<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (date of earliest event reported) - November 9, 1998
MELLON BANK CORPORATION
(Exact name of registrant as specified in charter)
Pennsylvania 1-7410 25-1233834
(State or other jurisdiction of (Commission File Number) (IRS Employer
incorporation) Identification No.)
One Mellon Bank Center
500 Grant Street
Pittsburgh, Pennsylvania 15258-0001
(Address of principal
executive offices) (Zip code)
Registrant's telephone number, including area code - (412) 234-5000
Not applicable
(Former name or former address, if changed since last report)
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
The following exhibits are filed herewith and incorporated by reference into
Registration Statement No. 33-62151 pertaining to certain debt securities of
Mellon Financial Company and the related guarantees of the Registrant.
Exhibit Description
Number
1.5 Underwriting Agreement dated as of November 9, 1998, between Mellon
Financial Company (the "Company"), Mellon Bank Corporation (the
"Corporation") and Credit Suisse First Boston Corporation; Bear Stearns &
Co., Inc.; Chase Securities, Inc.; J. P. Morgan Securities Inc. and
Lehman Brothers Inc., as Underwriters, relating to the issuance and sale
of $300,000,000 aggregate principal amount of the Company's 5 3/4% Senior
Notes due November 15, 2003 and the related guarantees of the
Corporation, together with the Mellon Financial Company Underwriting
Agreement Standard provisions (Debt) dated February 9, 1998.
4.7 Form of 5 3/4% Senior Notes Due November 15, 2003.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registration has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
MELLON BANK CORPORATION
Date: November 13, 1998 By: /s/ STEVEN G. ELLIOTT
Steven G. Elliott
Vice Chairman & Chief Financial
Officer
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EXHIBIT INDEX
Number Description Method of Filing
1.5 Underwriting Agreement dated as of November 9, 1998 Filed herewith
4.7 Form of 5 3/4% Senior Notes due November 15, 2003 Filed herewith
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EXHIBIT 1.5
UNDERWRITING AGREEMENT
November 9, 1998
Mellon Financial Company
Mellon Bank Corporation,
One Mellon Bank Center,
Pittsburgh, Pennsylvania 15258.
Ladies and Gentlemen:
Credit Suisse First Boston Corporation, Bear, Stearns & Co. Inc.,
Chase Securities Inc., J.P. Morgan Securities Inc. and Lehman Brothers Inc., as
Underwriters (the "Underwriters"), understand that Mellon Financial Company, a
Pennsylvania corporation (the "Company"), proposes to issue and sell
$300,000,000 aggregate principal amount of 5 3/4% Senior Notes due November 15,
2003 (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 Underwriters
agree to purchase, severally and not jointly, the principal amounts of such
Offered Securities set forth opposite their names on Schedule A hereto at
99.215% of their principal amount, yielding total proceeds at closing of
$297,645,000. The Underwriters will reimburse the Company at closing for
certain expenses incurred in connection with the issuance and sale of the
Offered Securities in the amount of $450,000.
The Underwriters will pay for such Offered Securities in immediately
available funds upon delivery thereof at the offices of Sullivan & Cromwell, 125
Broad Street, New York, New York 10004, at 10:00 a.m. (local time) on November
13, 1998, or at such other time, not later than November 13, 1998, as shall be
designated by the Underwriters.
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The Offered Securities shall have the terms set forth in the Company's
and the Guarantor's Prospectus Supplement, dated November 9, 1998, and the
Prospectus, dated September 6, 1995, particularly as follows:
Maturity: November 15, 2003
Interest Rate: 5 3/4% per annum
Redemption Provisions: None
Interest Payment Dates: May 15 and November 15, commencing May 15,
1999
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,
CREDIT SUISSE FIRST BOSTON CORPORATION
BEAR, STEARNS & CO. INC.
CHASE SECURITIES INC.
J.P. MORGAN SECURITIES INC.
LEHMAN BROTHERS INC.
By: CREDIT SUISSE FIRST BOSTON
CORPORATION
By: /s/ Jack D. McSkadden, Jr.
-------------------------------
Name: Jack D. McSkadden, Jr.
