EXHIBIT 4(n)
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BAY VIEW CAPITAL I
______________
AMENDED AND RESTATED DECLARATION
OF TRUST
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Dated as of , 199
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TABLE OF CONTENTS
Page
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ARTICLE I
INTERPRETATION AND DEFINITION
Section 1.1 Definitions........................................................ 2
ARTICLE II
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application................................... 9
Section 2.2 List of Holders of Securities...................................... 9
Section 2.3 Reports by the Institutional Trustee............................... 9
Section 2.4 Periodic Reports to Institutional Trustee.......................... 10
Section 2.5 Evidence of Compliance with Conditions Precedent................... 10
Section 2.6 Events of Default; Waiver.......................................... 10
Section 2.7 Event of Default; Notice........................................... 12
ARTICLE III
ORGANIZATION
Section 3.1 Name.............................................................. 12
Section 3.2 Office............................................................ 12
Section 3.3 Purpose........................................................... 13
Section 3.4 Authority......................................................... 13
Section 3.5 Title to Property of the Trust.................................... 13
Section 3.6 Powers and Duties of the Regular Trustees......................... 13
Section 3.7 Prohibition of Actions by the Trust and the Trustees.............. 16
Section 3.8 Legal Title to the Debentures..................................... 17
Section 3.9 Certain Duties and Responsibilities of the Institutional Trustee.. 19
Section 3.10 Certain Rights of Institutional Trustee........................... 20
Section 3.11 Delaware Trustee.................................................. 22
Section 3.12 Execution of Documents............................................ 23
Section 3.13 Not Responsible for Recitals or Issuance of Securities............ 23
Section 3.14 Duration of Trust................................................. 23
Section 3.15 Mergers........................................................... 23
i
ARTICLE IV
SPONSOR
Section 4.1 Sponsor's Purchase of Common Securities.......................... 25
Section 4.2 Responsibilities of the Sponsor.................................. 25
ARTICLE V
TRUSTEES
Section 5.1 Number of Trustees............................................... 26
Section 5.2 Delaware Trustee................................................. 26
Section 5.3 Institutional Trustee; Eligibility............................... 26
Section 5.4 Certain Qualifications of Regular Trustees and Delaware Trustee
Generally....................................................... 27
Section 5.5 Regular Trustees................................................. 27
Section 5.6 Delaware Trustee................................................. 28
Section 5.7 Appointment, Removal and Resignation of Trustees................. 28
Section 5.8 Vacancies among Trustees......................................... 29
Section 5.9 Effect of Vacancies.............................................. 29
Section 5.10 Meetings......................................................... 29
Section 5.11 Delegation of Power.............................................. 30
Section 5.12 Merger, Conversion, Consolidation or Succession to Business...... 30
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions.................................................... 30
ARTICLE VII
ISSUANCE OF SECURITIES
Section 7.1 General Provisions Regarding Securities........................... 31
Section 7.2 Execution and Authentication...................................... 31
Section 7.3 Form and Dating................................................... 32
Section 7.4 Paying Agent [and Conversion Agent]............................... 32
ii
ARTICLE VIII
TERMINATION OF TRUST
Section 8.1 Termination of Trust.............................................. 33
ARTICLE IX
TRANSFER OF INTERESTS
Section 9.1 Transfer of Securities............................................ 34
Section 9.2 Transfer of Certificates.......................................... 34
Section 9.3 Deemed Security Holders........................................... 35
Section 9.4 Book Entry Interests.............................................. 35
Section 9.5 Notices to Clearing Agency........................................ 36
Section 9.6 Appointment of Successor Clearing Agency.......................... 36
Section 9.7 Definitive Trust Preferred Security Certificates.................. 36
Section 9.8 Mutilated, Destroyed, Lost or Stolen Certificates................. 37
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
Section 10.1 Liability........................................................ 38
Section 10.2 Exculpation...................................................... 38
Section 10.3 Fiduciary Duty................................................... 39
Section 10.4 Indemnification.................................................. 39
Section 10.5 Outside Business................................................. 42
ARTICLE XI
ACCOUNTING
Section 11.1 Fiscal Year...................................................... 43
Section 11.2 Certain Accounting Matters....................................... 43
Section 11.3 Banking.......................................................... 43
Section 11.4 Withholding...................................................... 44
ARTICLE XII
AMENDMENTS AND MEETINGS
Section 12.1 Amendments....................................................... 44
Section 12.2 Meetings of the Holders of Securities; Action by Written Consent. 46
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ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE
Section 13.1 Representations and Warranties of Institutional Trustee.......... 47
Section 13.2 Representations and Warranties of Delaware Trustee............... 48
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Notices.......................................................... 48
Section 14.2 Governing Law.................................................... 50
Section 14.3 Intention of the Parties......................................... 50
Section 14.4 Headings......................................................... 50
Section 14.5 Successors and Assigns........................................... 50
Section 14.6 Partial Enforceability........................................... 50
Section 14.7 Counterparts..................................................... 50
Page
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ANNEX I TERMS OF SECURITIES.............................................. I-1
EXHIBIT A-1 FORM OF TRUST PREFERRED SECURITY CERTIFICATE..................... Al-1
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE.............................. A2-l
iv
CROSS-REFERENCE TABLE*
SECTION OF TRUST INDENTURE ACT SECTION OF
OF 1939, AS AMENDED DECLARATION
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310(a) 5.3(a)
310(b) 5.3(c)
310(c) Inapplicable
311(c) Inapplicable
312(a) 2.2(a)
312(b) 2.2(b)
313 2.3
314(a) 2.4; 3.6(j)
314(b) Inapplicable
314(c) 2.5
314(d) Inapplicable
314(f) Inapplicable
315(a) 3.9(b)
315(c) 3.9(a)
315(d) 3.9(a)
316(a) 2.6
316(c) 3.6(e)
317(b) 3.8(h)
317(b) 3.8(h)
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* This Cross-Reference table does not constitute part of the Declaration and
shall not affect the interpretation of any of its terms or provisions.
