in writing. |
| (C) | We express no opinion as to provisions in the Indenture and the Note Certificates which purport to constitute waivers of objections to venue, or claims that a particular jurisdiction is an inconvenient forum. |
For purposes of expressing the foregoing opinion, we have, with your consent, assumed that: (1) the Bank is duly formed and validly existing under the laws of its jurisdiction of formation; (2) the Bank has
| Bank of Montreal |
May 26, 2022 | Page 3 |
the corporate and other power to execute, deliver and perform the Indenture and the Note Certificates and has taken all corporate and other action necessary to authorize the execution, delivery and performance of the Indenture and the Note Certificates; (3) each of the parties to the Indenture and the Note Certificates has duly authorized, executed and delivered such documents under all applicable laws (other than, with respect to the Bank, New York State law) and each of the Indenture and the Note Certificates is a legal, valid and binding obligation of each party thereto (other than, with respect to the Bank, to the extent we have opined on such matters in our opinion set forth above, enforceable against each party in accordance with its terms; (4) the execution and delivery by the Bank of the Indenture and the Note Certificates does not, and the performance by the Bank of its obligations thereunder will not, violate its charter or by-laws or similar corporate documents; (5) the Bank has duly performed and will duly perform its covenants and agreements in the Indenture and the Note Certificates; and (6) the status of each of the Indenture and the Note Certificates as a valid and binding obligation is not affected by any breach or default under any agreement or instrument, any failure to obtain any required approval from or make any filings with any governmental authority or third party or any violation of rule, regulation or law (other than, with respect to the Bank, New York state law, rules and regulations that in our experience would be generally applicable to transactions of the type contemplated by the Indenture and the Note Certificates, provided we express no opinion on any law rule or regulation that is applicable to the Bank or the Indenture or the Note Certificates solely because such law, rule or regulation is part of a regulatory regime applicable to any party to the Indenture or the Note Certificates or any of its affiliates due to the specific assets or business of such party or such affiliate).
The opinion expressed herein is limited to New York State law and we express no opinion as to the effect of the law of any other jurisdiction. We express no opinion as to the validity, binding effect or enforceability of Section 301(b) or Section 1601(a) of the Indenture (and the corresponding provisions of the Notes issued thereunder), each of which is governed by the laws of the Province of Ontario and the laws of Canada applicable therein. Various matters concerning the laws of Canada are addressed in the opinion of Canadian counsel, which is being filed with the Commission by the Bank as an Exhibit to a Form 6-K. We express no opinion with respect to those matters, and to the extent elements of that opinion are necessary to the opinion expressed herein, we have, with your consent, assumed the correctness of such matters, and have relied upon the opinions of such counsel as permitted therein. The opinion expressed herein is given only as of the date hereof.
We hereby consent to the filing of this opinion as an exhibit to a Report on Form 6-K filed by the Bank with the Commission on or about the date hereof and its incorporation by reference into the Registration Statement. In giving our consent hereunder, we do not admit hereby that we come within the category of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations of the Commission thereunder.
Very truly yours
/s/ Ashurst LLP
ASHURST LLP
Exhibit 5.5
|
|
Mayer Brown LLP 1221 Avenue of the Americas
T: +1 212 506 2500 F: +1 212 262 1910 mayerbrown.com |
May 26, 2022
Bank of Montreal
100 King Street West
1 First Canadian Place
Toronto, Ontario
Canada, M5X 1A1
Re: Bank of Montreal – Medium-Term Notes, Series I
Ladies and Gentlemen:
We have acted as special U.S. counsel in connection with certain senior debt securities (the “Notes”) which will be issued from time to time by Bank of Montreal, a bank organized under the laws of Canada (the “Bank”). The offerings of the Notes have been registered with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), under a registration statement on Form F-3, file number 333-264388, as amended (the “Registration Statement”).
The Notes will be issued pursuant to the Senior Indenture, dated as of January 25, 2010, as supplemented by the first Supplemental Indenture dated as of September 23, 2018, between the Bank and Wells Fargo Bank, National Association (the “Original Trustee”), and the third Supplemental Indenture dated as of May 26, 2022 between the Bank, Computershare Trust Company, N.A., as successor to the Original Trustee, and the Bank of New York Mellon (collectively, the “Senior Indenture”).
