Exhibit 1.3
UNDERWRITING AGREEMENT
February 9, 1998
Mellon Financial Company
Mellon Bank Corporation,
Xxx Xxxxxx Xxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000.
Ladies and Gentlemen:
X.X. Xxxxxx Securities Inc., as Underwriter (the "Underwriter"),
understands that Mellon Financial Company, a Pennsylvania corporation (the
"Company"), proposes to issue and sell $350,000,000 aggregate principal amount
of 6 3/8% Subordinated Debentures due February 15, 2010 (the "Offered
Securities"), which are to be unconditionally guaranteed (as described in the
Prospectus Supplement and Prospectus referred to below) as to payments of
principal, premium, if any, and interest, if any, by Mellon Bank Corporation, a
Pennsylvania corporation registered as a bank holding company under the Bank
Holding Company Act (the "Guarantor"). Subject to the terms and conditions set
forth herein or incorporated by reference herein, the Company hereby agrees to
sell, the Guarantor agrees to guarantee, and the Underwriter agrees to purchase
$350,000,000 principal amount of such Offered Securities at 99.034% of their
principal amount, yielding total proceeds at closing of $346,619,000, plus
accrued interest, if any, from February 12, 1998.
The Underwriter will pay for such Offered Securities in immediately
available funds upon delivery thereof at the offices of Xxxxxxxx & Xxxxxxxx, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m. (local time) on February
12, 1998, or at such other time, not later than February 12, 1998, as shall be
designated by the Underwriter.
The Offered Securities shall have the terms set forth in the Company's and
the Guarantor's Prospectus Supplement, dated February 9, 1998, and the
Prospectus, dated September 6, 1995, particularly as follows:
Maturity: February 15, 2010
Interest Rate: 6 3/8% per annum
Redemption Provisions: None
Interest Payment Dates: February 15 and August 15, commencing
August 15, 1998
All the provisions contained in the documents entitled Mellon
Financial Company Underwriting Agreement Standard Provisions (Debt), dated
February 9, 1998, a copy of which you have previously received, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein.
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Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the appropriate space set forth below. This Agreement
may be signed in any number of counterparts with the same effect as if the
signatures thereto and hereto were upon the same instrument.
Very truly yours,
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxxx X. Post
-----------------------
Name: Xxxxxx X. Post
Title: Vice President
Accepted: February 9, 1998
MELLON FINANCIAL COMPANY
By: /s/ W. Xxxxx Xxxxx
------------------------
Name: W. Xxxxx Xxxxx
Title: Chairman
MELLON BANK CORPORATION
By: /s/ W. Xxxxx Xxxxx
------------------------
Name: W. Xxxxx Xxxxx
Title: Vice Chairman
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XXXXXX FINANCIAL COMPANY
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT)
February 9, 1998
From time to time Mellon Financial Company, a Pennsylvania corporation
(the "Company"), and Mellon Bank Corporation, a Pennsylvania corporation
registered as a bank holding company under the Bank Holding Company Act (the
"Guarantor"), may enter into one or more underwriting agreements that provide
for the sale of designated securities to the several underwriters named therein.
The standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as "this Agreement". Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined.
I.
The Company proposes to issue from time to time debt securities
consisting of debentures, notes and/or other unsecured evidences of indebtedness
(the "Securities") to be issued pursuant to the provisions of the Indenture,
dated as of May 2, 1988, as supplemented by the First Supplemental Indenture,
dated as of November 29, 1990, among the Company, the Guarantor and The Chase
Manhattan Bank (National Association), as trustee, and/or the Indenture, dated
as of August 25, 1995, among the Company, the Guarantor and The Bank of New York
(as successor to First Interstate Bank of California), as trustee, as the same
may be from time to time amended or supplemented (the applicable indenture being
referred to herein as the "Indenture" and the trustee thereunder being referred
to herein as the "Trustee"). The Securities will have varying designations,
maturities, rates and times of payment of interest, selling prices and
redemption terms. The Securities will be guaranteed as to payment of principal,
premium, if any, and interest, if any, by the Guarantor.