v
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
BAY VIEW CAPITAL I
^, 199^
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration")* dated and
effective as of ^, 199^, by the Trustees (as defined herein), the Sponsor (as
defined herein) and by the holders, from time to time, of undivided beneficial
interests in the Trust (as defined herein) to be issued pursuant to this
Declaration;
WHEREAS, certain trustees and the Sponsor established Bay View Capital I
(the "Trust"), a trust under the Business Trust Act (as defined herein) pursuant
to a Trust Agreement, dated as of September ^, 1998 (the "Original Declaration")
and a Certificate of Trust filed with the Secretary of State of the State of
Delaware on September ^, 1998, for the sole purpose of issuing and selling
certain securities representing undivided beneficial interests in the assets of
the Trust and investing the proceeds thereof in certain Debentures (as defined
herein) of the Sponsor;
WHEREAS, as of the date hereof, no interests in the Trust have been issued;
WHEREAS, all of the Trustees and the Sponsor, by this Declaration, amend
and restate each and every term and provision of the Original Declaration;
NOW, THEREFORE, it being the intention of the parties hereto to continue
the Trust as a business trust under the Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
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* Unless otherwise indicated or unless the context otherwise requires, (i)
bracketed language relating to conversion of the Trust Preferred Securities
and the Common Securities will be included only if the Trust Preferred
Securities and the Common Securities are convertible into Bay View Common
Stock or other securities; and (ii) all references to specific sections of
the Base Indenture and the Supplemental Indenture are subject to change. In
addition, if the Trust Preferred Securities and the Common Securities are
convertible into securities other than Bay View Common Stock, all references
to Bay View Common Stock will be appropriately modified.
ARTICLE I
INTERPRETATION AND DEFINITION
Section 1.1 Definitions.
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Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1, and capitalized terms used in this Declaration and defined in the preamble
above have the respective meanings assigned to them in such preamble;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to this
Declaration as modified, supplemented or amended from time to time and include
all Annexes and Exhibits hereto, which Annexes and Exhibits are expressly
incorporated by reference in and made a part of this Declaration;
(d) all references in this Declaration to Articles and Sections and Annexes
and Exhibits are to Articles and Sections of and Annexes and Exhibits to this
Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Declaration unless otherwise defined in this Declaration or unless
the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
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Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent, Registrar [or Conversion Agent].
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"Authorized Officer" of a Person means any Person that is authorized to
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bind such Person.
"Base Indenture" means the ^ Indenture dated as of ^, 199^, between the
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Company and the Debenture Trustee.
["Bay View Common Stock" includes any stock of any class of the Company
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which has no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding-up of
the Company and which is not subject to redemption by the Company. However,
subject to the provisions of Article [VII] of the Supplemental Indenture, shares
issuable on conversion of the Convertible Debentures shall include only shares
of the class designated as the common stock of the Company on the date of the
Supplemental Indenture or shares of any class or classes resulting from any
reclassification or
2
reclassifications thereof and which have no preference in respect of dividends
or of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding-up of the Company and which are not subject to redemption
by the Company; provided, however, that if at any time there shall be more than
one such resulting class, the shares of each such class then so issuable shall
be substantially in the proportion which the total number of shares of such
class resulting from all such reclassifications bears to the total number of
shares of all such classes resulting from all such reclassifications.]
"Book Entry Interest" means a beneficial interest in a Global Certificate,
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ownership and transfers of which shall be maintained and made through book
entries by a Clearing Agency as described in Section 9.4.
"Business Day" means any day other than a Saturday, Sunday or any other day
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on which banking institutions in New York, New York are permitted or required by
any applicable law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12
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Del. C. Section 3801 et seq., as it may be amended from time to time, or any
successor legislation.
"Certificate" means a Common Security Certificate or a Trust Preferred
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Security Certificate.
"Clearing Agency" means an organization registered as a "clearing agency"
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pursuant to Section 17A of the Exchange Act that is acting as depositary for the
Trust Preferred Securities and in whose name or in the name of a nominee of that
organization shall be registered a Global Certificate and which shall undertake
to effect book entry transfers and pledges of the Trust Preferred Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
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institution or other Person for whom from time to time the Clearing Agency
effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means , 199 .
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"Code" means the Internal Revenue Code of 1986, as amended from time to
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time, or any successor legislation.
"Commission" means the Securities and Exchange Commission or any successor
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thereto.
"Common Security" has the meaning specified in Section 7.1
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"Common Securities Guarantee" means the Common Securities Guarantee
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Agreement dated as of , 199 of the Sponsor in respect of the Common
Securities.
"Common Security Certificate" means a definitive certificate in fully
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registered form representing a Common Security substantially in the form of
Exhibit A-2.
3
"Company" means Bay View Capital Corporation until a successor Person shall
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have become the "Company" (as defined in the Indenture) pursuant to the
applicable provisions of the Indenture, and thereafter the "Company" shall mean
such successor Person, and any other obligor upon the Indenture.
"Company Indemnified Person" means (a) any Regular Trustee; (b) any
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Affiliate of any Regular Trustee; (c) any officer, director, shareholder,
member, partner, employee, representative or agent of any Regular Trustee; or
(d) any officer, employee or agent of the Trust or its Affiliates; provided that
the term "Company Indemnified Person" shall not include any Fiduciary
Indemnified Person.
["Conversion Agent" has the meaning specified in Section 7.4.]
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["Convertible Debentures" has the same meaning as the term "Debentures."]
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"Corporate Trust Office" means either (A) the principal corporate trust
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office of the Institutional Trustee at which at any particular time its
corporate trust business shall be administered, which office at the date of
original execution of this Declaration is located at ^, Attention: ^, or (B) for
purposes of Section 7.4 hereof (and any similar provisions of this Declaration
concerning the office or agency where Securities may be presented or surrendered
for payment, surrendered for registration of transfer or exchange[, or
surrendered for conversion]), "Corporate Trust Office" means the principal
corporate trust office of the Trustee in the Borough of Manhattan, The City of
New York at which at any particular time its corporate trust business shall be
administered in the City of New York, which office at the date of the original
execution of this Declaration is located at c/o ^, Attn: ^; provided that, for
purposes of any request, demand, authorization, direction, notice, consent,
waiver or act of Holders or other document or notice provided or permitted by
this Declaration to be made upon, given or furnished to, or filed with, the
Institutional Trustee. "Corporate Trust Office" means any office referred to in
clause (A) or (B) of this paragraph.
"Covered Person" means: (a) any officer, director, trustee, shareholder,
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partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder of Securities.
"Debenture Trustee" means ^, as trustee under the Indenture until a
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successor is appointed thereunder, and thereafter means such successor trustee.
"Debentures" means the ^% [Convertible [Subordinated/Junior Subordinated]]
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Debentures due ^, 20^ to be issued by the Company pursuant to the Indenture; a
form of the certificate evidencing the Debentures appears as Exhibit ^ to the
Supplemental Indenture.
