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Exhibit 4.5
MELLON FUNDING CORPORATION, Issuer
AND
MELLON FINANCIAL CORPORATION, Guarantor
TO
THE CHASE MANHATTAN BANK, Trustee
SECOND SUPPLEMENTAL INDENTURE
Dated as of June 12, 2000
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Second supplemental indenture, dated as of June 12, 2000 among
Mellon Funding Corporation (formerly Mellon Financial Company), a corporation
duly organized and existing under the laws of the Commonwealth of Pennsylvania
having its principal office at One Mellon Center, 000 Xxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000 (herein called the "Company"), Mellon Financial Corporation
(formerly Mellon Bank Corporation), a corporation duly organized and existing
under the laws of the Commonwealth of Pennsylvania having its principal office
at One Mellon Center, 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000 (herein
called the "Guarantor"), and The Chase Manhattan Bank, a New York banking
corporation duly organized and existing under the laws of the State of New York
having its principal executive office at 000 X. 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, as Trustee (herein called the "Trustee").
RECITALS
The Company and the Guarantor have heretofore executed and
delivered to the Trustee a certain indenture, dated as of May 2, 1988 (herein
called the "Indenture"), and the First Supplemental Indenture, dated as of
November 29, 1990 (herein called the "First Supplemental Indenture"), pursuant
to which one or more series of unsecured debentures, notes or other evidences of
indebtedness of the Company guaranteed by the Guarantor (herein called the
"Securities") may be issued from time to time by the Company. All capitalized
terms used in this Second Supplemental Indenture which are defined in the
Indenture or the First Supplemental Indenture shall have the meanings assigned
to them in the Indenture or the First Supplemental Indenture, as applicable.
The Company and the Guarantor desire and have requested the
Trustee to join with them in the execution and delivery of this Second
Supplemental Indenture for the purpose of amending the Indenture in certain
respects with respect to the Securities of any series created on or after the
date hereof and in order to permit the Company to elect that the Securities of
any such series, in whole or in any specified part, shall be defeasible.
Section 1001(8) of the Indenture provides that a Supplemental
Indenture may be entered into by the Company, the Guarantor and the Trustee
without the consent of any Holders to make provisions with respect to matters
arising under the Indenture which do not adversely affect the interests of the
Holders of Securities of any series in any material respect.
The Company has furnished the Trustee with (i) an Opinion of
Counsel stating that the execution of the Second Supplemental Indenture is
authorized or permitted by the Indenture, (ii) an Officer's Certificate and an
Opinion of Counsel each stating that all conditions precedent provided for in
the Indenture with respect to this Second Supplemental Indenture have been
complied with, and (iii) a copy of the resolutions of its Board of Directors
certified by its Secretary pursuant to which this Second Supplemental Indenture
has been authorized.
All things necessary to make this Second Supplemental
Indenture a valid agreement of the Company, the Guarantor and the Trustee and a
valid amendment of and supplement to the Indenture have been done.
NOW THEREFORE THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
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ARTICLE ONE
AMENDMENTS TO THE INDENTURE
SECTION 1.1. Section 101 of the Indenture is amended to
include therein the following provisions:
(a) After the definition of corporation:
"'Covenant Defeasance' has the meaning specified in
Section 1403."
(b) After the definition of Defaulted Interest:
"'Defeasance' has the meaning specified in Section
1402."
(c) After the definition of Trust Indenture Act:
"U.S. Government Obligation" has the meaning
specified in Section 1404."
(d) The definition of Outstanding is amended by adding
the following immediately after subpart (iii):
"(iv) Securities as to which Defeasance has been
effected pursuant to Section 1402;"
SECTION 1.2. Section 301 of the Indenture is amended by:
(a) Section 301(17) is renumbered Section 301(18).
(b) A new Section 301(17) is added to read in its
entirety as follows:
"(17) if applicable, that the Securities of the
series, in whole or any specified part, shall be
defeasible pursuant to Section 1402 or Section 1403
or both such Sections, any provisions to permit a
pledge of obligations other than U.S. Government
Obligations (or the establishment of other
arrangements) to satisfy the requirements of Section
1404(1) for defeasance of such Securities and, if
other than by a Board Resolution, the manner in which
any elections by the Company to defease such
Securities shall be evidenced;"
SECTION 1.3. The following Article Fourteen is added
immediately following the last paragraph of Section 1303:
"ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. COMPANY'S OPTION TO EFFECT DEFEASANCE
OR COVENANT DEFEASANCE.
