EXHIBIT 10
BAY VIEW CAPITAL CORPORATION
AND
SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION
FIRST SUPPLEMENTAL INDENTURE
Dated as of October 30, 1998
SUPPLEMENTING AND AMENDING
THE
INDENTURE
Dated as of August 28, 1997
SUBORDINATED DEBT SECURITIES
FIRST SUPPLEMENTAL INDENTURE, dated as of October 30, 1998 (the "First
Supplemental Indenture"), between Bay View Capital Corporation, a Delaware
corporation, (the "Issuer" which term as used herein includes any successor
thereto), and SunTrust Bank, Central Florida, National Association, a national
banking association, as trustee (the "Trustee").
RECITALS OF THE ISSUER
WHEREAS, the Issuer and the Trustee have duly authorized, executed and
delivered a certain indenture dated as of August 28, 1997 (the "Indenture")
and an Officers Certificate pursuant to Section 201 and 301 of the Indenture
(the "Officer's Certificate") to secure and to provide for the authentication
and delivery of the Issuer's Subordinated Debt Securities (the "Notes"),
including an initial series of Notes known as the Issuer's "9 1/8%
Subordinated Notes due 2007"; and
WHEREAS, the Issuer and the Trustee desire to amend the Indenture as
hereinafter provided;
NOW, THEREFORE, in consideration of the premises and of the covenants
herein contained and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Issuer and the Trustee
hereby agree as follows:
Section 1. For all purposes of this First Supplemental Indenture,
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unless the context otherwise requires, the capitalized terms used herein shall
have the meanings assigned to them in the Indenture.
Section 2. Clause (b)(11)(a)(A) of the Officer's Certificate is
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hereby amended in its entirety as follows:
declare, pay or set apart any funds for the payment of any dividend
on, or make any distribution to holders of, any Capital Stock of the
Company or any Capital Stock of any Subsidiary of the Company (other
than (i) payments to the Company or a Subsidiary of the Company, (ii)
dividends or distributions to the extent payable in Qualified Capital
Stock of the Company and (iii) dividends on preferred securities
issued by a Subsidiary whose purpose is primarily to invest all the
proceeds from the issuance of such preferred securities in debt
securities of the Company and any distributions of such debt securities
to the holders of the preferred securities).
Section 3. The definition of Regulatory Capital Requirement contained
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in Clause (b)(12) of the Officer's Certificate is hereby amended in its
entirety as follows:
"Regulatory Capital Requirements" means (i) with respect to the
Company, the minimum amount of capital required for the Company
(assuming for such purpose that the Company is subject to regulation
as a bank holding company under federal law, whether or not the
Company is in fact so subject) to be deemed to be
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"adequately capitalized" (or the then equivalent category) under
federal banking laws and regulations as then in effect and applicable
to the Company (assuming it is subject to regulation as a bank holding
company as aforesaid) at such time; (ii) with respect to any Principal
Bank Subsidiary of the Company at any time, the minimum amount of
capital required for such Principal Bank Subsidiary to be deemed to be
"well capitalized" (or the then equivalent category) or, solely for
purposes of clause (c) of the first paragraph under (b)(11)(d) hereof
(Limitation on Consolidation, Merger and Sale of Assets), "adequately
capitalized" (or the then equivalent category) under federal banking
laws and regulations as then in effect and applicable to such Principal
Bank Subsidiary; (iii) with respect to any Successor Person, the
minimum amount of capital required for such Successor Person (assuming
for such purpose that such Successor Person is subject to regulation
as a bank holding company under federal law, whether or not it is in
fact so subject) to be deemed to be "adequately capitalized" (or the
then equivalent category) under federal banking laws and regulations
as then in effect and applicable to such Successor Person (assuming it
is subject to regulation as a bank holding company as aforesaid) at
such time; and (iv) with respect to any Principal Bank Subsidiary of
such Successor Person at any time, the minimum amount of capital
required for such Principal Bank Subsidiary to be deemed to be "well
capitalized" (or the then equivalent category) or, solely for purposes
of clause (c) of the first paragraph under (b)(11)(d) hereof
(Limitation on Consolidation, Merger and Sale of Assets), "adequately
capitalized" (or the then equivalent category) under federal banking
laws and regulations as then in effect and applicable to such
Principal Bank Subsidiary, at such time.