"Declaration" means this Amended and Restated Declaration of Trust, as the
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same may be further amended or supplemented from time to time in accordance with
its terms.
"Declaration Event of Default" has the same meaning as the term "Event of
----------------------------
Default."
"Delaware Trustee" has the meaning set forth in Section 5.2.
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4
"Definitive Trust Preferred Security Certificates" has the meaning set
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forth in Section 9.4.
"Direct Action" has the meaning specified in Section 6(b) of Annex I
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hereto.
"Dissolution Tax Opinion" has the meaning set forth in Section 4(c) of
-----------------------
Annex I hereto.
"Distribution" has the meaning set forth in Section 6.1.
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"DTC" means The Depository Trust Company, the initial Clearing Agency.
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"Event of Default," as used in this Declaration (including Annex I and the
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Exhibits hereto) and the certificates evidencing the Securities, means an
Indenture Event of Default has occurred and is continuing in respect of the
Debentures.
"Exchange Act" means the Securities Exchange Act of 1934 as amended from
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time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in Section
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10.4(b).
"Fiscal Year" has the meaning set forth in Section 11.1.
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"Global Certificate" has the meaning set forth in Section 9.4.
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"Holder" means a Person in whose name a Certificate representing a Security
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is registered, such Person being a beneficial owner within the meaning of the
Business Trust Act.
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
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Indemnified Person.
"Indenture" means the Base Indenture as supplemented by the Supplemental
---------
Indenture, and as the same may be further amended or supplemented from time to
time in accordance with its terms.
"Indenture Event of Default" means an "Event of Default" as defined in the
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Supplemental Indenture.
"Investment Company" means an investment company as defined in the
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Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
----------------------
amended from time to time, or any successor legislation.
"Investment Company Event" has the meaning set forth in Section 4 of Annex
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I hereto.
"Institutional Trustee" means the Trustee meeting the eligibility
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requirements set forth in Section 5.3.
"Institutional Trustee Account" has the meaning set forth in Section
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3.8(c).
5
"Legal Action" has the meaning set forth in Section 3.6(g).
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"List of Holders" has the meaning set forth in Section 2.2(a).
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"Majority in liquidation amount" of the Securities means, except as
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provided in the terms of the Trust Preferred Securities or by the Trust
Indenture Act, Holder(s) of outstanding Securities voting together as a single
class or, as the context may require, Holders of outstanding Trust Preferred
Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of more than 50% of the aggregate liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all outstanding Securities of
the relevant class.
"No Recognition Opinion" has the meaning set forth in Section 4 of Annex I
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hereto.
"Officer's Certificate" means, with respect to any Person, a certificate
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signed by an Authorized Officer of such Person, provided that, with respect to
any Officer's Certificate to be delivered by the Regular Trustees, such
certificate shall be signed by two Regular Trustees or, if at the time there is
only one Regular Trustee, such Regular Trustee. Any Officer's Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Declaration shall include:
(a) a statement that each officer signing the certificate has read the
covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Option Closing Date" means the date of closing of any sale of [Additional
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Securities -- conform to definition in Underwriting Agreement] (as defined in
the Underwriting Agreement).
"Paying Agent" has the meaning specified in Sections 3.8(h) and 7.4.
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"Payment Amount" has the meaning set forth in Section 6.1.
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"Person" means a legal person, including any individual, corporation,
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estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
6
"Quorum" means a majority of the Regular Trustees or, if there are only two
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Regular Trustees, both of them.
"Redemption Tax Opinion" has the meaning set forth in Section 4 of Annex I
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hereto.
"Registrar" has the meaning set forth in Section 7.4 hereof.
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"Regular Trustee" has the meaning set forth in Section 5.1(b).
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"Related Party" means, with respect to the Sponsor, any direct or indirect
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wholly owned subsidiary of the Sponsor or any other Person that owns, directly
or indirectly, 100% of the outstanding voting securities of the Sponsor.
"Responsible Officer" means, with respect to the Institutional Trustee, any
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officer within the Corporate Trust Office of the Institutional Trustee,
including any vice president, any assistant vice president, any assistant
secretary, the treasurer, any assistant treasurer or other officer of the
Corporate Trust Office of the Institutional Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act.
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"Securities" means the Common Securities and the Trust Preferred
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Securities.
"Securities Act" means the Securities Act of 1933, as amended from time to
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time, or any successor legislation.
"Securities Guarantees" means the Common Securities Guarantee and the Trust
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Preferred Securities Guarantee.
"Special Event" has the meaning set forth in Section 4 of Annex I hereto.
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"Sponsor" means the Company or any successor entity in its capacity as
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sponsor of the Trust.
"Successor Delaware Trustee" has the meaning set forth in Section 5.7(b).
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"Successor Entity" has the meaning set forth in Section 3.15(b).
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"Successor Institutional Trustee" has the meaning set forth in Section
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5.7(b).
"Successor Securities" has the meaning set forth in Section 3.15(b).
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"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
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"Supplemental Indenture" means the First Supplemental Indenture dated as of
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^, 199^ between the Company and the Debenture Trustee pursuant to which the
Debentures are to be issued.
7
"Tax Event" has the meaning set forth in Section 4 of Annex I hereto.
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"10% in liquidation amount of the Securities" means, except as provided in
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the terms of the Trust Preferred Securities or by the Trust Indenture Act,
Holder(s) of outstanding Securities voting together as a single class or, as the
context may require, Holders of outstanding Trust Preferred Securities or
Holders of outstanding Common Securities voting separately as a class, who are
the record owners of 10% or more of the aggregate liquidation amount (including
the stated amount that would be paid on redemption, liquidation or otherwise,
plus accrued and unpaid Distributions to the date upon which the voting
percentages are determined) of all outstanding Securities of the relevant class.
"Treasury Regulations" means the income tax regulations, including
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temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trust" means Bay View Capital I, a Delaware statutory business trust,
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until a successor shall have become such pursuant to the applicable provisions
of this Declaration, and thereafter "Trust" shall mean such successor Trust.
"Trustee" or "Trustees" means each Person who has signed this Declaration
------- --------
as a trustee, so long as such Person shall continue in office in accordance with
the terms hereof, and all other Persons who may from time to time be duly
appointed, qualified and serving as Trustees in accordance with the provisions
hereof, and references herein to a Trustee or the Trustees shall refer to such
Person or Persons solely in their capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
-------------------
from time to time, or any successor legislation.