The Company and the Guarantor have filed with the Securities and
Exchange Commission (the "Commission") a registration statement, including a
prospectus relating to the Securities and to the unconditional guarantee by the
Guarantor of payment of principal, premium, if any, and interest, if any (the
"Guarantees"), and have filed with, or mailed for filing to, the Commission a
prospectus supplement specifically relating to the Offered Securities and
related Guarantees (the "Offered Guarantees") pursuant to Rule 424 of the rules
and regulations
promulgated under the Securities Act of 1933 (the "Securities Act"). The term
Registration Statement means the registration statement as amended to the date
of the Underwriting Agreement. The term Basic Prospectus means the prospectus
included in the Registration Statement. The term Prospectus means the Basic
Prospectus together with the prospectus supplement specifically relating to the
Offered Securities and Offered Guarantees as filed with, or mailed for filing
to, the Commission pursuant to Rule 424. The term preliminary prospectus means a
preliminary prospectus supplement specifically relating to the Offered
Securities and Offered Guarantees together with the Basic Prospectus. As used
herein, the terms "Registration Statement", "Basic Prospectus", "Prospectus" and
"preliminary prospectus" shall include in each case the material, if any,
incorporated by reference therein.
The term Underwriters' Securities means the Offered Securities to be
purchased by the Underwriters herein. The term Contract Securities means the
Offered Securities, if any, to be purchased pursuant to the delayed delivery
contracts referred to below.
II.
If the Prospectus provides for sales of Offered Securities pursuant to
delayed delivery contracts, the Company hereby authorizes the Underwriters to
solicit offers to purchase Contract Securities on the terms and subject to the
conditions set forth in the Prospectus pursuant to delayed delivery contracts
substantially in the form of Schedule I attached hereto ("Delayed Delivery
Contracts") but with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors
approved by the Company and of the types set forth in the Prospectus. On the
Closing Date (as hereinafter defined), the Company will pay the manager of the
Underwriters (the "Manager") as compensation, for the accounts of the
Underwriters, the fee set forth in the Underwriting Agreement in respect of the
principal amount of Contract Securities. The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed Delivery
Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the Contract Securities shall be deducted from the
Offered Securities to be purchased by the several Underwriters, and the
aggregate principal amount of Offered Securities to be purchased by each
Underwriter shall be reduced pro rata in proportion to the principal amount of
Offered Securities set forth opposite each Underwriter's name in the
Underwriting Agreement, except to the extent that the Manager
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determines that such reduction shall be otherwise and so advises the Company.
III.
The Company is advised by the Manager that the Underwriters propose to
make a public offering of their respective portions of the Underwriters'
Securities as soon after this Agreement is entered into as in the Manager's
judgment is advisable. The Underwriters will offer the Underwriters' Securities
for sale upon the terms and conditions set forth in the Prospectus.
IV.
Payment for the Underwriters' Securities shall be made by certified or
official bank check or checks drawn on a bank approved by the Company and
payable to the order of the Company in New York Clearing House funds at the time
and place set forth in the Underwriting Agreement, upon delivery to the Manager
for the respective accounts of the several Underwriters of the Underwriters'
Securities registered in such names and in such denominations as the Manager
shall request in writing not less than two full business days prior to the date
of delivery. The time and date of such payment and delivery with respect to the
Underwriters' Securities are herein referred to as the Closing Date. The
Offered Securities will be made available for checking and packaging at least
twenty-four hours prior to the time for delivery.
V.
The several obligations of the Underwriters hereunder are subject to
the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission, and the Manager shall have
received on the Closing Date a certificate, dated the Closing Date and
signed by an executive officer of the Company, to the foregoing effect. The
officer making such certificate may rely upon the best of his knowledge as
to proceedings pending or threatened.
(b) The Manager shall have received on the Closing Date an opinion
of the General Counsel or Assistant General Counsel of the Guarantor and
counsel to the Company, dated the Closing Date, to the effect set forth in
Exhibit A.
