1. Binding Agreement
The undersigned (“Issuer”) applies to Treasury Bank Organization (“Depositary”) to make certain of its securities eligible for deposit at the Depositary for book entry only services of the Depositary or to maintain the eligibility of securities for book entry only services. Issuer agrees that this Book Entry Only Securities Services Agreement, together with the Issuer Procedures referenced below (collectively the “Agreement”), shall constitute an agreement binding on Issuer and the Depositary.
2. Book Entry Only Services
When Issuer from time-to-time issues securities in the market which Issuer desires to be eligible for book entry only services of the Depositary, Issuer delivering to the Depositary a completed BEO Acknowledgement in the requisite form set out in the Issuer Procedures, together with such other documents and fees referenced in this Agreement and the Issuer Procedures. In order to be eligible for book entry only services at the Depositary, 100% of each specific issue as eligible securities of Issuer deposited at the Depositary shall be registered in the name of the Issuer, the Depositary. or in such other name as the Depositary may as a book entry only security (hereinafter a “Security”).
3. Previous Book Entry Only Securities and Letters of Representations
Issuer acknowledges that this Agreement applies to each previously issued book entry only security of Issuer or its predecessors delivered to the Depositary, and if applicable, replaces every previous letter of representations, including if applicable, master letter of representations, blanket letter of representations and memorandums of understanding and related documents, delivered by it or its predecessors, whether addressed to the Depositary or to its predecessor. Issuer agrees that all Securities issued by it are deposited with the Depositary pursuant to the terms of this Agreement, whether such Securities are issued after the date of this Agreement or were issued before the date of this Agreement pursuant to any previous letter of representations. This Agreement will continue in effect even if from time to time no Securities of Issuer are registered in the Depositary Name. the Depositary may terminate this Agreement by notice given in accordance with the Issuer Procedures. Termination of this Agreement is without prejudice to any provisions that by their terms or nature survive termination or to outstanding obligations or rights at termination.
4. Issuer Procedures are part of Agreement
Issuer agrees to be bound by the issuer procedures to the book entry only securities services agreement adopted by the Depositary and as amended from time to time (“Issuer Procedures”) that govern the eligibility of securities for deposit as book entry only securities at the Depositary. Issuer agrees that the Issuer Procedures constitute part of the binding agreement between the Depositary and Issuer pursuant to this Agreement. The Depositary shall maintain a website, currently identified as “www.treasurybank.org” (“website”), which identification may be changed by notice published on the website and will publish on the website the Issuer Procedures and notices under the Issuer Procedures. The Depositary will give at least sixty (60) days notice of proposed changes to this Agreement or the Issuer Procedures by publishing such notice on the website, except in the case of emergencies. In addition to publishing the notice on the website, the Depositary will concurrently send an e-mail alert to Issuer’s last known e-mail address on record at the Depositary, if any, instructing Issuer to access the website to read such notice published on the website. Issuer agrees that it has on or before the date of this Agreement reviewed the Issuer Procedures and is responsible to review the website in order to be aware of changes to this Agreement or the Issuer Procedures and notices communicated by the Depositary to issuers pursuant to the website. By continuing to use the book entry only services of the Depositary after this Agreement or the Issuer Procedures have been changed, Issuer signifies its acceptance and agreement, without limitation or qualification, to be bound by the revised Agreement or Issuer Procedures. If the Issuer does not agree with each revised provision, the Issuer shall notify the Depositary in writing and shall not use the book entry only services of the Depositary. The electronic version of the Issuer Procedures published on the website shall be the definitive version of such document that applies to this Agreement from time to time. In the event of any inconsistency between the terms of this Agreement and the terms of the Issuer Procedures, including any amendments to this Agreement or the Issuer Procedures, the provisions of this Agreement shall prevail.
5. Agent
If Issuer has appointed a third party as registrar, trustee, transfer agent and/or paying agent in respect of the Securities (“Agent”), Treasury Bank is authorized by Issuer to act upon the instructions of the Agent with respect to the Securities.