In connection with this opinion, we have examined such documents, instruments, certificates of public officials and of the Bank and such questions of law as we have deemed necessary for the purpose of rendering the opinion set forth herein.
In such examination, we have assumed the genuineness of all signatures and the authenticity of all items submitted to us as originals and the conformity with authentic originals of all items submitted to us as copies.
The opinions hereinafter expressed are subject to the following qualifications and exceptions:
| (i) | the effect of bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws relating to or affecting the rights of creditors generally, including, without limitation, laws relating to fraudulent transfers or conveyances, preferences and equitable subordination; |
| (ii) | limitations imposed by general principles of equity upon the availability of equitable remedies or the enforcement of provisions of any Notes, and the effect of judicial decisions which have held that certain |
| provisions are unenforceable where their enforcement would violate the implied covenant of good faith and fair dealing, or would be commercially unreasonable, or where their breach is not material; |
| (iii) | our opinion is based upon current statutes, rules, regulations, cases and official interpretive opinions, and it covers certain items that are not directly or definitively addressed by such authorities; |
| (iv) | we express no opinion as to the effect of any possible judicial, administrative or other action giving effect to, or which constitute, the actions of foreign governmental authorities or foreign laws; |
| (v) | we express no opinion as to matters governed by laws of any jurisdiction other than the laws of the State of New York and the federal laws of the United States of America, as in effect on the date hereof; and |
| (vi) | with respect to all federal and provincial laws of Canada, we are relying upon the opinion, dated the date hereof, of the Bank’s Canadian counsel, Osler, Hoskin & Harcourt LLP, and our opinion is subject to the assumptions, qualifications and limitations that are set forth in that opinion. |
Based on the foregoing, it is our opinion that when the terms of the Notes to be issued under the Senior Indenture and their issuance and sale have been duly established in conformity with the Senior Indenture so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Bank, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Bank, and when the Notes have been duly completed in accordance with the Senior Indenture and issued and sold as contemplated by the Registration Statement, and if all the foregoing actions have been duly authorized by the Bank, the Notes will be valid, binding and enforceable obligations of the Bank, entitled to the benefits of the Senior Indenture.
If a pricing supplement relating to the offer and sale of any particular Note is prepared and filed by the Bank with the Commission on a future date and the pricing supplement contains a reference to this firm and our opinion substantially in the form set forth below, the consent set forth below shall apply to the reference to us and our opinion in substantially the following form:
“In the opinion of Mayer Brown LLP, when the pricing supplement has been attached to, and duly notated on, the master note that represents the Notes, and the Notes have been issued and sold as contemplated by the prospectus supplement and the prospectus, the Notes will be valid, binding and enforceable obligations of Bank of Montreal, entitled to the benefits of the Senior Indenture, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability (including, without limitation, concepts of good faith, fair dealing and the lack of bad faith). This opinion is given as of the date hereof and is limited to the laws of the State of New York. Insofar as this opinion involves matters governed by Canadian law, Mayer Brown LLP has assumed, without independent inquiry or investigation, the validity of the matters opined on by Osler, Hoskin & Harcourt LLP, Canadian legal counsel for the issuer, in its opinion expressed above. This opinion is subject to customary assumptions about the trustees’ authorization, execution and delivery of the Senior Indenture and the genuineness of signatures and to such counsel’s reliance on the Bank and other sources as to certain factual matters, all as stated in the legal opinion dated May 26, 2022, which has been filed as an exhibit to a report on Form 6-K by the Bank of Montreal on May 26, 2022.”