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(c) The Manager shall have received on the Closing Date an opinion of
Xxxxxxxx & Xxxxxxxx, as counsel to the Underwriters, dated the Closing
Date, with respect to the incorporation of the Company and the Guarantor,
the validity of the Indenture, the Offered Securities and the Offered
Guarantees, the Registration Statement, the Prospectus and other related
matters as the Manager may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters.
(d) The Manager shall have received on the Closing Date letters,
dated the Closing Date and in form and substance satisfactory to the
Manager, from KPMG Peat Marwick LLP, independent public accountants to the
Guarantor, to the effect set forth in Exhibit B.
(e) Since the respective dates as of which information is given in
the Prospectus, there shall not have been any material and adverse change,
or any development involving a prospective material and adverse change, in
the creditworthiness of the Company or the Guarantor, otherwise than as set
forth or contemplated in the Prospectus, the effect of which is in the
reasonable judgment of the Manager so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Offered Securities on the terms and in the manner
contemplated in the Prospectus.
(f) On or after the date of this Agreement (i) no downgrading shall
have occurred in the rating accorded the debt securities of or guaranteed
by the Guarantor or the preferred stock of the Guarantor by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Securities Act and (ii)
no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any debt securities of or guaranteed by the Guarantor or preferred stock of
the Guarantor.
(g) On or after the date of this Agreement there shall not have
occurred any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii) a
general moratorium on commercial banking activities in New York declared by
either Federal or New York State authorities; or (iii) the outbreak or
escalation of hostilities involving the United States or the declaration by
the United States of a national emergency or war, if the effect of any such
events specified in this clause (iii) in the judgment of the Underwriters
makes it
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impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities being delivered on the Closing Date on the terms
and in the manner contemplated by the Prospectus.
VI.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Company and the Guarantor hereby covenant:
(a) to furnish the Manager without charge a signed copy of the
Registration Statement, including exhibits and materials, if any,
incorporated by reference therein, and during the period mentioned in
paragraph (c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments
thereto as the Manager may reasonably request. (The terms "supplement" and
"amendment" or "amend" as used in this Agreement shall include all
documents filed by the Company with the Commission pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act") subsequent to the date
of the Basic Prospectus that are deemed to be incorporated by reference in
the Prospectus);
(b) before amending or supplementing the Registration Statement or
the Prospectus with respect to the Offered Securities and the Offered
Guarantees, to furnish the Manager a copy of each such proposed amendment
or supplement;
(c) if, during such period after the date of the first public
offering of the Offered Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered, any event
shall occur as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare and furnish at its own expense to the
Underwriters, either amendments or supplements to the Prospectus so that
the statements in the Prospectus as so amended or supplemented will not, in
light of the circumstances when the Prospectus is delivered to a purchaser,
be misleading or so that the Prospectus will comply with law;
(d) to endeavor to qualify the Offered Securities and the Offered
Guarantees for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Manager shall reasonably request, provided that, in
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connection therewith, neither the Company nor the Guarantor shall be
required to qualify as a foreign corporation or to file a general consent
to service of process in any jurisdiction, and to pay all expenses
(including fees and disbursements of counsel) in connection with the
determination of the eligibility of the Offered Securities and the Offered
Guarantees for investment under the laws of such jurisdictions as the
Manager may designate;
(e) to make generally available to the Guarantor's security holders
as soon as practicable an earnings statement covering a twelve-month period
beginning after the date of the Underwriting Agreement, which shall satisfy
the provision of Section 11(a) of the Securities Act; and
(f) during the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to offer,
sell, contract to sell or otherwise dispose of any debt securities issued
or guaranteed by the Guarantor that in the reasonable judgment of the
Manager are substantially similar to the Offered Securities, without the
prior written consent of the Manager.
VII.