Title: Managing Director -
Senior Advisor
Accepted: November 9, 1998
MELLON FINANCIAL COMPANY
By: /s/ Steven G. Elliott
-----------------------------
Name: Steven G. Elliott
Title: President & Chief Executive
Officer
MELLON BANK CORPORATION
By: /s/ Steven G. Elliott
-----------------------------
Name: Steven G. Elliott
Title: Vice Chairman & Chief Financial
Officer
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SCHEDULE A
<TABLE>
<CAPTION>
Principal Amount
Underwriter of Securities
----------- ----------------
<S> <C>
Credit Suisse First Boston Corporation....... $180,000,000
Bear, Stearns & Co. Inc...................... 30,000,000
Chase Securities Inc......................... 30,000,000
J.P. Morgan Securities Inc................... 30,000,000
Lehman Brothers Inc.......................... 30,000,000
------------
Total.............................. $300,000,000
============
</TABLE>
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MELLON 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
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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
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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 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
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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.
(c) The Manager shall have received on the Closing Date an opinion of
Sullivan & Cromwell, 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.
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(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 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
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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
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
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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 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.
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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 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,
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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 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
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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.
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
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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 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
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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.
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 counter parts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
-12-
<PAGE>
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
-13-
<PAGE>
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.
<PAGE>
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.
-2-
<PAGE>
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.........................
-3-
<PAGE>
PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name, telephone number and department of the rep resentative 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
---- --------------------- ----------
...................... ........................... .....................
...................... ........................... .....................
...................... ........................... .....................
...................... ........................... .....................
...................... ........................... .....................
...................... ........................... .....................
-4-
<PAGE>
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.
<PAGE>
(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
-2-
<PAGE>
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 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
-3-
<PAGE>
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
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.
-4-
<PAGE>
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,
<PAGE>
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;
-2-
<PAGE>
(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 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
-3-
<PAGE>
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 (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.
-4-
<PAGE>
EXHIBIT 4.7
SPECIMEN
[FACE OF SECURITY]
If this Security is a Global Security (as indicated below), the
following legend is applicable:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES OF
THIS SERIES IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS
A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF SUCH A TRANSFEROR TO THE ISSUER OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF SUCH A TRANSFEREE OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF SUCH A TRANSFEROR AND ANY PAYMENT IS MADE TO SUCH A
TRANSFEREE, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, SUCH A
TRANSFEROR, HAS AN INTEREST HEREIN.
REGISTERED REGISTERED
No. - - $000,000,000
CUSIP: 585510 CH 1 [x] GLOBAL SECURITY
MELLON FINANCIAL COMPANY
5 3/4% SENIOR NOTES DUE NOVEMBER 15, 2003
MELLON FINANCIAL COMPANY, a corporation duly organized and existing
under the laws of the Commonwealth of Pennsylvania (herein called the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of [ ] ($000,000,000) Dollars on
November 15, 2003 and to pay interest thereon from November 13, 1998 or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on May 15 and November 15 in each year, commencing
May 15, 1999, at the rate of 5 3/4% per annum, until the principal hereof is
paid or made available for payment, and (to the extent that the payment of such
interest shall be legally enforceable) at the rate of 5 3/4% per annum on any
overdue principal and premium and on any overdue installment of interest. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the May 1 or November 1 (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is
<PAGE>
SPECIMEN
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
If this Security is a Global Security (as specified on the face
hereof), this Security is exchangeable in whole for definitive Securities of
this series in registered form ("Registered Securities") of like tenor and of an
equal aggregate principal amount only if (i) the Depositary notifies the Company
that it is unwilling or unable to continue as Depositary for this Global
Security or if at any time the Depositary ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, (ii) the
Company executes and delivers to the Trustee a Company Order providing that this
Global Security shall be exchangeable for definitive Registered Securities or
(iii) any event shall have happened and be continuing which, after notice or
lapse of time, or both, would become an Event of Default with respect to the
Securities of the series of which this Global Security is a part. In the event
this Global Security is exchangeable pursuant to the preceding sentence, it
shall be exchanged in whole for definitive Registered Securities of this series,
of like tenor and of an equal aggregate principal amount in denominations of
U.S. $1,000 and integral multiples thereof; provided that, in the case of
--------
clauses (ii) and (iii) above, definitive Registered Securities of this series
will be issued in exchange for this Global Security only if such definitive
Registered Securities were requested by written notice to the Security Registrar
by or on behalf of a Person who is a beneficial owner of an interest herein
given through the Holder hereof. Any definitive Registered Securities of this
series issued in exchange for this Global Security shall be registered in the
name or names of such Person or Persons as the Holder hereof shall instruct the
Security Registrar. Except as provided above, owners of beneficial interests in
this Global Security will not be entitled to receive physical delivery of
Securities in definitive form and will not be considered the Holders thereof for
any purpose under the Indenture.