We hereby consent to the filing of this opinion as an exhibit to a report on Form 6-K to be filed by the Bank with the Commission on or about the date hereof and its incorporation by reference into the Registration Statement. In giving our consent hereunder, we do not admit hereby that we come within the category of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations of the Commission thereunder.
| Very truly yours, |
| /s/ Mayer Brown LLP |
|
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 |
Exhibit 8.3
May 26, 2022
Bank of Montreal
100 King Street West
1 First Canadian Place
Toronto, Ontario
Canada, M5X 1A1
Ladies and Gentlemen:
We are rendering this opinion as special Canadian tax counsel to Bank of Montreal, a bank organized under the laws of Canada (the “Bank”), in connection with the Bank’s pre-effective amendment to a Form F-3 registration statement (File No. 333-264388) (the “Pre-Effective Amendment No. 1”). The Pre-Effective Amendment No. 1 was filed with the Securities and Exchange Commission (the “Commission”) on May 25, 2022 and amends a registration statement on Form F-3 filed on April 20, 2022. It registers, among other securities, Senior Debt Securities, including up to US$42,000,000,000 aggregate principal amount of the Bank’s Senior Medium-Term Notes, Series H and I (the Senior Medium-Term Notes, Series I, the “Notes”), to be issued from time to time pursuant to a prospectus supplement dated May 25, 2022 (the “Prospectus Supplement”) to the prospectus dated May 25, 2022 forming a part of the Pre-Effective Amendment No. 1 (the “Prospectus”) and the Indenture dated as of January 25, 2010 between the Bank and Computershare Trust Company, N.A. as successor to Wells Fargo Bank, National Association, as trustee, as supplemented by the first supplemental indenture thereto, dated as of September 23, 2018, between the Bank and Computershare Trust Company, N.A. as successor to Wells Fargo Bank, National Association, as trustee, and the third supplemental indenture thereto, dated as of May 26, 2022, among the Bank, The Bank of New York Mellon, as trustee with respect to the Notes, and Computershare Trust Company, N.A. as successor to Wells Fargo Bank, National Association.
We are qualified to practice law only in the Province of Ontario. We express no opinion as to the laws of any jurisdiction other than those of the Province of Ontario and the federal laws of Canada applicable therein in effect on the date hereof.
We have reviewed the discussion set forth under the heading “Certain Income Tax Consequences – Certain Canadian Income Tax Considerations” in the Prospectus Supplement. Based upon current law, we adopt such discussion as our opinion with respect to the material Canadian federal income tax consequences of the purchase, ownership and disposition of Notes, subject to the qualifications and limitations set forth in such discussion. We also confirm as our opinion the discussion of the material Canadian federal income tax consequences of the purchase, ownership and disposition of Notes contained in any prospectus supplement, product
- 2 -
supplement or pricing supplement in which we are named as the provider of such opinion, subject to the qualifications and limitations set forth in such discussion.
We consent to your filing a copy of this opinion as Exhibit 8.3 to a Current Report on Form 6-K, which will be incorporated by reference into the Registration Statement. In giving such permission, we do not admit hereby that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Commission thereunder. This opinion is expressed as of the date hereof and the date of any prospectus supplement, product supplement or pricing supplement in which we are named as the provider of a Canadian tax opinion contained therein. We disclaim any undertaking to advise you of any subsequent changes of the facts stated or assumed herein or any subsequent changes in applicable law after the date of this letter or the date of such prospectus supplement, product supplement or pricing supplement.
| Yours truly,
/s/ Torys LLP |
|
|
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 |
Exhibit 23.9
May 26, 2022
Bank of Montreal
100 King Street West
1 First Canadian Place
Toronto, Ontario
Canada, M5X 1A1
Re: Bank of Montreal – Senior Medium-Term Notes, Series I
Ladies and Gentlemen:
Bank of Montreal, a bank organized under the laws of Canada (the “Bank”), in connection with the Bank’s pre-effective amendment to a Form F-3 registration statement (File No. 333-264388) (the “Pre-Effective Amendment No. 1”). The Pre-Effective Amendment No. 1 was filed with the Securities and Exchange Commission (the “Commission”) on May 25, 2022 and amends a registration statement on Form F-3 filed on April 20, 2022. It registers, among other securities, Senior Debt Securities, including up to US$42,000,000,000 aggregate principal amount of the Bank’s Senior Medium-Term Notes, Series H and I (the Senior Medium-Term Notes, Series I, the “Notes”), to be issued from time to time pursuant to a prospectus supplement dated May 25, 2022 (the “Prospectus Supplement”) to the prospectus dated May 25, 2022 forming a part of the Pre-Effective Amendment No. 1 (the “Prospectus”) and the Indenture dated as of January 25, 2010 between the Bank and Computershare Trust Company, N.A. as successor to Wells Fargo Bank, National Association, as trustee, as supplemented by the first supplemental indenture thereto, dated as of September 23, 2018, between the Bank and Computershare Trust Company, N.A. as successor to Wells Fargo Bank, National Association, as trustee, and the third supplemental indenture thereto, dated as of May 26, 2022, among the Bank, The Bank of New York Mellon, as trustee with respect to the Notes, and Computershare Trust Company, N.A. as successor to Wells Fargo Bank, National Association.