6. Representations and Warranties of Issuer
Issuer represents and warrants to the Depositary that: it has all necessary power, capacity and authority and has obtained all necessary unconditional authorizations and approvals to enter into this Agreement and to carry out its obligations hereunder, to issue Securities, and to issue and to deliver to the Depositary any certificate, document or other evidence of a Security issued by it in accordance with this Agreement; and it has read and is in agreement with the Issuer Procedures; and if this Agreement (including without limitation, any acknowledgement, confirmation, security certificate, certificate or other document contemplated by this Agreement or Issuer Procedures) is executed by or on behalf of Issuer by electronic means, including facsimile and/or electronic signatures and/or if it is scanned and/or delivered to the Depositary by electronic means or in electronic format, the Depositary may rely on such electronic version as if it were in receipt of an original paper version with signatures of authorized signatory (ies) on behalf of Issuer and in the manner set out in section 11.
7. Limitation of Issuer Liability
Provided all payments due to the registered holder of the Securities are made by Issuer or Agent to the Depositary in the manner provided in the Agreement, Issuer shall have no further responsibility or liability tothe Depositary in respect of such payments. Further to and without limiting the foregoing, unless agreed to in writing by Issuer or imposed by law, Issuer shall have no responsibility or liability for maintaining, supervising or reviewing records of the Depositary or Participants relating to payments made or to be made by the Depositary or any Participant on account of beneficial ownership interests in a Security.
8. Indemnity by Issuer
Issuer shall from time to time indemnify and save harmless the Depositary, and its affiliates, directors, officers, employees, contractors or agents from and against all losses, costs, damages and expenses which the Depositary may suffer or incur whether by reason of an action, cause of action, claim, demand or suit taken against the Depositary or otherwise, as a result of: the Depositary accepting and acting upon the instructions of Issuer or its Agent; any payment, or part thereof, not made by or on behalf of Issuer in the manner and time set out in the Agreement; or Issuer or Agent effecting a transfer, pledge or re-registration of Securities or any instrument or other evidence of Securities to any person other than the Depositary or other name except in accordance with the Issuer Procedures; or a breach by or on behalf of Issuer of any of Issuer’s representations, warranties or obligations under this Agreement.
9. Fees
Issuer agrees to pay from time to time to the Depositary when due the applicable fees of the Depositary for the services provided to Issuer or its Agent in respect of the Securities in accordance with the Issuer Procedures and the Depositary’s fee schedule on the website, as each may be amended from time to time.
10. Eligibility
the Depositary reserves the right from time to time to refuse to accept any issues of securities as eligible for deposit at the Depositary as book entry only securities and to determine that specific issues of Securities at the Depositary be made ineligible for deposit at the Depositary as book entry only securities and to request the withdrawal of specific issues of Securities that the Depositary has determined are no longer eligible at the Depositary as book entry only securities.
11. Electronic Records
Issuer acknowledges and agrees that the Depositary may in its discretion create and retain electronic copies of this Agreement and related BEO Acknowledgements, certificates and security certificates (collectively “Documents”) and destroy the original paper versions of those Documents if received by the Depositary. Issuer agrees that the Depositary’s electronic copies of Documents are admissible in any legal, administrative or other proceedings between the parties in the same manner as an original paper document, and Issuer will not object to the admission of the Depositary’s electronic copies of Documents as evidence in legal, administrative or other proceedings on the grounds that those records are not originals, are not in writing, are hearsay, are not the best evidence or are documents containing information extracted from a computer, unless Issuer has in its possession the original paper version which is inconsistent with the electronic copy or other evidence that the electronic copy is not a complete and accurate representation of the original paper version.