The Company may elect, at its option at any time, to
have Section 1402 or Section 1403 applied to any Securities or
any series of Securities, as the case may be, designated
pursuant to Section 301 as being
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defeasible pursuant to such Section 1402 or 1403, in
accordance with any applicable requirements provided pursuant
to Section 301 and upon compliance with the conditions set
forth below in this Article. Any such election shall be
evidenced by a Board Resolution or in another manner specified
as contemplated by Section 301 for such Securities.
SECTION 1402. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of its option (if any) to
have this Section applied to any Securities or any series of
Securities, as the case may be, each of the Company and the
Guarantor shall be deemed to have been discharged from its
respective obligations with respect to such Securities as
provided in this Section on and after the date the conditions
set forth in Section 1404 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that
the Company shall be deemed to have paid and discharged the
entire indebtedness represented by such Securities and that
each of the Company and the Guarantor shall be deemed to have
satisfied all its obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following
which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1404
and as more fully set forth in such Section, payments in
respect of the principal of and any premium and interest on
such Securities when payments are due, (2) the Company's
obligations with respect to such Securities under Sections
304, 305, 306, 707, 1102 and 1103, (3) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (4)
this Article. Subject to compliance with this Article, the
Company may exercise its option (if any) to have this Section
applied to any Securities notwithstanding the prior exercise
of its option (if any) to have Section 1403 applied to such
Securities.
SECTION 1403. COVENANT DEFEASANCE.
Upon the Company's exercise of its option (if any) to
have this Section applied to any Securities or any series of
Securities, as the case may be, (1) each of the Company and
the Guarantor shall be released from its respective
obligations under Sections 1105 through 1108, inclusive, and
any covenants provided pursuant to Section 301(12), 1001(2) or
1001(6) for the benefit of the Holders of such Securities and
(2) the occurrence of any event specified in Sections 601(4)
(with respect to any of Sections 1105 through 1108, inclusive,
and any such covenants provided pursuant to Section 301(12),
1001(2) or 1001(6)) and 601(7) shall be deemed not to be or
result in an Event of Default, in each case with respect to
such Securities as provided in this Section on and after the
date the conditions set forth in Section 1404 are satisfied
(hereinafter called "Covenant Defeasance"). For this purpose,
such Covenant Defeasance means that, with respect to such
Securities, each of the Company and the Guarantor may omit to
comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such specified
Section (to the extent so specified in the case of Section
601(4)), whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of
any reference in any
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such Section to any other provision herein or in any other
document, but the remainder of this Indenture and such
Securities shall be unaffected thereby.
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT
DEFEASANCE.
The following shall be the conditions to the
application of Section 1402 or Section 1403 to any Securities
or any series of Securities, as the case may be:
(1) The Company shall irrevocably have
deposited or caused to be deposited with the Trustee
(or another trustee which satisfies the requirements
contemplated by Section 709 and agrees to comply with
the provisions of this Article applicable to it) as
trust funds in trust for the purpose of making the
following payments, specifically pledged as security
for, and dedicated solely to, the benefits of the
Holders of such Securities, (A) money in an amount,
or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in
respect thereof in accordance with their terms will
provide, not later than one day before the due date
of any payment, money in an amount, or (C) such other
obligations or arrangements as may be specified as
contemplated by Section 301 with respect to such
Securities, or (D) a combination thereof, in each
case sufficient, in the opinion of a nationally
recognized firm of independent public accountants
expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or any such
other qualifying trustee) to pay and discharge, the
principal of and any premium and interest on such
Securities on the respective Stated Maturities, in
accordance with the terms of this Indenture and such
Securities. In the event such firm requires the
Trustee to agree to the procedures performed by such
firm, the Company shall direct the Trustee in writing
to so agree; it being understood and agreed that the
Trustee will deliver such letter of agreement in
conclusive reliance upon the direction of the
Company, and the Trustee makes no independent inquiry
or investigation as to, and shall have no obligation
or liability in respect of, the sufficiency, validity
or correctness of such procedures. As used herein,
"U.S. Government Obligation" means (x) any security
which is (i) a direct obligation of the United States
of America for the payment of which the full faith
and credit of the United States of America is pledged
or (ii) an obligation of a Person controlled or
supervised by and acting as an agency or
instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States
of America, which, in either case (i) or (ii), is not
callable or redeemable at the option of the issuer
thereof, and (y) any depositary receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities
Act of 1933, as amended) as custodian with respect to
any U.S. Government Obligation which is specified in
Clause (x) above and held by such bank for the
account of the holder of such depositary receipt, or
with respect to any specific payment of principal of
or interest on any
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U.S. Government Obligation which is so specified and
held, PROVIDED that (except as required by law) such
custodian is not authorized to make any deduction
from the amount payable to the holder of such
depository receipt from any amount received by the
custodian in respect of the U.S. Government
Obligation or the specific payment of principal or
interest evidenced by such depositary receipt.