We hereby consent to any reference to us, in our capacity as special Canadian tax counsel to the Bank, or any opinion of ours delivered in that capacity in a prospectus supplement, product supplement or pricing supplement relating to the offer and sale of any particular Note or Notes prepared and filed by the Bank with the Commission on this date or a future date.
In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
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Sincerely,
/s/ Torys LLP
| Exhibit 23.10
Ashurst LLP 55 Hudson Yards New York, NY 10001 Tel +1 212 205 7000 Fax +1 212 205 7020
www.ashurst.com |
May 26, 2022
Bank of Montreal
100 King Street West
1 First Canadian Place
Toronto, Ontario
Canada, M5X 1A1
Ladies and Gentlemen
Bank of Montreal – Medium-Term Notes
We are acting as special US counsel to Bank of Montreal, a Canadian chartered bank (the “Bank”), in connection its issuance from time to time of certain senior debt securities that will be issued under its Medium-Term Note Program, Series D, E, F, G and I (the “Notes”). The offerings of the Notes have been registered with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), under a registration statement on Form F-3, file number 333-264388 (the “Registration Statement”).
We hereby consent to any reference to us, in our capacity as special tax counsel to the Bank, or any opinion of ours delivered in that capacity in a product supplement, product prospectus supplement or pricing supplement relating to the offer and sale of any particular Notes prepared and filed by the Bank with the Commission on this date or a future date.
In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ Ashurst LLP
Ashurst LLP
Ashurst LLP is a limited liability partnership registered in England and Wales under number OC330252 and is part of the Ashurst Group. It is a law firm authorised and regulated by the Solicitors Regulation Authority of England and Wales under number 468653. A list of members of Ashurst LLP and their professional qualifications is open to inspection at its registered office Broadwalk House, 5 Appold Street, London EC2A 2AG. The term “partner” in relation to Ashurst LLP is used to refer to a member of Ashurst LLP or to an employee or to a consultant with equivalent standing and qualifications.
EXHIBIT 23.11
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Mayer Brown LLP 1221 Avenue of the Americas New York, NY 10020-1001 United States of America
T: +1 212 506 2500 F: +1 212 262 1910 mayerbrown.com |
May 26, 2022
Bank of Montreal
100 King Street West
1 First Canadian Place
Toronto, Ontario
Canada, M5X 1A1
Re: Bank of Montreal - Medium-Term Notes, Series I
Ladies and Gentlemen:
Bank of Montreal, a bank organized under the laws of Canada (the “Bank”), has filed with the Securities and Exchange Commission (the “Commission”) a Registration Statement on Form F-3, file number 333-264388, for the purpose of registering under the Securities Act of 1933, as amended, among other securities, the Company’s Senior Medium-Term Notes, Series I (the “Notes”), to be issued from time to time pursuant to the Senior Indenture, dated as of January 25, 2010, as supplemented by the first Supplemental Indenture dated as of September 23, 2018, between the Bank and Wells Fargo Bank, National Association (the “Original Trustee”), and the third Supplemental Indenture dated as of May 26, 2022 between the Bank, Computershare Trust Company, N.A., as successor to the Original Trustee, and the Bank of New York Mellon (collectively, the “Senior Indenture”).
We hereby consent to any reference to us, in our capacity as special tax counsel to the Bank, or any opinion of ours delivered in that capacity in a product supplement, product prospectus supplement or pricing supplement relating to the offer and sale of any particular Note or Notes prepared and filed by the Bank with the Commission on this date or a future date.