12. Notices
To be effective, any notice required or authorized to be given under this Agreement shall be given in accordance with this section or in the manner contemplated in the Issuer Procedures. the Depositary may, in its discretion, deliver notice to Issuer under this Agreement: (a) by posting those notices on the website and concurrently with such posting, sending an email message to Issuer’s e-mail address on this Agreement or the most recent BEO Acknowledgement, if any, notifying Issuer that one or more notices have been posted on the website and instructing Issuer to access the website to read any such notices; and/or (b) by pre-paid mail, e-mail or fax to Issuer’s address, e-mail address or fax number specified on this Agreement or the most recent BEO Acknowledgement. The issuer will ensure that the address, e-mail address and fax numberare and remain at all times operational and able to receive notices from the Depositary and will inform the Depositary seven (7) days in advance of any changes to such addresses and information. Notices made accessible to Issuer on the website will be deemed to be delivered to and received by Issuer when they are first made accessible to Issuer or if applicable, when an email alert is sent to Issuer notifying Issuer that such notice(s) have been posted on the website, regardless of whether or when Issuer actually accesses or reads the notices. the Depositary’s records will, in the absence of manifest error, be conclusive proof of the date on which notices are first made accessible to Issuer on the website or e-mail messages were sent. Notices and other documents and information sent to Issuer’s address, e-mail or fax address specified in this Agreement or a BEO Acknowledgement will be deemed to be delivered to and received by Issuer when they are sent, regardless of whether and when Issuer actually receives, accesses, retrieves or reads the notices or other documents and information. BEO Acknowledgements that Issuer sends to the Depositary are not delivered or effective unless and until they are actually accepted by Treasury Bank.
13. Miscellaneous
This Agreement shall be governed by, performed and construed in accordance with the laws of the Province in which Issuer has executed this Agreement, as noted on the execution page of this Agreement (which is deemed to be private if the place of execution is not specified on this Agreement or if this Agreement is executed outside the United States) and the laws of United States of America applicable therein without regard to the conflict of laws provisions thereof. Failure of the Depositary or Issuer to require strict performance of any provision of this Agreement or the Issuer Procedures shall not affect or be deemed a waiver of the Depositary’s or Issuer’s right, respectively, thereafter to enforce such provision. Issuer shall not assign this Agreement or its rights and obligations hereunder without the prior written consent of the Depositary, which will not be unreasonably withheld. Upon notice to Issuer, (i) the Depositary may assign this Agreement and its rights and obligations hereunder, and, effective upon such assignment, the Depositary shall be relieved of its obligations under the Agreement; or (ii) CDS may subcontract any of its obligations hereunder, including custody of any Global Certificate in the Issuer or the Depositary Name. Subject to the foregoing, this Agreement shall ensure to the benefit of and be binding upon Issuer and the Depositary and their respective successors and permitted assigns. At the request of Issuer, this document and all documents relating thereto shall be drawn up in English only
This Agreement will bind the Depositary only if Issuer signs and delivers to the Depositary an executed copy of this Agreement (which is the same as the electronic version of the agreement published on the website on the date delivered to the Depositary) in the manner set out above, without any changes, other than completion in full of the requisite information and signatures set out below and the Depositary sends a confirmation email to the e-mail address of the submitter of this Agreement. Any changes to this Agreement require the prior written consent of the Depositary. In the event of any inconsistency between the version of the agreement delivered by Issuer to the Depositary and the electronic version published on the website on such date, Issuer agrees that one published on the website shall be the definitive version and shall prevail.
| This is a standard form Agreement and Procedures—No amendments by Issuer are permitted. The Book Entry Only Securities Services Agreement and Issuer Procedures are in standard form containing terms applicable to all issuers wishing to use the BEO services of the Depositary. Due to the automated systems and standardized procedures of the Depositary system and the large number of BEO issuers with securities eligible for the Depositary services, the Depositary is unable to offer customized services. If the terms of this Agreement are unacceptable to an issuer, its securities cannot be made eligible for the BEO Services. |