(2) In the event of any election to have
Section 1402 apply to any Securities or any series of
Securities, as the case may be, the Company shall
have delivered to the Trustee an Opinion of Counsel
stating that (A) (x) the Company has received from,
or there has been published by, the Internal Revenue
Service a ruling or (y) since the date of this
instrument, there has been a change in the applicable
Federal income tax law, in either case (x) or (y) to
the effect that, and based thereon such opinion shall
confirm that, the Holders of such Securities will not
recognize gain or loss for Federal income tax
purposes as a result of the deposit, Defeasance and
discharge to be effected with respect to such
Securities and will be subject to Federal income tax
on the same amount, in the same manner and at the
same times as would be the case if such deposit,
Defeasance and discharge were not to occur and (B) if
Securities of such series are then listed on the New
York Stock Exchange, to the effect that the
Securities of such series will not be delisted as a
result of such election.
(3) In the event of any election to have
Section 1403 apply to any Securities or any series of
Securities, as the case may be, the Company shall
have delivered to the Trustee an Opinion of Counsel
to the effect that the Holders of such Securities
will not recognize gain or loss for Federal income
tax purposes as a result of the deposit and Covenant
Defeasance to be effected with respect to such
Securities and will be subject to Federal income tax
on the same amount, in the same manner and at the
same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the
Trustee an Officers' Certificate to the effect that
neither such Securities nor any other Securities of
the same series, if then listed on any securities
exchange, will be delisted as a result of such
deposit.
(5) No event which is, or after notice or
lapse of time or both would become, an Event of
Default with respect to such Securities or any other
Securities shall have occurred and be continuing at
the time of such deposit or, with regard to any such
event specified in Sections 601(5) and (6), at any
time on or prior to the 90th day after the date of
such deposit (it being understood that this condition
shall not be deemed satisfied until after such 90th
day).
(6) Such Defeasance or Covenant Defeasance
shall not cause the Trustee to have a conflicting
interest within the meaning
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of the Trust Indenture Act (assuming all Securities
are in default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance
shall not result in a breach or violation of, or
constitute a default under, any other agreement or
instrument to which the Company is a party or by
which it is bound.
(8) Such Defeasance or Covenant Defeasance
shall not result in the trust arising from such
deposit constituting an investment company within the
meaning of the Investment Company Act of 1940, as
amended, unless such trust shall be registered under
such Act or exempt from registration thereunder.
(9) The Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent
with respect to such Defeasance or Covenant
Defeasance have been complied with.
SECTION 1405. DEPOSITED MONEY AND U.S. GOVERNMENT
OBLIGATIONS TO BE HELD IN TRUST; MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of
Section 1103, all money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee or
other qualifying trustee (solely for purposes of this Section
and Section 1406, the Trustee and any such other trustee are
referred to collectively as the "Trustee") pursuant to Section
1404 in respect of any Securities shall be held in trust and
applied by the Trustee, in accordance with the provisions of
such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due
and to become due thereon in respect of principal and any
premium and interest, but money so held in trust need not be
segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed
against the U.S. Government Obligations deposited pursuant to
Section 1404 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by
law is for the account of the Holders of Outstanding
Securities.
Anything in this Article to the contrary
notwithstanding, the Trustee shall deliver or pay to the
Company from time to time upon Company Request any money or
U.S. Government Obligations held by it as provided in Section
1404 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance or
Covenant Defeasance, as the case may be, with respect to such
Securities.