In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
| Very truly yours, |
| /s/ Mayer Brown LLP |
Exhibit 99.1
BANK OF MONTREAL
TO
THE BANK OF NEW YORK MELLON
Series Trustee
and
COMPUTERSHARE TRUST COMPANY, N.A.
Original Trustee
Third Supplemental Indenture
Dated as of May 26, 2022
to
Indenture
Dated as of January 25, 2010
Senior Debt Securities
THIRD SUPPLEMENTAL INDENTURE, dated as of May 26, 2022, among Bank of Montreal, a Canadian chartered bank (herein called the “Bank”), having its principal executive offices located at 100 King Street West, 1 First Canadian Place, Toronto, Ontario, Canada M5X 1A1 and its head office located at 129 rue Saint Jacques, Montreal, Quebec, Canada H2Y 1L6, The Bank of New York Mellon, a banking corporation organized under the laws of the State of New York (herein called the “Series Trustee”), and Computershare Trust Company, N.A., a national banking association organized under the laws of the United States of America, as successor to Wells Fargo Bank, National Association, a national banking association organized under the laws of the United States of America (herein called the “Original Trustee,” and, together with the Series Trustee, each a “Trustee”).
RECITALS OF THE BANK
WHEREAS, the Bank and the Original Trustee have heretofore executed and delivered an Indenture, dated as of January 25, 2010 (the “Base Indenture”), as supplemented by the First Supplemental Indenture, dated as of September 23, 2018, between the Bank and the Original Trustee (the “First Supplemental Indenture”), the Second Supplemental Indenture, dated as of May 27, 2021, among the Bank, the Series Trustee and the Original Trustee (the “Second Supplemental Indenture”, and the Base Indenture as supplemented by the First Supplemental Indenture, the Second Supplemental Indenture and as hereby supplemented and amended, the “Indenture”) providing for the issuance from time to time of series of the Bank’s unsecured senior debt securities (hereinafter called the “Securities”);
WHEREAS, Section 901(8) of the Base Indenture provides that the Bank and the Original Trustee, without the consent of any Holders, at any time and from time to time, may enter into one or more indentures supplemental thereto, to evidence and provide for the acceptance of appointment thereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of the Indenture as shall be necessary to provide for or facilitate the administration of the trusts thereunder by more than one Trustee, pursuant to the requirements of Section 611 of the Base Indenture;
WHEREAS, Section 611 of the Base Indenture provides that in case of the appointment thereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Bank, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental thereto wherein each successor Trustee shall accept such appointment and that (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of the Indenture as shall be necessary to provide for or facilitate the administration of the trusts thereunder by more than one Trustee, it being understood that nothing therein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts thereunder separate
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and apart from any trust or trusts thereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates;
WHEREAS, pursuant to Section 901(8) of the Base Indenture, the Bank wishes to enter into this Third Supplemental Indenture to evidence and provide for the acceptance of appointment by the Series Trustee with respect to the Securities (the “Series I Securities”) of a new series of medium-term notes to be designated as the “Senior Medium-Term Notes, Series I” of the Bank and to add to or change any of the provisions of the Indenture as shall be necessary to provide for or facilitate the administration of the trusts thereunder by more than one Trustee, pursuant to the requirements of Section 611 of the Base Indenture;
WHEREAS, Section 901(5) of the Base Indenture provides that the Bank and the Original Trustee at any time and from time to time, may enter into one or more indentures supplemental thereto, in form satisfactory to the Original Trustee, to add to, change or eliminate any of the provisions of the Base Indenture in respect of one or more series of Securities, provided that any such addition, change or elimination shall neither (i) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights of the Holder of any such Security with respect to such provision;
WHEREAS, the Bank wishes to make certain changes only to the Series I Securities issued after the time this Third Supplemental Indenture is executed and not applying to, or modifying the rights of Holders of, any other Securities and to make certain other amendments to the Base Indenture with respect to the Series I Securities (but not with respect to any Securities of any other series);
WHEREAS, the Bank has requested that the Trustees execute and deliver this Third Supplemental Indenture; and all requirements necessary to make this Third Supplemental Indenture a valid, binding and enforceable instrument in accordance with its terms, and to make the Series I Securities, when executed by the Bank and authenticated and delivered by the Series Trustee, the valid, binding and enforceable obligations of the Bank, have been satisfied; and the execution and delivery of this Third Supplemental Indenture has been duly authorized in all respects.
