Exhibit 4.5
TRUST AGREEMENT, dated as of December 3, 1996, by and between Mellon
Bank Corporation, a Pennsylvania corporation, as "Depositor", and Chase
Manhattan Bank Delaware, a Delaware banking corporation, as "Trustee".
The Depositor and the Trustee hereby agree as follows:
Section 1. The Trust. The trust created hereby shall be known as Mellon
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Capital II (the "Trust"), in which name the Trustee, or the Depositor to
the extent provided herein, may conduct the business of the Trust, make
and execute contracts, and xxx and be sued.
Section 2. The Trust Estate. The Depositor hereby assigns, transfers,
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conveys and sets over to the Trustee the sum of $10. The Trustee hereby
acknowledges receipt of such amount in trust from the Depositor, which amount
shall constitute the initial trust estate. The Trustee hereby declares that
it will hold the trust estate in trust for the Depositor. It is the intention
of the parties hereto that the Trust created hereby constitute a business
trust under Chapter 39 of Title 12 of the Delaware Code, 12 Del. C. Section
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3801, et seq. (the "Business Trust Act"), and that this document constitute
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the governing instrument of the Trust. The Trustee is hereby authorized
and directed to execute and file a certificate of trust with the Delaware
Secretary of State in accordance with the provisions of the Business Trust
Act.
Section 3. Amended and Restated Trust Agreement. The Depositor, the
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Trustee and certain other parties will enter into an amended and restated
Trust Agreement, satisfactory to each such party and substantially in the
form to be included as an exhibit to the 1933 Act Registration Statement
(as defined below), to provide for the contemplated operation of the Trust
created hereby and the issuance of the Preferred Securities (as defined
below) and common securities of the Trust to be referred to therein. Prior
to the execution and delivery of such amended and restated Trust Agreement,
the Trustee shall not have any duty or obligation hereunder or with respect
to the trust estate, except as otherwise required by applicable law or as
may be necessary to obtain prior to such execution and delivery and licenses,
consents or approvals required by applicable law or otherwise.
Section 4. Certain Authorizations. The Depositor and the Trustee hereby
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authorize and direct the Depositor, as the sponsor of the Trust, (i) to
file with the Securities and Exchange Commission (the "Commission") and
execute, in each case on behalf of the Trust (a) the Registration Statement
on Form S-3 (the "1933 Act Registration Statement"), including any pre-effective
or post-effective amendments to such 1933 Act Registration Statement (including
the prospectus and the exhibits contained therein), relating to the
registration under the Securities Act of 1933, as amended, of the preferred
securities of the Trust (the "Preferred Securities") and certain other
securities of the Depositor and (b) a Registration Statement on Form 8-A
(the "1934 Act Registration Statement") (including all pre-effective and
post-effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under Section 12 of the Securities Exchange
Act of 1934, as amended; (ii) to file with one or more national securities
exchanges (each, an "Exchange") or the National Association of Securities
Dealers ("NASD") and execute on behalf of the Trust a listing application
or applications and all other applications, statements, certificates,
agreements and other instruments as shall be necessary or desirable to cause
the Preferred Securities to be listed on any such Exchange or the NASD's
Nasdaq National
Market ("NASDAQ"); (iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments
of attorney for service of process and other papers and documents as the
Depositor on behalf of the Trust, may deem necessary or desirable to register
the Preferred Securities under the securities or "Blue Sky" laws; and (iv)
to execute on behalf of the Trust such Underwriting Agreements with one
or more underwriters relating to the offering of the Preferred Securities
as the Depositor, on behalf of the Trust, may deem necessary or desirable.
In the event that any filing referred to in clauses (i), (ii) or (iii) above
is required by the rules and regulations of the Commission, any Exchange,
the NASD or sate securities or "Blue Sky" laws, to be executed on behalf
of the Trust by a Trustee, the Depositor and any Trustee appointed pursuant
to Section 6 hereof are hereby authorized to join in any such filing and
to execute on behalf of the Trust any and all of the foregoing.
Section 5. Counterparts. This Trust Agreement may be executed in one
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or more counterparts, each of which shall be deemed an original but all
of which together shall constitute one and the same instrument.
Section 6. Trustees. The number of Trustees initially shall be one
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(1) and thereafter the number of Trustees shall be such number as shall
be fixed from time to time by a written instrument signed by the Depositor,
which may increase or decrease the number of Trustees; provided, however,
that to the extent required by the Business Trust Act, one Trustee shall
either be a natural person who is a resident of the State of Delaware or,
if not a natural person, an entity which has it principal place of business
in the State of Delaware and otherwise meets the requirements of applicable
Delaware law. Subject to the foregoing, the Depositor is entitled to appoint
or remove without cause any Trustee at any time. The Trustee may resign
upon thirty days' prior notice to the Depositor.
Section 7. Governing Law. This Trust Agreement shall be governed by,
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construed in accordance with, the laws of the State of Delaware (without
regard to conflicts of law principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
MELLON BANK CORPORATION
as Depositor
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Chairman, President and
Chief Executive Officer
CHASE MANHATTAN BANK DELAWARE,
as Trustee
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Trustee: Senior Trust Officer