"Trust Preferred Securities Guarantee" means the Trust Preferred Securities
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Guarantee Agreement dated as of ^, 199^, between the Sponsor and ^ , as
guarantee trustee.
"Trust Preferred Security" has the meaning specified in Section 7.1.
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"Trust Preferred Security Beneficial Owner" means, with respect to a Book
-----------------------------------------
Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of a
Person maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in accordance
with the rules of such Clearing Agency).
"Trust Preferred Security Certificate" means a certificate representing a
------------------------------------
Trust Preferred Security substantially in the form of Exhibit A-1.
"Underwriting Agreement" means the Underwriting Agreement dated ^, 199^,
----------------------
among the Company, the Trust and the underwriters named therein for the offering
and sale of Trust Preferred Securities.
8
ARTICLE II
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application.
--------------------------------
(a) This Declaration is subject to the provisions of the Trust Indenture
Act that are required to be part of this Declaration and shall, to the extent
applicable, be governed by such provisions.
(b) The Institutional Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust indenture Act to this Declaration shall
not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
Section 2.2 List of Holders of Securities.
-----------------------------
(a) Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide the Institutional Trustee (i) within 14 days after each record
date for payment of Distributions, a list, in such form as the Institutional
Trustee may reasonably require, of the names and addresses of the Holders of the
Securities ("List of Holders") as of such record date, provided that neither the
Sponsor nor the Regular Trustees on behalf of the Trust shall be obligated to
provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Institutional Trustee by the
Sponsor and the Regular Trustees on behalf of the Trust, and (ii) at any other
time, within 30 days of receipt by the Trust of a written request for a List of
Holders as of a date no more than 14 days before such List of Holders is given
to the Institutional Trustee; provided, however, that so long as the
Institutional Trustee or an Affiliate of the Institutional Trustee is the
Registrar no such list shall be required to be furnished. The Institutional
Trustee shall preserve, in as current a form as is reasonably practicable, all
information contained in Lists of Holders given to it or which it receives in
the capacity as Paying Agent (if acting in such capacity) provided that the
Institutional Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Institutional Trustee shall comply with its obligations under
Section 311(a), 311(b) and 312(b) of the Trust Indenture Act.
Section 2.3 Reports by the Institutional Trustee.
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Within 60 days after May 15 of each year, the Institutional Trustee shall
provide to the Holders of the Trust Preferred Securities such reports as are
required by Section 313 of the Trust Indenture Act, if any, in the form and in
the manner provided by Section 313 of the Trust
9
Indenture Act. The Institutional Trustee shall also comply with the requirements
of Section 313(d) of the Trust Indenture Act.
Section 2.4 Periodic Reports to Institutional Trustee.
-----------------------------------------
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide to the Institutional Trustee such documents, reports and information as
may be required by Section 314 of the Trust Indenture Act (if any) and the
compliance certificate required by Section 314 of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
Delivery of such reports, information and documents to the Institutional
Trustee is for informational purposes only and the Institutional Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Sponsor's compliance with any of its covenants hereunder (as to which the
Institutional Trustee is entitled to rely exclusively on Officers'
Certificates).
Section 2.5 Evidence of Compliance with Conditions Precedent.
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Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide to the Institutional Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration that relate to
any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(l) may be given in the form of an Officers' Certificate.
Section 2.6 Events of Default; Waiver.
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(a) The Holders of a Majority in liquidation amount of Trust Preferred
Securities may, by vote, on behalf of the Holders of all of the Trust Preferred
Securities, waive any past Event of Default in respect of the Trust Preferred
Securities and its consequences, provided that, if the underlying Indenture
Event of Default:
(i) is not waivable under the Indenture, the Event of Default under
the Declaration shall also not be waivable; or
(ii) requires the consent or vote of (x) holders of Debentures
representing a specified percentage greater than a majority in principal
amount of the Debentures (a "Super Majority") or (y) each holder of
Debentures affected thereby to be waived under the Indenture, then the Event
of Default under the Declaration may only be waived by the vote of, in the
case of (x) above, Holders of Trust Preferred Securities representing at
least such specified percentage of the aggregate liquidation amount of the
outstanding Trust Preferred Securities or, in the case of (y) above, each
Holder of outstanding Trust Preferred Securities affected thereby.
The foregoing provisions of this Section 2.6(a) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Event of Default with
10
respect to the Trust Preferred Securities arising therefrom shall be deemed to
have been cured, for every purpose of this Declaration, but no such waiver shall
extend to any subsequent or other default or Event of Default with respect to
the Trust Preferred Securities or impair any right consequent there on. Any
waiver by the Holders of the Trust Preferred Securities of an Event of Default
with respect to the Trust Preferred Securities shall also be deemed to
constitute a waiver by the Holders of the Common Securities of any such Event of
Default with respect to the Common Securities for all purposes of this
Declaration without any further act, vote, or consent of the Holders of the
Common Securities.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Indenture
Event of Default:
(i) is not waivable under the Indenture, except where the Holders of
the Common Securities are deemed to have waived such Event of Default under
the Declaration as provided below in this Section 2.6(b), the Event of
Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of (x) a Super Majority or (y) each
holder of Debentures affected thereby to be waived, except where the
Holders of the Common Securities are deemed to have waived such Event of
Default under the Declaration as provided below in this Section 2.6(b), the
Event of Default under the Declaration may only be waived by the vote of,
in the case of clause (x) above, Holders of Common Securities representing
at least such specified percentage of the aggregate liquidation amount of
the outstanding Common Securities or, in the case of clause (y) above, each
holder of outstanding Common Securities affected thereby;
provided further, each Holder of Common Securities will be deemed to have waived
any such Event of Default and all Events of Default with respect to the Common
Securities and its consequences until all Events of Default with respect to the
Trust Preferred Securities have been cured, waived or otherwise eliminated, and
until such Events of Default with respect to the Trust Preferred Securities have
been so cured, waived or otherwise eliminated, the Institutional Trust will be
deemed to be acting solely on behalf of the Holders of the Trust Preferred
Securities and only the Holders of the Trust Preferred Securities will have the
right to direct the Institutional Trustee in accordance with the terms of the
Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu of
Section 316(a)(1)(A) and 316(a)(l)(B) of the Trust Indenture Act and such
Section 316(a)(1)(A) and 316(a)(l)(B) of the Trust Indenture Act are hereby
expressly excluded from this Declaration and the Securities, as permitted by the
Trust Indenture Act. Subject to the foregoing provisions of this Section 2.6(b),
upon such waiver, any such default shall cease to exist and any Event of Default
with respect to the Common Securities arising therefrom shall be deemed to have
been cured for every purpose of this Declaration, but no such waiver shall
extend to any subsequent or other default or Event of Default with respect to
the Common Securities or impair any right consequent thereon.
