Exhibit 4.5


 


FIRST
AMENDED AND RESTATED


 


DECLARATION
OF TRUST


 


FIRST AMENDED AND RESTATED DECLARATION
OF TRUST (“Declaration”), dated as of June 4, 2009, among UnionBanCal
Corporation, a Delaware corporation, as sponsor (the “Sponsor”), BNY Mellon
Trust of Delaware, a Delaware banking corporation, as Delaware trustee (the “Delaware
Trustee”), and David I. Matson, David A. Anderson and Morris W. Hirsch, as regular
trustees (the “Regular Trustees” and, collectively with the Delaware Trustee,
the “Trustees”).


 


WHEREAS, the Sponsor and David
I. Matson, David A. Anderson and John H. McGuckin, as regular trustees, First
Chicago Delaware Inc., as Delaware trustee, and The First National Bank of
Chicago, as property trustee, established UnionBanCal Finance Trust III (the “Trust”)
as a Delaware statutory trust under Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. §§ 3801 et  seq. (the “Statutory
Trust Act”) pursuant to a Declaration of Trust dated as of November 17,
1998 (the “Original Declaration”) and a Certificate of Trust of the Trust filed
with the Office of the Secretary of State of the State of Delaware (the “State
Office”) on November 17, 1998, as corrected by the Corrected Certificate
of Trust filed with the State Office on January 7, 1999;


 


WHEREAS, John H. McGuckin
ceased to be a regular trustee of the Trust upon his death and the Sponsor
desires to appoint Morris W. Hirsch as a Regular Trustee of the Trust;


 


WHEREAS, Section 6 of
the Original Declaration provides in relevant part that the Sponsor is entitled
to remove without cause any trustee at any time, and the Sponsor desires to (i) remove
Bank One Delaware Inc., as successor by merger to First Chicago Delaware Inc.,
as Delaware trustee and appoint BNY Mellon Trust of Delaware as Delaware
Trustee and (ii) remove The First National Bank of Chicago as property trustee;
and


 


WHEREAS, all of the Trustees
and the Sponsor, by this Declaration, amend and restate each and every term and
provision of the Original Declaration.


 


The Sponsor and the Trustees
hereby agree as follows:


 


1.             The
Trust is continued hereby and shall continue to be known as “UnionBanCal
Finance Trust III”, in which name the Trustees, or the Sponsor to the extent
provided herein, may conduct the business of the Trust, make and execute contracts,
and sue and be sued.


 


2.             Pursuant
to the Original Declaration, the Sponsor has assigned, transferred, conveyed
and set over to the Trustees the sum of $10. 
The Trustees hereby acknowledge receipt of such amount in trust from the
Sponsor, which amount shall constitute the initial trust estate.  The Trustees hereby declare that they will
hold the trust estate for the Sponsor. 
It is the intention of the parties hereto that the Trust continued
hereby constitute a


 





















 


statutory trust under the Statutory Trust Act, and that this document
constitute the governing instrument of the Trust.  The Trustees, and each of them acting
individually, are hereby authorized and directed to execute and file an amended
and restated certificate of trust in the office of the Secretary of State of
the State of Delaware in accordance with the provisions of the Statutory Trust
Act to reflect the appointment of BNY Mellon Trust of Delaware as Delaware
Trustee.  The Trust is hereby continued
by the Sponsor and the Trustees for the purposes of (i) issuing preferred
securities (“Preferred Securities”) representing undivided beneficial interests
in the assets of the Trust in exchange for cash and investing the proceeds
thereof in debt securities of the Sponsor, (ii) issuing and selling common
securities (“Common Securities” and, together with the Preferred Securities, “Trust
Securities”) representing undivided beneficial interests in the assets of the
Trust to the Sponsor in exchange for cash and investing the proceeds thereof in
additional debt securities of the Sponsor and (iii) engaging in such other
activities as are necessary, convenient or incidental thereto.