If this Security is a Global Security, except as provided in the next
paragraph, no beneficial owner of any portion of this Global Security shall be
entitled to receive payment of accrued interest hereon until this Global
Security has been exchanged for one or more definitive Registered Securities of
this series, as provided herein and in the Indenture.
-2-
<PAGE>
SPECIMEN
If this Security is a Global Security and if a definitive Registered
Security or Registered Securities of this series are issued in exchange for this
Global Security after the close of business at the office or agency where such
exchange occurs on (i) any Regular Record Date and before the opening of
business at such office or agency on the related Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest or
interest on Defaulted Interest, as the case may be, accrued interest will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of such Registered Security, but will be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to
the Holder hereof, and the Holder hereof will undertake in such circumstances to
credit such interest to the account or accounts of the Persons who were the
beneficial owners of any portion of this Global Security on such Regular Record
Date or Special Record Date, as the case may be.
If this Security is a Global Security, payment of the principal of and
any premium or interest hereon will be made on each Interest Payment Date and at
the Maturity Date, as the case may be, by the Trustee by wire transfer of
immediately available funds, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts, to an account of the registered Holder hereof at the Federal
Reserve Bank of New York, provided, that, payment at the Maturity Date hereof
--------
shall be made against presentation of this Security at the office of the
Trustee, currently located at 450 W. 33/rd/ Street, 15/th /floor, New York, New
York 10001. If this Security is not a Global Security, (i) the principal of and
any interest and premium hereon payable at the Maturity Date hereof will be paid
in immediately available funds, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts, against presentation of this Security at the aforementioned
office of the Trustee, and (ii) all interest payments hereon other than interest
due at the Maturity Date hereof will be made by check drawn on the Trustee and
mailed by the Trustee to the person entitled thereto as provided herein,
provided, that Holders of $10,000,000 or more in aggregate principal amount of
- --------
Securities of this series shall be entitled to receive such payments by wire
transfer of immediately available funds if appropriate wire transfer
instructions have been received in writing by the Trustee not less than 16 days
prior to the applicable Interest Payment Date.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
-3-
<PAGE>
SPECIMEN
This Security is not a deposit and is not insured by any federal
agency.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, or by an Authenticating Agent, by
manual signature, neither this Security nor the Guarantee endorsed hereon shall
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
-4-
<PAGE>
SPECIMEN
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, by its duly authorized officer under its
corporate seal.
MELLON FINANCIAL COMPANY
By:_________________________
Name: Steven G. Elliott
Title: President & Chief
Executive Officer
Attest:
_____________________________
Secretary
Dated: November 13, 1998
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the
series designated herein referred to
in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By:_________________________
Authorized Officer
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SPECIMEN
[REVERSE OF SECURITY]
MELLON FINANCIAL COMPANY
5 3/4% SENIOR NOTES DUE NOVEMBER 15, 2003
This Security is one of a duly authorized series of Securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of May 2, 1988, as supplemented by the First
Supplemental Indenture, dated as of November 29, 1990 (together herein called
the "Indenture"), each among the Company, the Guarantor and The Chase Manhattan
Bank, as Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights, limi
tations of rights, duties and immunities thereunder of the Company, the
Guarantor, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. The
Securities may be issued in different series, as in the Indenture provided.
This Security is one of the series designated on the face hereof, issued under
and entitled to the benefits of the Indenture and limited (except as otherwise
provided in the Indenture) to an aggregate principal amount of $300,000,000.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal and overdue interest (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and interest on the Securities of this series shall terminate.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the Guarantor and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company, the
Guarantor and the Trustee with the consent of the Holders of not less than 66
2/3% in aggregate principal amount of the Securities at the time Outstanding of
each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of all Securities
of such series, to waive compliance by the Company or the Guarantor with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
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The Guarantor, or a Subsidiary thereof, may directly assume, by a
supplemental indenture, the due and punctual payment of the principal of (and
premium, if any) and interest on all the Securities, in which case the Company
shall be released from its liability as obligor on the Securities.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and sub ject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Guarantor, the Trustee and any agent of the Company,
the Guarantor or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Guarantor, the Trustee nor any such agent
shall be affected by notice to the contrary.