Section 4. Except as specifically amended or supplemented by this
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First Supplemental Indenture, all provisions of the Indenture shall remain
applicable for all purposes, and the Indenture is hereby ratified, confirmed
and approved. The Indenture and this First Supplemental Indenture shall
together be construed as one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this First Supplemental
Indenture to be duly executed as of the day and year first above written.
BAYVIEW CAPITAL CORPORATION,
a Delaware Corporation
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
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Title: President and Chief Executive Officer
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[SEAL]
Attest:
/s/ XXXXXX X. XXXX
-------------------------------------
Name: Xxxxxx X. Xxxx
Title: Executive Vice President,
General Counsel and Secretary
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, as Trustee
By: /s/ XXXX XXXXXXXXXX
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Name: Xxxx Xxxxxxxxxx
----------------------
Title: Vice President
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[SEAL]
Attest:
/s/ XXXXXXXX XXXXX
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Name: Xxxxxxxx Xxxxx
Title: Corporate Trust Officer
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OFFICER'S CERTIFICATE
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Each of the undersigned hereby certify that they are duly elected and
incumbent officers of Bay View Capital Corporation ("BVCC"), a Delaware
corporation. In order for Silver Xxxxxxxx & Xxxx, LLP to render certain opinions
in connection with the proposed First Supplemental Indenture, to be dated the
date of this certificate (the "Supplemental Indenture"), between BVCC and
SunTrust Bank, Central Florida, National Association, as trustee (the "Trustee")
the undersigned hereby certifies the accuracy of the facts contained herein, and
to the best of our knowledge make the representations provided herein. The First
Supplemental Indenture would amend the Indenture (the "Indenture") and an
Officers' Certificate Pursuant to Sections 201 and 301 of the Indenture (the
"Officers' Certificate"), each dated August 28, 1997, between BVCC and the
Trustee, which govern the terms and conditions of BVCC's 9 1/8% Subordinated
Notes Due August 15, 2007 in the aggregate principal amount of $100,000,000 (the
"Notes"). Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Indenture. Each of the undersigned further
certifies to the Trustee and Silver Xxxxxxxx & Taff, LLP for reliance in issuing
the legal opinion as follows:
1. BVCC will only issue additional debt securities in reliance on amended
Clause (b)(11)(a)(A) of the Officer's Certificate to a Subsidiary whose sole
purpose is to invest all the net proceeds from the Subsidiary's issuance of
preferred securities in debt securities of the BVCC and engaging only in
activities necessary and advisable or incidental thereto.
2. BVCC will record on its books and records and report on its financial
statements the preferred securities issued by the Subsidiary as a liability of
BVCC for financial accounting purposes in accordance with generally accepted
accounting principles and as debt of BVCC for all tax purposes.
3. Neither the sale of the debt securities to the Subsidiary by BVCC will occur
at a time when the insolvency of BVCC is contemplated nor a trustee in
bankruptcy has been appointed for BVCC. BVCC will not be rendered insolvent by
the sale of the debt securities to the Subsidiary. After giving effect to the
sale of the debt securities, BVCC will have sufficient capital to support its
business and BVCC at the time of issuance of the debt securities has available
funds and anticipated earnings that are reasonably anticipated to be sufficient
to meet its ongoing expenses. BVCC has no intent to issue debt securities beyond
its ability to pay its debts and expenses on a timely basis as they come due.
4. The amendments do not adversely affect the interests of the Holders of the
Notes in any material respect.
BAY VIEW CAPITAL CORPORATION
Officer Name Signature
------- ---- ---------
President and Chief Xxxxxx X. Xxxxxxx /s/ XXXXXX X. XXXXXXX
Executive Officer ------------------------
Executive Vice Xxxxx X. Xxxxxxxxx /s/ XXXXX X. XXXXXXXXX
President, Chief ------------------------
Financial Officer
and Treasurer
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