Each of the Company and the Guarantor represents and warrants to each
Underwriter that (i) each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the requirements of the
Exchange Act and the rules and regulations thereunder, (ii) each part of the
Registration Statement (including the documents incorporated by reference
therein) filed with the Commission pursuant to the Securities Act relating to
the Securities and the Guarantees, when such part became effective, did not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, (iii)
each preliminary prospectus, if any, filed pursuant to Rule 424 under the
Securities Act complied when so filed in all material respects with the
requirements of the Securities Act and the applicable rules and regulations
thereunder, (iv) the Registration Statement and the Prospectus comply and, as
amended or supplemented, if applicable, will comply in all material respects
with the requirements of the Securities Act and the applicable rules and
regulations thereunder and (v) the Registration Statement and the Prospectus do
not contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material
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fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except that these
representations and warranties do not apply to statements or omissions in the
Registration Statement, any preliminary Prospectus or the Prospectus based upon
information furnished to the Company or the Guarantor in writing by any
Underwriter expressly for use therein.
The Company and the Guarantor jointly and severally agree to indemnify
and hold harmless each Underwriter and each person, if any, who controls such
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, any
preliminary prospectus or the Prospectus (if used within the period set forth in
paragraph (c) of Article VI hereof and as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements in the Registration Statement
not misleading, or the statements in any preliminary prospectus, the Prospectus
or any document incorporated by reference in the Registration Statement, in
light of the circumstances under which they were made, not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information furnished in writing to the Company or the Guarantor by any
Underwriter expressly for use therein.
Each Underwriter agrees to indemnify and hold harmless the Company and
the Guarantor, the directors of either, the officers of either who sign the
Registration Statement and any person controlling the Company or the Guarantor
to the same extent as the foregoing indemnity from the Company and the Guarantor
to each Underwriter, but only with respect to information relating to such
Underwriter furnished in writing by such Underwriter expressly for use in the
Registration Statement, any preliminary prospectus or the Prospectus.
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing, and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
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and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. Such
firm shall be designated in writing by the Manager in the case of parties
indemnified pursuant to the second preceding paragraph and by the Company in the
case of parties indemnified pursuant to the first preceding paragraph. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent but, if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment.
If the indemnification provided for in this Article VII is unavailable
to an indemnified party under the second or third paragraphs hereof or
insufficient in respect of any losses, claims, damages, or liabilities referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Guarantor on the one hand and the Underwriters on the
other from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Guarantor on the one hand and of the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative benefits received (by the Company and the Guarantor on the one hand and
the Underwriters on the other) in connection with the offering of the Offered
Securities shall be deemed to be in the same proportion as the total net
proceeds from the offering of such Offered Securities received by the Company
(before deducting expenses) bear to the total underwriting discounts and
commissions received by the Underwriters in respect thereof. The relative
fault of the
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Company and the Guarantor on the one hand and of the Underwriters on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
and the Guarantor or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statements or omission.
The Company, the Guarantor and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Article VII were
determined by pro rata allocation or by any other method of allocation which
does not take account of the considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Article VII, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities and Offered Guarantees
underwritten and distributed to the public by such Underwriter exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation within the meaning
of Section 11(f) of the Securities Act shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Article VII are
several, in proportion to the respective principal amounts of Offered Securities
purchased by each of such Underwriters, and not joint.
VIII.
The indemnity and contribution agreements contained in Article VII
hereof and the representations and warranties of the Company and the Guarantor
in this Agreement shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by any
Underwriter or on behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of the Company, the Guarantor or the directors or
officers or any person controlling the Company or the Guarantor and (iii)
acceptance of any payment for any of the Offered Securities.
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IX.
If any Underwriter shall default in its obligation to purchase the
Offered Securities which it has agreed to purchase hereunder, the Underwriters
may in their discretion arrange for themselves or another party or other parties
to purchase such Offered Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Underwriters do not
arrange for the purchase of such Offered Securities, then the Company and the
Guarantor shall be entitled to a further period of thirty-six hours within which
to procure another party or other parties satisfactory to the Underwriters to
purchase such Offered Securities on such terms. In the event that, within the
respective prescribed periods, the Underwriters notify the Company and the
Guarantor that they have so arranged for the purchase of such Offered
Securities, or the Company and the Guarantor notify the Underwriters that they
have so arranged for the purchase of such Offered Securities, the Underwriters
or the Company and the Guarantor shall have the right to postpone the Closing
Date for a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company and the
Guarantor agree to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the reasonable opinion of the
Manager may thereby be made necessary. The term "Underwriters" as used in this
Agreement shall include any person substituted under this Section IX with like
effect as if such person has originally been a party to this Agreement with
respect to such Offered Securities.