(c) A waiver of an Indenture Event of Default by the Institutional Trustee
at the direction of the Holders of the Trust Preferred Securities constitutes a
waiver of the
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corresponding Event of Default under this Declaration. The foregoing provisions
of this Section 2.6(c) shall be in lieu of Section 316(a)(1)(B) of the Trust
Indenture Act and such Section 316(a)(1)(B) of the Trust Indenture Act is hereby
expressly excluded from this Declaration and the Securities, as permitted by the
Trust Indenture Act.
Section 2.7 Event of Default; Notice.
------------------------
(a) The Institutional Trustee shall, within 90 days after the occurrence of
an of Default, transmit by mail, first class postage prepaid, to the Holders of
the Securities, notices of all defaults with respect to the Securities actually
known to a Responsible Officer of the Institutional Trustee, unless such
defaults have been cured before the giving of such notice (the term "defaults"
for the purposes of this Section 2.7(a) being hereby defined to be an Indenture
Event of Default with respect to the Debentures, not including any periods of
grace provided for therein and irrespective of the giving of any notice provided
therein); provided that, except for a default in the payment of principal of (or
premium, if any) or interest on any of the Debentures, the Institutional Trustee
shall be protected in withholding such notice if and so long as a Responsible
Officer of the Institutional Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of the Securities.
(b) The Institutional Trustee shall not be deemed to have knowledge of any
default with respect to the Debentures except:
(i) a default with respect to the Debentures under (A) [Section
501(1)] of the Base Indenture, as amended and restated by [Section 2.9(c)]
of the Supplemental Indenture, or (B) [Section 501(2)] of the Base
Indenture; or
(ii) any default with respect to the Debentures as to which the
Institutional Trustee shall have received written notice or of which a
Responsible Officer of the Institutional Trustee charged with the
administration of the Declaration shall have actual knowledge.
ARTICLE III
ORGANIZATION
Section 3.1 Name.
----
The Trust is named "Bay View Capital I" as such name may be modified from
time to time by the Regular Trustees following written notice to the Holders of
Securities and the other Trustees. The Trust's activities may be conducted under
the name of the Trust or any other name deemed advisable by the Regular
Trustees.
Section 3.2 Office.
------
The address of the principal office of the Trust is c/o Bay View Capital
Corporation, 0000 Xxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000. On ten Business
Days' written notice to the
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Holders of Securities and the other Trustees, the Regular Trustees may designate
another principal office.
Section 3.3 Purpose.
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The exclusive purposes and functions of the Trust are (a) to issue and sell
Securities and use the proceeds from such sale to acquire the Debentures, and
(b) except as otherwise limited herein, to engage in only those other activities
necessary, or incidental thereto. The Trust shall not borrow money, issue
securities other than the Securities, issue debt, make investments other than in
the Debentures or reinvest proceeds derived from investments, pledge any of its
assets, or otherwise undertake (or permit to be undertaken) any activity that
would cause the Trust not to be classified for United States federal income tax
purposes as a grantor trust.
Section 3.4 Authority.
---------
Subject to the limitations provided in this Declaration and to the specific
duties of the Institutional Trustee, the Regular Trustees shall have exclusive
and complete authority to carry out the purposes of the Trust. An action taken
by the Regular Trustees in accordance with their powers shall constitute the act
of and serve to bind the Trust and an action taken by the Institutional Trustee
on behalf of the Trust in accordance with its powers shall constitute the act of
and serve to bind the Trust. In dealing with the Trustees acting on behalf of
the Trust, no Person shall be required to inquire into the authority of the
Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Trustees as set forth in this
Declaration.
Section 3.5 Title to Property of the Trust.
------------------------------
Except as provided in Section 3.8 with respect to the Debentures and the
Institutional Trustee Account or as otherwise provided in this Declaration,
legal title to all assets of the Trust shall be vested in the Trust. The Holders
shall not have legal title to any part of the assets of the Trust, but shall
have an undivided beneficial interest in the assets of the Trust.
Section 3.6 Powers and Duties of the Regular Trustees.
-----------------------------------------
The Regular Trustees shall have the exclusive power, duty and authority to
cause the Trust to engage in the following activities:
(a) to issue and sell the Trust Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
Trust may issue no more than one series of Trust Preferred Securities and no
more than one series of Common Securities, and, provided further, that there
shall be no interests in the Trust other than the Securities, and the issuance
of Securities shall be limited to a simultaneous issuance of both Trust
Preferred Securities and Common Securities on the Closing Date and the Option
Closing Date, if any;
(b) in connection with the issue and sale of the Trust Preferred
Securities, at the direction of the Sponsor, to:
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(i) file with the Commission the registration statement on Form S-3
prepared by the Sponsor, including any amendments thereto, pertaining to,
among other securities, the Trust Preferred Securities;
(ii) file any documents prepared by the Sponsor, or take any acts as
determined by the Sponsor to be necessary in order to qualify or register
all or part of the Trust Preferred Securities in any State in which the
Sponsor has determined to qualify or register such Trust Preferred
Securities for sale;
(iii) file an application, prepared by the Sponsor, to the New York
Stock Exchange, Inc. or any other national stock exchange or the Nasdaq
National Market for listing upon notice of issuance of any Trust Preferred
Securities;
(iv) file with the Commission a registration statement on Form 8-A,
including any amendments thereto, prepared by the Sponsor, relating to the
registration of the Trust Preferred Securities and, if deemed necessary or
appropriate by the Regular Trustees, the guarantee of the Sponsor in respect
of the Trust Preferred Securities under Section 12(b) or 12(g) of the
Exchange Act; and
(v) enter into the Underwriting Agreement providing for the sale of
the Trust Preferred Securities;
(c) to acquire the Debentures with the proceeds of the sale of the Trust
Preferred Securities and the Common Securities; provided, however, that the
Regular Trustees shall cause legal title to the Debentures to be held of record
in the name of the Institutional Trustee for the benefit of the Holders of the
Trust Preferred Securities and the Holders of Common Securities;
(d) to give the Sponsor and the Institutional Trustee prompt written
notice of the occurrence of a Special Event; provided that the Regular Trustees
shall not be required to give such notice unless any Regular Trustee shall have
obtained actual knowledge of the occurrence of a Special Event; and provided,
further, that the Regular Trustees shall consult with the Sponsor and the
Institutional Trustee before taking or refraining from taking any Ministerial
Action in relation to a Special Event;
(e) subject to Section 2(c) of Annex I hereto, to establish a record date