NOW, THEREFORE, WITNESSETH:
In consideration of the covenants and other provisions set forth in this Third Supplemental Indenture and the Base Indenture, the Bank and the Trustees mutually covenant and agree with one another, and for the equal and proportionate benefit of the respective Holders of the applicable Securities from time to time, as follows:
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ARTICLE ONE
PROVISIONS OF GENERAL APPLICATION
Section 101. Relation to Base Indenture.
This Third Supplemental Indenture constitutes an integral part of the Indenture.
Section 102. Governing Law.
This Third Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York.
ARTICLE TWO
AMENDMENTS
Section 201. Applicability.
Except as may be provided pursuant to Section 301 of the Base Indenture, this Third Supplemental Indenture shall apply solely to the Series I Securities and shall not apply to, or modify the rights of Holders or Beneficial Owners of, any Securities of any other series.
Section 202. Definition of Terms.
For purposes of the Trust Indenture Act, solely with respect to the Series I Securities (but not with respect to any Securities of any other series), “indenture trustee” or “institutional trustee” shall mean the Series Trustee and not the Original Trustee.
Section 203. Amendments to Base Indenture.
Solely with respect to the Series I Securities (and not with respect to any Securities of any other series), the following amendments are hereby made to the Indenture:
(a) Section 603(9) of the Base Indenture shall be amended by deleting it in its entirety and replacing it with the below:
“(9) the Trustee shall not be deemed to have notice of any Event of Default unless written notice of any event which is in fact such a default is delivered to the Trustee in accordance with an appropriate manner of delivery as set forth elsewhere in this Indenture, and such notice references the Securities or this Indenture.”
(b) Section 603 of the Base Indenture shall be amended by adding the below after subsection 603(9):
“(10) in no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of
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| profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action; |
(11) in no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, pandemics or epidemics, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances;
(12) the Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (for the purposes of this Section, “Instructions”) given pursuant to the Indenture and delivered using Electronic Means; provided, however, that the Bank shall provide to the Trustee an incumbency certificate listing authorized officers and containing specimen signatures of such authorized officers, which incumbency certificate shall be amended by the Bank whenever a person is to be added or deleted from the listing. If the Bank elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Bank understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an authorized officer listed on the incumbency certificate provided to the Trustee have been sent by such authorized officer. The Bank shall be responsible for ensuring that only authorized officers transmit such Instructions to the Trustee and that the Grantor, the Beneficiary and all authorized officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Bank. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Bank agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Bank; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures. “Electronic Means” shall mean the following communications methods: e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder; and
(13) The Bank agrees (i) to provide the Trustee with such reasonable information as it has in its possession to enable the Trustee to determine whether any payments pursuant to the
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Indenture are subject to the withholding requirements described in Section 1471(b) of the US Internal Revenue Code of 1986 (the “Code”) or otherwise imposed pursuant to Sections 1471 through 1474 of the Code and any regulations, or agreements thereunder or official interpretations thereof (“Applicable Law”), and (ii) that the Trustee shall be entitled to make any withholding or deduction from payments under the Indenture to the extent necessary to comply with Applicable Law, for which the Trustee shall not have any liability.”
(c) Notwithstanding anything to the contrary in the Indenture, the Base Indenture shall be amended by inserting the words “, including, for the avoidance of doubt, the Global Head, Capital Management and Funding” immediately following the term “Vice-President Corporate Treasury”, wherever such term appears in the Base Indenture.
ARTICLE THREE
SERIES TRUSTEE
Section 301. Appointment and Acceptance of Series Trustee
Pursuant to Section 611 of the Base Indenture:
(a) The Bank hereby appoints the Series Trustee, and the Series Trustee accepts such appointment, as successor trustee under the Indenture solely with respect to the Series I Securities (but not with respect to any Securities of any other series).