If, after giving effect to any arrangements for the purchase of the
Offered Securities of a defaulting Underwriter or Underwriters as provided in
the immediately preceding paragraph hereof, the aggregate principal amount of
such Offered Securities which remains unpurchased does not exceed one-eleventh
of the aggregate principal amount of all the Offered Securities, then the
Guarantor and the Company shall have the right to require each non-defaulting
Underwriter to purchase the principal amount of Offered Securities which such
Underwriter agreed to purchase hereunder and, in addition, to require each non-
defaulting Underwriter to purchase its pro rata share (based on the principal
amount of Offered Securities which such Underwriter agreed to purchase
hereunder) of the Offered Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
If, after giving effect to any arrangements for the purchase of the
Offered Securities of a defaulting Underwriter or Underwriters as provided in
the first paragraph of this
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Section IX, the aggregate principal amount of Offered Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the
Offered Securities or if the Guarantor and the Company shall not exercise the
right described in the immediately preceding paragraph to require non-defaulting
Underwriters to purchase Offered Securities of a defaulting Underwriter or
Underwriters, then this Agreement shall thereupon terminate, without liability
on the part of any non-defaulting Underwriters or the Company or the Guarantor,
except for the expenses to be borne by the Company, the Guarantor and the
Underwriters as provided in Section X hereof and the indemnity and contribution
agreements in Section VII hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
X.
Each of the Guarantor and the Company covenants and agrees with the
several Underwriters that the Company and the Guarantor will pay or cause to be
paid the following: (i) the fees, disbursements and expenses of the Guarantor's
and the Company's counsel and accountants in connection with the registration of
the Offered Securities and the Offered Guarantees under the Securities Act and
all other expenses in connection with the preparation, printing and filing of
the Registration Statement and the Prospectus and amendments and supplements
thereto and the mailing and delivering of copies thereof to the Underwriters and
to dealers; (ii) the cost of printing this Agreement, the Indenture and any Blue
Sky and legal investment memoranda; (iii) all expenses in connection with the
qualification of the Offered Securities and the Offered Guarantees for offering
and sale under state securities laws as provided in Section VI(d) hereof,
including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky and legal
investment surveys; (iv) any fees charged by securities rating services for
rating the Offered Securities; (v) the cost of preparing the Offered Securities;
(vi) the fees and expenses of the Trustee and any agent of the Trustee and the
fees and disbursements of counsel for the Trustee in connection with the
Indenture, the Offered Securities and the Offered Guarantees; and (vii) all
other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section X.
It is understood, however, that, except as provided in this Section X and
Sections VII and XI hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of any
of the Offered Securities by them and any advertising expenses connected with
any offers they may make.
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XI.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company or the
Guarantor to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company or the Guarantor shall be unable to
perform its obligations under this Agreement, the Company and the Guarantor will
reimburse the Underwriters, or such Underwriters as have so terminated this
Agreement with respect to themselves, severally, for all out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably incurred by
such Underwriters in connection with the Offered Securities.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
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Schedule I
DELAYED DELIVERY CONTRACT
,
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Mellon Financial
Company, a Pennsylvania corporation (the "Company"), and the Company agrees to
sell to the undersigned
$.......................
principal amount of the Company's [state title of issue], which are guaranteed
as to payment of principal, premium, if any, and interest, if any, by Mellon
Bank Corporation (the "Securities"), offered by the Prospectus dated ,
and Prospectus Supplement dated , , receipt of copies of which
are hereby acknowledged, at a purchase price of % of the principal amount
thereof plus accrued interest and on the further terms and conditions set forth
in this contract. The undersigned does not contemplate selling Securities prior
to making payment therefor.