with respect to all actions to be taken hereunder that require a record date be
established, including and with respect to, for the purposes of Section 316
(c) of the Trust Indenture Act, Distributions, voting rights, redemptions
and exchanges, and to issue relevant notices to the Holders of Trust Preferred
Securities and Holders of Common Securities as to such actions and applicable
record dates;
(f) to take all actions and perform such duties as may be required of the
Regular Trustees pursuant to the terms of the Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Institutional Trustee
has the exclusive power to bring such Legal Action;
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(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of the Trust
Indenture Act to the Institutional Trustee, which certificate may be executed by
any Regular Trustee;
(k) to incur expenses that are necessary or incidental to carry out any of
the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and transfer
agent for the Securities;
(m) to give prompt written notice to the Holders of the Securities of any
notice received from the Sponsor of its election to defer payments of interest
on the Debentures by extending the interest payment period under the Indenture,
and the Regular Trustee shall give such notice;
(n) to execute all documents, certificates, agreements or instruments,
perform all duties and powers, and do all things for and on behalf of the Trust
in all matters necessary or incidental to the foregoing;
(o) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Trust Preferred
Securities or to enable the Trust to effect the purposes for which the Trust was
created;
(p) to conduct the affairs of and to operate the Trust and to take any
action, not inconsistent with this Declaration or with applicable law, that the
Regular Trustees determine in their discretion to be necessary or desirable in
carrying out the activities of the Trust as set out in this Section 3.6,
including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States federal
income tax purposes as a grantor trust; and
(iii) cooperating with the Sponsor to ensure that the Debentures will
be treated as indebtedness of the Sponsor for United States federal income
tax purposes,
provided that such action does not adversely affect the interests of Holders;
and
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(q) to take all action necessary to cause all applicable tax returns and
tax information reports that are required to be filed with respect to the Trust
to be duly prepared and filed by the Regular Trustees, on behalf of the Trust.
The Regular Trustees must exercise the powers set forth in this Section 3.6
in a manner that is consistent with the purposes and functions of the Trust set
out in Section 3.3, and the Regular Trustees shall not take any action that is
inconsistent with the purposes and functions of the Trust set forth in Section
3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of the
powers or the authority of the Institutional Trustee set forth in Section 3.8.
Any expenses incurred by the Regular Trustees pursuant to this Section 3.6
shall be reimbursed by the Sponsor.
Section 3.7 Prohibition of Actions by the Trust and the Trustees.
----------------------------------------------------
(a) The Trust shall not, and the Trustees (including the Institutional
Trustee) shall cause the Trust not to, engage in any activity other than as
required or authorized by this Declaration. In particular, the Trust shall not
and the Trustees (including the Institutional Trustee) shall cause the Trust not
to:
(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders of Securities
pursuant to the terms of this Declaration and of the Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other than loans
represented by the Debentures;
(v) possess any power or otherwise act in such a way as to vary the
Trust assets or the terms of the Securities in any way whatsoever;
(vi) issue any securities or other evidences of beneficial ownership to
or beneficial interest in the Trust other than the Securities; or
(vii) other than as provided in this Declaration, (A) direct the time,
method and place of exercising any trust or power conferred upon the
Debenture Trustee with respect to the Debentures, (B) waive any past
default that is waivable under the Indenture, (C) exercise any right to
rescind or annul any declaration that the principal of all the Debentures
shall be due and payable, or (D) consent to any amendment, modification or
termination of the Indenture or the Debentures where such consent shall be
required unless the Trust shall have received an opinion of counsel to the
effect that such modification will not cause more than an insubstantial
risk that for United States federal income tax purposes the Trust will not
be classified as a grantor trust.
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Section 3.8 Legal Title to the Debentures.
-----------------------------
(a) The legal title to the Debentures shall be owned by and held of
record in the name of the Institutional Trustee (in its capacity as such) in
trust for the benefit of the Holders of the Securities. The right, title and
interest of the Institutional Trustee to the Debentures shall vest automatically
in each Person who may hereafter be appointed as Institutional Trustee in
accordance with Section 5.7. Such vesting and cessation of title shall be
effective whether or not conveyancing documents with regard to the Debentures
have been executed and delivered.
(b) The Institutional Trustee shall not transfer its right, title and
interest in the Debentures to the Regular Trustees or to the Delaware Trustee
(if the Institutional Trustee does not also act as Delaware Trustee). [The Trust
and the Institutional Trustee shall not convert any Debentures held by either of
them except pursuant to a notice of conversion delivered to the Conversion Agent
by a Holder of Trust Securities.]
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust
account (the "Institutional Trustee Account") in the name of and under the
exclusive control of the Institutional Trustee on behalf of the Holders of
the Securities and, upon the receipt of payments of funds made in respect
of the Debentures held by the Institutional Trustee, deposit such funds
into the Institutional Trustee Account and make payments to the Holders of
the Trust Preferred Securities and Holders of the Common Securities from
the Institutional Trustee Account in accordance with Section 6.1. Funds in
the Institutional Trustee Account shall be held uninvested until disbursed
in accordance with this Declaration. The Institutional Trustee Account
shall be an account that is maintained with a banking institution (which
may be the Institutional Trustee) the rating on whose long-term unsecured
indebtedness is at least equal to the rating assigned to the Trust
Preferred Securities by a "nationally recognized statistical rating
organization," as that term is defined for purposes of Rule 436(g)(2) under
the Securities Act;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Trust Preferred Securities and
the Common Securities to the extent the Debentures are redeemed or
accelerated or mature;
(iii) upon written notice of distribution issued by the Regular
Trustees in accordance with the terms of the Securities, engage in such
ministerial activities as shall be necessary or appropriate to effect the
distribution of the Debentures to Holders of Securities upon the occurrence
of certain Special Events; and
(iv) take such ministerial action as may be requested by the Regular
Trustees in connection with the winding up of the affairs of or liquidation
of the Trust in accordance with this Declaration and the preparation,
execution and filing of a certificate of cancellation or other appropriate
certificates with the Secretary of State of the State of Delaware and other
appropriate governmental authorities.