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SPECIMEN
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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SPECIMEN
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM--as tenants in common
TEN ENT--as tenants by the entireties
JT TEN-- as joint tenants with right of survivor-ship and
not as tenants in common
UNIF GIFT MIN ACT--...........Custodian...........
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
Additional abbreviations may also be used though not in the above list.
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SPECIMEN
_____________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please Insert Social Security or Other
Identifying Number of Assignee:
___________________________________________________________________
___________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS
INCLUDING ZIP CODE OF ASSIGNEE:
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing _______________________________________
___________________________________________ attorney to transfer said Security
on the Security Register of the Company, with full power of substitution in the
premises.
Dated: ___________________ ____________________________________
NOTICE: The signature to this assignment
must correspond with the name as written upon the
face of this Security in every particular, without
alteration or enlargement or any change
whatever.
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SPECIMEN
GUARANTEE
OF
MELLON BANK CORPORATION
For value received, Mellon Bank Corporation, a corporation duly
organized and existing under the laws of the Commonwealth of Pennsylvania
(herein called the "Guarantor"), hereby unconditionally guarantees to the Holder
of the Security upon which this Guarantee is endorsed the due and punctual
payment of the principal of (and premium, if any) and interest on said Security,
when and as the same shall become due and payable, whether at maturity, by
acceleration or redemption or otherwise, according to the terms thereof and of
the Indenture referred to therein. In case of the failure of Mellon Financial
Company or any successor thereto (the "Company") punctually to pay any such
principal, premium or interest, the Guarantor hereby agrees to cause any such
payment to be made punctually when and as the same shall become due and payable,
whether at maturity, upon accelera tion or redemption or otherwise, and as if
such payment were made by the Company.
The Guarantor hereby agrees that its obligations here under shall be
as principal and not merely as surety, and shall be absolute and unconditional,
irrespective of, and shall be unaffected by, any invalidity, irregularity or
unenforceability of said Security or said Indenture, any failure to enforce the
provisions of said Security or said Indenture, or any waiver, modification,
consent or indulgence granted to the Company with respect thereto, by the Holder
of said Security or the Trustee under said Indenture, the recovery of any
judgment against the Company or any action to enforce the same, or any other
circum stances which may otherwise constitute a legal or equitable discharge of
a surety or guarantor. The Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of merger,
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest or notice with respect to said Security or the
indebtedness evidenced thereby and all demands whatsoever, and covenants that
this Guarantee will not be discharged except by payment in full of the principal
of (and premium, if any) or interest on said Security and the complete
performance of all other obligations contained in said Security.
The Guarantor shall be subrogated to all rights of the Holder of said
Security against the Company in respect of any amounts paid to such Holder by
the Guarantor pursuant to the provisions of this Guarantee; provided, however,
-------- -------
that the Guarantor shall not be entitled to enforce, or to receive any payments
arising out of or based upon, such right of subrogation until the
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SPECIMEN
principal of (and premium, if any) and interest on all Securities issued under
said Indenture shall have been paid in full.
Subject to the next following paragraph, the Guarantor hereby
certifies and warrants that all acts, conditions and things required to be done
and performed and to have happened precedent to the creation and issuance of
this Guarantee and to constitute the same the valid obligation of the Guarantor
have been done and performed and have happened in due compliance with all
applicable laws.
This Guarantee shall not be valid or become obligatory for any purpose
until the certificate of authentication on said Security shall have been signed
manually by or on behalf of the Trustee under said Indenture.
This Guarantee shall be deemed to be a contract made under the laws of
the Commonwealth of Pennsylvania, and for all purposes shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania,
except as otherwise required by mandatory provisions of law.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be duly
executed, manually or in facsimile, by its duly authorized officer under its
corporate seal.
Dated: November 13, 1998
MELLON BANK CORPORATION
By:______________________________
Vice Chairman and
Chief Financial Officer
Attest:
_______________________________
Secretary