The undersigned will purchase from the Company Securities in the
principal amounts and on the delivery dates set forth below:
Delivery Principal Plus Accrued
Date Amount Interest From:
-------- --------- --------------
..................... $ .................... .....................
..................... $ .................... .....................
..................... $ .................... .....................
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date."
Payment for the Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made to the Company or its order by
certified or official bank check drawn on a bank approved by the Company and in
New York Clearing House funds at the office of , New York,
N.Y., at 10:00 A.M. (New York time) on the Delivery Date, upon delivery to the
undersigned of the Securities to be purchased by the undersigned on the Delivery
Date, in such denominations and registered in such names as the undersigned may
designate by written or telegraphic communication addressed to the Company not
less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall
be subject to the conditions that (1) the purchase of Securities to be made by
the undersigned shall not at the time of delivery be prohibited under the laws
of the jurisdiction to which the undersigned is subject and (2) the Company
shall have sold, and delivery shall have taken place to the underwriters (the
"Underwriters") named in the Prospectus Supplement referred to above, of such
part of the Securities as is to be sold to them. Promptly after completion of
sale and delivery to the Underwriters, the Company will mail or deliver to the
undersigned at its address set forth below notice to such effect, accompanied by
a copy of the opinion of counsel for the Company delivered to the Underwriters
in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this contract is acceptable to the Company, it is requested that
the Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This
will become a binding contract, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
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This contract shall be governed by and construed in accordance with
the laws of the State of New York.
Very truly yours,
.........................
(Purchaser)
By.......................
.........................
(Title)
.........................
.........................
(Address)
Accepted:
MELLON FINANCIAL COMPANY
By.........................
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PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name, telephone number and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
---- --------------------- ----------
..................... ...................... .....................
..................... ...................... .....................
..................... ...................... .....................
..................... ...................... .....................
..................... ...................... .....................
..................... ...................... .....................
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Exhibit A
Opinion of the Counsel of the Guarantor
And Counsel to the Company
---------------------------------------
The opinion of the General Counsel, Associate General Counsel or
Assistant General Counsel of the Guarantor and counsel to the Company to be
delivered pursuant to Article V, paragraph (b) of the document entitled Mellon
Financial Company Underwriting Agreement Standard Provisions (Debt) shall be to
the following effect (all terms used herein which are defined in the Agreement
have the meanings set forth therein):
(i) Each of the Guarantor and the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the Commonwealth of Pennsylvania, and each has the
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and each of the Guarantor's
principal wholly owned banking subsidiaries, as described in the
prospectus, has been duly established and is validly existing as a national
banking association or a state bank, as the case may be, under the laws of
the jurisdiction of its formation.
(ii) The Guarantor has an authorized equity capitalization as set
forth in the Prospectus and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued, are fully
paid and non-assessable and are owned by the Guarantor, free and clear of
all liens, encumbrances, equities or claims.
(iii) The Guarantor has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties, or conducts
any business, so as to require such qualification, or is subject to no
material liability or disability by reason of failure to be so qualified in
any such jurisdiction.
(iv) All of the issued and outstanding capital stock of each
subsidiary of the Guarantor has been duly authorized and validly issued, is
fully paid and non-assessable (except, in the case of each of its national
bank subsidiaries, as provided in 12 U.S.C. Section 55, as amended), and,
except for directors' qualifying shares, is owned by the Guarantor, free
and clear of any mortgage, pledge, lien, encumbrance, claim or equity.
(v) To the best of such counsel's knowledge there are no legal or
governmental proceedings pending to which the Company, the Guarantor or
any of its subsidiaries is a party
or of which any property of the Company, the Guarantor or any of its
subsidiaries is the subject, other than as set forth in the Prospectus,
which, taking into account the likelihood of the outcome, the damages or
other relief sought and other relevant factors, would individually or in
the aggregate have a material adverse effect on the financial position,
shareholders' equity or results of operation of the Company or the
Guarantor and its subsidiaries on a consolidated basis; and to the best of
such counsel's knowledge no such proceedings are threatened or contemplated
by governmental authorities or threatened by others.