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SECTION 1406. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply
any money in accordance with this Article with respect to any
Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise
prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been
discharged or released pursuant to Section 1402 or 1403 shall
be revived and reinstated as though no deposit had occurred
pursuant to this Article with respect to such Securities,
until such time as the Trustee or Paying Agent is permitted to
apply all money held in trust pursuant to Section 1405 with
respect to such Securities in accordance with this Article;
PROVIDED, HOWEVER, that if the Company makes any payment of
principal of or any premium or interest on any such Security
following such reinstatement of its obligations, the Company
shall be subrogated to the rights (if any) of the Holders of
such Securities to receive such payment from the money so held
in trust."
ARTICLE II
MISCELLANEOUS
Section 2.1. All the provisions of this Second Supplemental
Indenture shall be deemed to be incorporated in, and made a part of, the
Indenture; and the Indenture, as supplemented and amended by this Second
Supplemental Indenture, shall be read, taken and construed as one and the same
instrument.
Section 2.2. The provisions and benefit of this Second
Supplemental Indenture shall not be effective with respect to Securities
outstanding prior to the date hereof.
Section 2.3. This Second 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.
Section 2.4. If any provision hereof limits, qualifies or
conflicts with another provision hereof which is required to be included in this
Second Supplemental Indenture by and of the provisions of the Trust Indenture
Act, such required provision shall control.
Section 2.5. All covenants and agreements in this Second
Supplemental Indenture by the Company and the Guarantor shall bind their
respective successors and assigns, whether so expressed or not.
Section 2.6. In case any provision in this Second Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 2.7. Nothing in this Second Supplemental Indenture,
express or implied, shall give to any person, other than the parties hereto and
their successors hereunder and the Holders, any benefit or legal or equitable
right, remedy or claim under this Second Supplemental Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
MELLON FUNDING CORPORATION,
Issuer
BY: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
Attest: /s/ XXXXXXX XXXXXXXXX
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Secretary
MELLON FINANCIAL CORPORATION,
Guarantor
BY: /s/ XXXXXX X. XxXXXXX
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Name: Xxxxxx X. XxXxxxx
Title: Chairman and Chief Executive Officer
Attest: /s/ XXXX XXXXXX
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Secretary
THE CHASE MANHATTAN BANK,
Trustee
BY: /s/ XXXXXX X. XXXXXXXX
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Name: Xxxxxx X. Xxxxxxxx
Title: Assistant Vice President
Attest:
/s/ XXXXXXX X. XXXXX
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COMMONWEALTH OF PENNSYLVANIA )
) ss.:
COUNTY OF ALLEGHENY )
On the 12th day of June, 2000, before me personally came
Xxxxxx X. Xxxxxxx, to me known, who, being by me duly sworn, did depose and say
that he is President & Chief Executive Officer of Mellon Funding Corporation,
one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation, and that he signed his name thereto
by like authority.
/s/ XXXX XXXX XXXXXXXX Notary Public
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/s/ XXXX XXXX XXXXXXXX Notary Public
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PITTSBURGH, ALLEGHENY COUNTY
MY COMMISSION EXPIRES Oct. 6, 2003
Member, Penn. Assoc. of Notaries
[Notarial Seal]
COMMONWEALTH OF PENNSYLVANIA )
) ss.:
COUNTY OF ALLEGHENY )
On the 12th day of June, 2000 before me personally came Xxxxxx
X. XxXxxxx, to me known, who, being by me duly sworn, did depose and say that he
is Chairman and Chief Executive Officer of Mellon Financial Corporation, one of
the corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
/s/ XXXX XXXX XXXXXXXX Notary Public
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/s/ XXXX XXXX XXXXXXXX Notary Public
----------------------
PITTSBURGH, ALLEGHENY COUNTY
MY COMMISSION EXPIRES Oct. 6, 2003
Member, Penn. Assoc. of Notaries
[Notarial Seal]
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 12th day of June 2000, before me personally came Xxxxxx
X. Xxxxxxxx, to me known, who, being by me duly sworn, did depose and say that
he is Assistant Vice President of THE CHASE MANHATTAN BANK, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
/s/ XXXXXXXXX XxXXXX Notary Public
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Notary Public, State of New York
No. 01DE5013759
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Qualified in Kings County
Certificate Filed in New York County
COMMISSION EXPIRES July 15, 2001
[Notarial Seal]
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