 


3.             Concurrent
with the first issuance of any Trust Securities by the Trust, the Sponsor and
the Trustees intend to enter into a second amended and restated declaration of
trust, satisfactory to each such party and substantially in the form to be
included as an exhibit to the 1933 Act Registration Statement referred to below
at the time such registration statement becomes effective under the Securities
Act of 1933, as amended (the “Securities Act”), to provide for the contemplated
operation of the Trust continued hereby and the issuance of the Preferred
Securities and the Common Securities referred to therein.  Prior to the execution and delivery of such
amended and restated declaration of trust, the Trustees shall not have any duty
or obligation hereunder or with respect to the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain, prior to
such execution and delivery, any licenses, consents or approvals required by
applicable law or otherwise.


 


4.             The
Sponsor and the Trustees hereby authorize and direct the Sponsor, as the
sponsor of the Trust, as applicable, (i) to prepare and file with the
Securities and Exchange Commission (the “Commission”) and execute, in each case
on behalf of the Trust, (a) one or more Registration Statements on Form F-3
or other appropriate form (the “1933 Act Registration Statement”), including
any pre-effective or post-effective amendments to such 1933 Act Registration
Statement (including the prospectus and the exhibits contained therein),
relating to the registration of the Preferred Securities under the Securities
Act and (b) a Registration Statement on Form 8-A or other appropriate
form (the “1934 Act Registration Statement”) (including any pre-effective or
post-effective amendments thereto) relating to the registration of the
Preferred Securities under Section 12(b) or Section 12(g) of
the Securities Exchange Act of 1934, as amended, if a 1934 Act Registration
Statement is required by such Sections; (ii) if the Trust Securities will
be listed on a national securities exchange or an interdealer quotation system,
to prepare and file with such national securities exchange for listing, or
quotation on an interdealer quotation system, and execute a listing application
and all other applications, statements, certificates, agreements and other
instruments as shall be necessary or desirable to cause the Preferred Securities
to be listed on such national securities exchange or quoted on an interdealer
quotation system; (iii) to prepare and file and execute, in each case on
behalf of the Trust, such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents as shall be necessary or desirable to register the Preferred
Securities under the securities or “blue sky” laws of such jurisdictions as the


 


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Sponsor, on behalf of the Trust, may deem necessary or desirable; (iv) to
prepare and execute letters or documents to, or instruments with, The
Depository Trust Company relating to the Preferred Securities; (v) to
negotiate the terms of, and execute on behalf of the Trust, an underwriting
agreement among the Trust, the Sponsor and any underwriter, dealer or agent
relating to the Preferred Securities, substantially in the form to be included
as an exhibit to, or incorporated by reference in, the 1933 Act Registration
Statement; and (vi) to incur expenses, execute documents and take any
other actions as shall be necessary or desirable in offering the Preferred
Securities.  It is hereby acknowledged
and agreed that in connection with any execution, filing or document referred
to in clauses (i)-(iv) above, (A) any Regular Trustee (or his
attorneys-in-fact and agents or the Sponsor as permitted herein) is authorized
on behalf of the Trust to file and execute such document on behalf of the Trust
and (B) the Delaware Trustee shall not be required to join in any such
filing or execute on behalf of the Trust any such document unless required by
the rules and regulations of the Commission or any national securities
exchange on which the Preferred Securities will be listed or state securities
or blue sky laws, and in such case only to the extent so required.  In connection with all of the foregoing, the
Sponsor and each Regular Trustee, solely in its or his capacity as Trustee of
the Trust, hereby constitutes and appoints David I. Matson, David A. Anderson
and Morris W. Hirsch, and each of them, his, her or its, as the case may be,
true and lawful attorneys-in-fact, and agents, with full power of substitution
and resubstitution, for the Sponsor or such Trustee and in the Sponsor’s or
such Trustee’s name, place and stead, in any and all capacities, to sign and
file (i) the 1933 Act Registration Statement and the 1934 Act Registration
Statement and any and all amendments (including post-effective amendments) or
supplements thereto, with all exhibits thereto, and other documents in
connection therewith, and (ii) a registration statement and any and all
amendments thereto filed pursuant to Rule 462(b) under the Securities
Act with the Commission, granting unto said attorneys-in-fact and agents full
power and authority to do and perform each and every act and thing and
authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as the Sponsor or such Trustee might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their or his or her substitute or substitutes, shall do or cause to be
done by virtue hereof.