(vi) This Agreement has been duly authorized, executed and delivered
by the Company and by the Guarantor.
(vii) The Offered Securities have been duly authorized, executed,
authenticated, issued and delivered and constitute valid and legally
binding obligations of the Company entitled to the benefits provided by the
Indenture; and the Offered Securities, the Offered Guarantees and the
Indenture conform to the descriptions thereof in the Prospectus.
(viii) The Offered Guarantees have been duly authorized, endorsed on
the Offered Securities and executed, and, upon due execution,
authentication and delivery of the Offered Securities pursuant to this
Agreement, the Offered Guarantees will have been duly delivered and will
constitute valid and legally binding obligations of the Guarantor entitled
to the benefits provided by the Indenture.
(ix) The Indenture has been duly authorized, executed and delivered
by the Guarantor and the Company and constitutes a valid and legally
binding instrument, enforceable against the Company and the Guarantor in
accordance with its terms, subject, as to enforcement, to bankruptcy,
moratorium, insolvency, fraudulent transfer, reorganization and other laws
of general applicability relating to or affecting creditors' rights and to
general equity principles; the Indenture has been duly qualified under the
Trust Indenture Act of 1939 (the "Trust Indenture Act"), and all taxes and
fees required to be paid with respect to the execution of the Indenture and
the issuance of the Offered Securities and the Offered Guarantees have been
paid.
(x) The issue and sale of the Offered Securities and the compliance
by the Company and the Guarantor with all of the provisions of the Offered
Securities, the Offered Guarantees, the Indenture and this Agreement and
the
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consummation of the transactions herein contemplated will not conflict with
or result in a breach of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge
or encumbrance upon any of the property or assets of the Company, the
Guarantor or any of its subsidiaries pursuant to the terms of, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company, the Guarantor or any
of its subsidiaries is a party or by which the Company, the Guarantor or
any of its subsidiaries is bound or to which any of the property or assets
of the Company, the Guarantor or any of its subsidiaries is subject, nor
will such action result in any violation of the provisions of the Articles
of Incorporation, as amended, or the By-Laws of the Company or of the
Guarantor, or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company, the
Guarantor or any of its subsidiaries or any of their properties; and no
consent, approval, authorization, order, registration or qualification of
or with any court or any such regulatory authority or other governmental
body is required for the issue and sale of the Offered Securities, the
execution and delivery of the Offered Guarantees or the consummation of the
other transactions contemplated by this Agreement, the Offered Guarantees
or the Indenture, except such as have been obtained under the Securities
Act of 1933 (the "Securities Act") and the Trust Indenture Act and the
exemption of the Company from the provisions of the Investment Company Act
of 1940, as amended, and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or Blue Sky laws in connection with the sale and distribution of the
Offered Securities and the Offered Guarantees.
(xi) The documents incorporated by reference in the Prospectus
(other than the financial statements and related schedules and statistical
information contained or required to be contained therein, as to which such
counsel need express no opinion), when they were filed with the Commission,
complied as to form in all material respects with the requirements of the
Securities Exchange Act of 1934 (the "Exchange Act") and the rules and
regulations of the Commission thereunder; and such counsel has no reason to
believe that any of such documents, when they were so filed, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so filed,
not misleading, in each case after excluding any statement in any such
document which does not constitute part of the
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Registration Statement or the Prospectus pursuant to Rule 412 of
Regulation C under the Securities Act.
(xii) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company or the Guarantor
prior to the Closing Date (other than the financial statements and related
schedules and statistical information contained or required to be contained
therein, as to which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations thereunder; such
counsel has no reason to believe that either the Registration Statement, as
of its effective date and as of the Closing Date, or the Prospectus or any
further amendment or supplement thereto made by the Company or the
Guarantor prior to the Closing Date, as of the date of the most recent
amendment or supplement thereto and as of the Closing Date, contains an
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; and such counsel does not know of any contracts or other
documents of a character required to be filed as exhibits to the
Registration Statement or required to be incorporated by reference into the
Prospectus or required to be described in the Registration Statement or the
Prospectus which are not filed or incorporated by reference or described as
required.