(d) The Institutional Trustee shall take all actions and perform such
duties as may be specifically required of the Institutional Trustee pursuant to
the terms of the Securities.
17
(e) The Institutional Trustee shall take any Legal Action which arises out
of or in connection with an Event of Default of which a Responsible Officer of
the Institutional Trustee has actual knowledge or the Institutional Trustee's
duties and obligations under this Declaration or the Trust Indenture Act. The
Holders of a Majority in liquidation amount of the Trust Preferred Securities
will have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Institutional Trustee or to direct
the exercise of any trust or power conferred upon the Institutional Trustee
under the Declaration, including the right to direct the Institutional Trustee
to exercise the remedies available to it as a holder of the Debentures. If the
Institutional Trustee fails to enforce its rights under the Debentures, a Holder
of Trust Preferred Securities, to the fullest extent permitted by law, may
institute a legal proceeding directly against the Company to enforce the
Institutional Trustee's rights under the Debentures without first instituting
any legal proceeding against the Institutional Trustee or any other Person;
provided further, that, if an Event of Default has occurred and is continuing
and such event is attributable to the failure of the Company to pay principal
of, premium, if any, or interest on the Debentures on the date such principal,
premium or interest, as the case may be, is otherwise payable (or in the case of
redemption, on the redemption date), then a Holder of Trust Preferred Securities
may directly institute a proceeding for enforcement of payment to such Holder
directly of the principal of, premium, if any, or interest on the Debentures
having a principal amount equal to the aggregate liquidation amount of
the Trust Preferred Securities of such Holder (a "Direct Action") on or after
-------------
the respective due date specified in the Debentures or the Indenture.
Notwithstanding any payments made to such Holder by the Company, in connection
with such Direct Action, the Company shall remain obligated to pay the principal
of, premium, if any, or interest on such Debentures, and the Company shall be
subrogated to the rights of such Holder of Trust Preferred Securities to the
extent of any payment made by the Company to such Holder of Trust Preferred
Securities in such Direct Action. Except as provided in the preceding sentences
of this paragraph, the Holders of Trust Preferred Securities shall have no right
or power to exercise directly any other remedy available to the holders of the
Debentures.
(f) The Institutional Trustee shall continue to serve as a Trustee until
either:
(i) the Trust has been completely liquidated and the proceeds of the
liquidation distributed to the Holders of Securities pursuant to the terms
of the Securities; or
(ii) a Successor Institutional Trustee has been appointed and has
accepted that appointment in accordance with Section 5.7.
(g) The Institutional Trustee shall have the legal power to exercise all
of the rights, powers and privileges of a holder of Debentures under the
Indenture and, if an Event of Default actually known to a Responsible Officer of
the Institutional Trustee occurs and is continuing, the Institutional Trustee
shall, for the benefit of Holders of the Securities, enforce its rights as
holder of the Debentures subject to the rights of the Holders pursuant to the
terms of such Securities.
(h) The Institutional Trustee may authorize one or more Persons (each, a
"Paying Agent") to pay Distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to all Securities and any such
Paying Agent shall comply with Section 317(b)
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of the Trust Indenture Act. Any Paying Agent may be removed by the Institutional
Trustee at any time and a successor Paying Agent or additional Paying Agents may
be appointed at any time by the Institutional Trustee.
(i) Subject to this Section 3.8, the Institutional Trustee shall have none
of the duties, liabilities, powers or the authority of the Regular Trustees set
forth in Section 3.6.
The Institutional Trustee must exercise the powers set forth in this
Section 3.8 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Institutional Trustee shall not take
any action that is inconsistent with the purposes and functions of the Trust set
out in Section 3.3.
Section 3.9 Certain Duties and Responsibilities of the Institutional
--------------------------------------------------------
Trustee.
-------
(a) The Institutional Trustee, before the occurrence of any Event of
Default and after the curing or waiving of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Declaration and no implied covenants or obligations shall be read
into this Declaration against the Institutional Trustee. In case an Event of
Default has occurred (that has not been cured or waived pursuant to Section 2.6)
of which a Responsible Officer of the Institutional Trustee has actual
knowledge, the Institutional Trustee shall exercise such of the rights and
powers vested in it by this Declaration, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) No provision of this Declaration shall be construed to relieve the
Institutional Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after the curing
or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Institutional Trustee shall
be determined solely by the express provisions of this Declaration and the
Institutional Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Declaration, and no implied covenants or obligations shall be read into
this Declaration against the Institutional Trustee; and
(B) in the absence of bad faith on the part of the Institutional
Trustee, the Institutional Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Institutional Trustee
and conforming to the requirements of this Declaration; but in the case of
any such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Institutional Trustee, the
Institutional Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Declaration;
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(ii) the Institutional Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Institutional
Trustee, unless it shall be proved that the Institutional Trustee was negligent
in ascertaining the pertinent facts;
(iii) the Institutional Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a Majority in liquidation amount of
the Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Institutional Trustee, or exercising
any trust or power conferred upon the Institutional Trustee under this
Declaration;
(iv) no provision of this Declaration shall require the Institutional
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing that the
repayment of such funds or liability is not reasonably assured to it under the
terms of this Declaration or indemnity reasonably satisfactory to the
Institutional Trustee against such risk or liability is not reasonably assured
to it;
(v) the Institutional Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Debentures and the Institutional
Trustee Account shall be to deal with such property in a similar manner as the
Institutional Trustee deals with similar property for its own account, subject
to the protections and limitations on liability afforded to the Institutional
Trustee under this Declaration and the Trust Indenture Act;
(vi) the Institutional Trustee shall have no duty or liability for or with
respect to the value, genuineness, existence or sufficiency of the Debentures or
the payment of any taxes or assessments levied thereon or in connection
therewith;
(vii) the Institutional Trustee shall not be liable for any interest on any
money received by it except as it may otherwise agree in writing with the
Sponsor, and money held by the Institutional Trustee need not be segregated from
other funds held by it except in relation to the Institutional Trustee Account
maintained by the Institutional Trustee pursuant to Section 3.8(c)(i) and except
to the extent otherwise required by law; and
(viii) the Institutional Trustee shall not be responsible for monitoring the
compliance by the Regular Trustees or the Sponsor with their respective duties
under this Declaration, nor shall the Institutional Trustee be liable for any
default or misconduct of the Regular Trustees or the Sponsor.