 


5.             This
Declaration may be executed in one or more counterparts.


 


6.             The
number of Trustees shall be four (4) and thereafter the number of Trustees
shall be such number as shall be fixed from time to time by a written
instrument signed by the Sponsor which may increase or decrease the number of
Trustees; provided, however, that the number of Trustees shall in no event be
less than four (4); and provided, further, however, that to the extent required
by the Statutory Trust Act, one Trustee shall either be a natural person who is
a resident of the State of Delaware or, if not a natural person, an entity that
has its principal place of business in the State of Delaware and meets any
other requirements imposed by applicable law. Subject to the foregoing, the
Sponsor is entitled to appoint or remove without cause any Trustee at any
time.  Any Trustee may resign upon thirty
days prior notice to the Sponsor; provided, however, that the Delaware Trustee
may resign immediately upon notice to the Sponsor if the Delaware Trustee is
required to join in any filing or execute on behalf of the Trust any document
pursuant to the provisions of paragraph 4 hereof and, upon giving such notice,
the Delaware Trustee shall not be required to join in any such filing or
execute on behalf


 


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of the Trust any such document; provided, further, however, that no
resignation of the Delaware Trustee shall be effective until a successor
Delaware Trustee has been appointed and has accepted such appointment by
instrument executed by such successor Delaware Trustee and delivered to the
Trust, the Sponsor and the resigning Delaware Trustee.


 


7.             To
the fullest extent permitted by applicable law, the Sponsor agrees to indemnify
(i) the Delaware Trustee, (ii) any affiliate of the Delaware Trustee,
and (iii) any officers, directors, shareholders, members, partners,
employees, representatives, nominees, custodians or agents of the Delaware
Trustee (each of the persons or entities in (i) through (iii) being
referred to as an “Indemnified Person”) for, and to hold each Indemnified
Person harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses (including reasonable legal fees and expenses) of defending
itself against, or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.  The obligation to indemnify as set forth in
this paragraph 7 shall survive the termination of this Declaration.  The Delaware Trustee shall not have any of
the powers or duties of the Trustees set forth herein, except as required under
the Statutory Trust Act.  The Delaware
Trustee shall be a Trustee of the Trust for the sole and limited purpose of
fulfilling the requirements of Section 3807(a) of the Statutory Trust
Act.


 


8.             The
Trust may terminate without issuing any Trust Securities at the election of the
Sponsor.


 


9.             This
Declaration shall be governed, and construed in accordance with, by the laws of
the State of Delaware, without regard to conflict of laws principles.


 


[Signature Page Follows]


 


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IN WITNESS WHEREOF, the
parties hereto have caused this First Amended and Restated Declaration of Trust
of UnionBanCal Finance Trust III to be duly executed as of the day and year
first above written.


 


 


	
   

  	
  UNIONBANCAL CORPORATION, as Sponsor

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David I. Matson

  
	
   

  	
   

  	
  Name:

  	
  David I. Matson

  
	
   

  	
   

  	
  Title:

  	
  Vice Chairman and Chief Financial Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  BNY MELLON TRUST OF DELAWARE,

  
	
   

  	
  as Delaware Trustee

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kristine K. Gullo

  	
   

  
	
   

  	
   

  	
  Name: Kristine K. Gullo

  	
   

  
	
   

  	
   

  	
  Title: Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ David I. Matson

  
	
   

  	
  David I. Matson, as Regular Trustee

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ David A. Anderson

  
	
   

  	
  David A. Anderson, as Regular Trustee

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Morris W. Hirsch

  
	
   

  	
  Morris W. Hirsch, as Regular Trustee

  
					



 


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