(xiii) The Company is exempt from the registration and other
provisions of the Investment Company Act of 1940, as amended.
In rendering such opinion, such counsel may rely as to matters of fact
upon certificates of officers of the Guarantor and its subsidiaries, provided
that such counsel shall state that he believes he is justified in relying upon
such certificates.
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Exhibit B
Pursuant to Article V, paragraph (d) of the Mellon Financial Company
Underwriting Agreement Standard Provisions (Debt) (the "Standard Provisions"),
KPMG Peat Marwick LLP shall furnish letters to the Underwriters to the effect
that:
(i) They are independent certified public accountants with respect
to the Guarantor and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules audited by them and included or
incorporated by reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the
published rules and regulations thereunder; and, if applicable, they have
made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the consolidated interim
financial statements, selected financial data and/or condensed financial
statements derived from audited financial statements of the Guarantor for
the periods specified in such letter, as indicated in their reports
thereon, copies of which have been furnished to the representatives of the
Underwriters (the "Representatives");
(iii) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Guarantor for the five most recent fiscal years included in the Prospectus
and included or incorporated by reference in Item 6 of the Guarantor's
Annual Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for such fiscal years which were included
or incorporated by reference in the Guarantor's Annual Reports on Form 10-K
for such five fiscal years;
(iv) On the basis of limited procedures, not constituting an audit in
accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim financial
statements of the Guarantor and its subsidiaries, inspection of the minute
books of the Guarantor and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Guarantor and its subsidiaries
responsible for financial and accounting matters and such other inquiries
and procedures as may be specified in such
letter, nothing came to their attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of changes in
financial position included or incorporated by reference in the
Guarantor's Quarterly Reports on Form 10-Q incorporated by reference
in the Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Exchange Act as it
applies to Form 10-Q and the related published rules and regulations
thereunder or are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with the basis
for the audited consolidated statements of income, consolidated
balance sheets and consolidated statements of changes in financial
position included or incorporated by reference in the Guarantor's
Annual Report on Form 10-K for the most recent fiscal year;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the
Guarantor's Annual Report on Form 10-K for the most recent fiscal
year;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited condensed
financial statements referred to in Clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in Clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Guarantor's Annual Report on Form 10-K for the most recent fiscal
year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments
-2-
have not been properly applied to the historical amounts in the
compilation of those statements;
(E) as of a specified date not more than five days prior to the
date of delivery of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
pursuant to employee stock plans, upon earn-outs of performance shares
and upon conversions of convertible securities, in each case which
were outstanding on the date of the latest balance sheet included or
incorporated by reference in the Prospectus) or any increase in the
consolidated long-term debt of the Guarantor and its subsidiaries, or
any decreases in the consolidated amount of shareholders' equity or
reserve for credit losses or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in the
latest balance sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or decreases
which the Prospectus discloses have occurred or may occur or which are
described in such letter; and
(E) for the period from the date of the latest complete financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (E) there were any decreases
in consolidated net interest revenue, net interest revenue after the
provision for credit losses, net income applicable to common stock or
net income per common share or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period
of the preceding year and with any other period of corresponding
length specified by the Representatives, except in each case for
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(v) In addition to the audit referred to in their report(s) included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
subparagraphs (iii) and (iv) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and
financial information specified by the Representatives which are derived
from the general accounting records of the Guarantor and its subsidiaries,
which appear in the Prospectus
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(excluding documents incorporated by reference) or in Part II of, or in
exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the Prospectus
specified by the Representatives, and have compared certain such amounts,
percentages and financial information with the accounting records of the
Guarantor and its subsidiaries and have found them to be in agreement.
All references in this Exhibit B to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein), as defined in the Standard Provisions as of the date of the letter
delivered on the date of the Underwriting Agreement for purposes of such letter
and to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Offered
Securities and Offered Guarantees for purposes of the letter delivered at the
Time of Delivery for such Offered Securities and Offered Guarantees.
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