(b) There shall be vested in the Series Trustee all the rights, powers, trusts and duties of the Trustee under the Indenture with respect to the Series I Securities (but not with respect to any Securities of any other series) with like effect as if the Series Trustee had originally been named as Trustee in the first paragraph of the Base Indenture.
(c) There shall continue to be vested in the Original Trustee all the rights, powers, trusts and duties of the Trustee under the Indenture with respect to any Securities of any other series (but not with respect to any Series I Securities) heretofore or hereafter issued by the Bank under the Indenture.
Section 302. Eligibility of Series Trustee.
The Series Trustee hereby represents that it is qualified and eligible under the provisions of the Trust Indenture Act and Section 609 of the Base Indenture to accept its appointment as successor trustee under the Indenture solely with respect to the Series I Securities (but not with respect to any Securities of any other series).
Section 303. Concerning the Trustees.
(a) No Trustee assumes any duties, responsibilities or liabilities by reason of this Third Supplemental Indenture other than as set forth in the Indenture, and in carrying out its responsibilities hereunder, each Trustee shall have all of the rights, powers, privileges, protections, duties and immunities which it possesses under the Indenture.
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(b) Nothing contained herein shall constitute the Trustees co-trustees of the same trust and each Trustee shall be trustee of a trust or trusts under the Indenture separate and apart from any trust or trusts under the Indenture administered by any other such Trustee.
(c) The Original Trustee shall have no duties, responsibilities or liabilities for any acts or omissions of the Series Trustee and the Series Trustee shall have no duties, responsibilities or liabilities for any acts or omissions of the Original Trustee.
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
Section 401. Ratification of Base Indenture.
The Base Indenture, as supplemented by the First Supplemental Indenture, the Second Supplemental Indenture and this Third Supplemental Indenture, is in all respects ratified and confirmed, and this Third Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and therein provided.
Section 402. Trustee Not Responsible for Recitals.
The recitals contained herein and in the Securities, except for a Trustee’s certificate of authentication, shall be taken as the statements of the Bank, and the Trustees assume no responsibility for their correctness. The Trustees make no representations as to the validity or sufficiency of this Third Supplement Indenture or of the Securities. The Trustees shall not be accountable for the use or application by the Bank of Securities or the proceeds thereof.
Section 403. Execution in Counterparts.
This Third 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 Third Supplemental Indenture and of signature pages by facsimile or electronic format (i.e., “.pdf” or “.tif”) transmission shall constitute effective execution and delivery of this Third Supplemental Indenture as to the parties hereto and may be used in lieu of the original Third Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or electronic format (i.e., “.pdf” or “.tif”) shall be deemed to be their original signatures for all purposes. This Third Supplemental Indenture shall be valid, binding, and enforceable against a party only when executed and delivered by an authorized individual on behalf of the party by means of (i) any electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including relevant provisions of the Uniform Commercial Code/UCC (collectively, “Signature Law”); (ii) an original manual signature; or (iii) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any party and shall have no duty
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to investigate, confirm or otherwise verify the validity or authenticity thereof. This Third Supplemental Indenture may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute one and the same instrument. For avoidance of doubt, original manual signatures shall be used for execution or indorsement of writings when required under the UCC or other Signature Law due to the character or intended character of the writings.
[Signature page follows]
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IN WITNESS WHEREOF, the parties have caused this Third Supplemental Indenture to be duly executed as of the date first written above.
| BANK OF MONTREAL | ||
| By: | /s/ Stephen Lobo | |
| Name: Stephen Lobo | ||
| Title: Treasurer | ||
| THE BANK OF NEW YORK MELLON, as Series Trustee | ||
| By: | /s/ Latoya S. Elvin | |
| Name: Latoya S. Elvin | ||
| Title: Vice President | ||
| COMPUTERSHARE TRUST COMPANY, N.A., as Original Trustee, as successor to WELLS FARGO BANK, NATIONAL ASSOCIATION | ||
| By: | /s/ Amy Thompson | |
| Name: Amy Thompson | ||
| Title: Vice President | ||
[Signature Page to Third Supplemental Indenture]