Section 3.10 Certain Rights of Institutional Trustee.
---------------------------------------
(a) Subject to the provisions of Section 3.9:
(i) the Institutional Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument,
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opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed, sent or presented by the proper party or
parties;
(ii) a direction or act of the Sponsor or the Regular Trustees
contemplated by this Declaration shall be sufficiently evidenced by an Officers'
Certificate;
(iii) whenever in the administration of this Declaration, the Institutional
Trustee shall deem it desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the Institutional Trustee
(unless other evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, request and conclusively rely upon an Officers'
Certificate which, upon receipt of such request, shall be promptly delivered by
the Sponsor or the Regular Trustees;
(iv) the Institutional Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or registration thereof;
(v) the Institutional Trustee may consult with counsel of its selection
or other experts and the advice or opinion of such counsel and experts with
respect to legal matters or advice within the scope of such experts' area of
expertise shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
accordance with such advice or opinion; such counsel may be counsel to the
Sponsor or any of its Affiliates, and may include any of its employees; and the
Institutional Trustee shall have the right at any time to seek instructions
concerning the administration of this Declaration from any court of competent
jurisdiction;
(vi) the Institutional Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Declaration at the request or
direction of any Holder, unless such Holder shall have provided to the
Institutional Trustee security and indemnity, reasonably satisfactory to the
Institutional Trustee, against the costs, expenses (including attorneys' fees
and expenses and the expenses of the Institutional Trustee's agents, nominees or
custodians) and liabilities that might be incurred by it in complying with such
request or direction, including such reasonable advances as may be requested by
the Institutional Trustee, provided, that nothing contained in this Section
3.10(a)(vi) shall be taken to (a) require the Holders of Securities to offer
such indemnity in the event such Holders direct the Institutional Trustee to
take any action it is empowered to take under this Declaration following an
Event of Default or (b) relieve the Institutional Trustee, upon the occurrence
of an Event of Default, of its obligation to exercise the rights and powers
vested in it by this Declaration;
(vii) the Institutional Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion. report, notice, request, direction, consent,
order, bond, debenture, note other evidence of indebtedness or other paper or
document, but the Institutional Trustee in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit;
21
(viii) the Institutional Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents, custodians, nominees or attorneys and the Institutional
Trustee shall not be responsible for any misconduct or negligence on the part
of any agent or attorney appointed with due care by it hereunder;
(ix) any action taken by the Institutional Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and the
signature of the Institutional Trustee or its agents alone shall be
sufficient and effective to perform any such action and no third party shall
be required to inquire as to the authority of the Institutional Trustee to so
act or as to its compliance with any of the terms and provisions of this
Declaration, both of which shall be conclusively evidenced by the
Institutional Trustee's or its agent's taking such action;
(x) whenever in the administration of this Declaration the
Institutional Trustee shall deem it desirable to receive written instructions
with respect to enforcing any remedy or right or taking any other action
hereunder, the Institutional Trustee (i) may request written instructions
from the Holders of the Securities which instructions may only be given by
the Holders of the same proportion in liquidation amount of the Securities as
would be entitled to direct the Institutional Trustee under the terms of the
Securities in respect of such remedy, right or action, (ii) may refrain from
enforcing such remedy or right or taking such other action until such
instructions are received, and (iii) shall be protected in conclusively
relying on or acting in accordance with such instructions;
(xi) except as otherwise expressly provided by this Declaration, the
Institutional Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Declaration; and
(xii) the Institutional Trustee shall not be liable for any action
taken, suffered or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Declaration.
(b) No provision of this Declaration shall be deemed to impose any duty or
obligation on the Institutional Trustee to perform any act or acts or exercise
any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Institutional Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Institutional
Trustee shall be construed to be a duty.
Section 3.11 Delaware Trustee.
----------------
Notwithstanding any other provision of this Declaration other than this
Section 3.11, the Delaware Trustee shall not be entitled to exercise any powers,
nor shall the Delaware Trustee have any of the duties and responsibilities of
the Trustees described in this Declaration (except as required under the
Business Trust Act). Except as set forth in this Section 3.11, the Delaware
22
Trustee shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Business Trust Act that the Trust have at
least one trustee with a principal place of business in Delaware. The duties of
the Delaware Trustee shall be limited to (a) accepting legal process served on
the Trust in the State of Delaware and (b) the execution of any certificates
required to be filed with the Delaware Secretary of State which the Delaware
Trustee is required to execute under Section 3811 of the Business Trust Act.
Section 3.12 Execution of Documents.
----------------------
Except as otherwise required by the Business Trust Act or applicable law,
any Regular Trustee is authorized to execute on behalf of the Trust any
documents that the Regular Trustees have the power and authority to execute or
to cause the Trust to execute pursuant to Section 3.6.
Section 3.13 Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained in this Declaration and the Securities shall be
taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as
to the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
Section 3.14 Duration of Trust.
-----------------
The Trust, unless terminated pursuant to the provisions of Article 8
hereof, shall have existence until the date specified in Section 8.1(a)(vii)
hereof.
Section 3.15 Mergers.
-------
(a) The Trust may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except as described in Section
3.15(b) and (c).
(b) The Trust may, with the consent of the Regular Trustees or, if there
are more than two, a majority of the Regular Trustees and without the consent of
the Holders of the Securities, the Delaware Trustee or the Institutional
Trustee, consolidate, amalgamate, merge with or into, or be replaced by a trust
organized as such under the laws of any State of the United States; provided
that:
(i) if the Trust is not the survivor, such successor entity (the
"Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust under
the Securities; or
(B) substitutes for the Trust Preferred Securities other
securities having substantially the same terms as the Trust Preferred
Securities (the "Successor Securities") so long as the Successor
Securities rank the same as the Trust
23
Preferred Securities rank with respect to Distributions and payments
upon liquidation, redemption and otherwise;
(ii) if the Trust is not the survivor, the Sponsor expressly
acknowledges or appoints a trustee of the Successor Entity that possesses
the same powers and duties as the Institutional Trustee as the holder of
the Debentures;
(iii) the Trust Preferred Securities or any Successor Securities are
listed, or any Successor Securities will be listed upon notification of
issuance, on any national securities exchange or with another organization
on which the Trust Preferred Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation or replacement does not
cause the Trust Preferred Securities (including any Successor Securities)
to be downgraded by any nationally recognized statistical rating
organization (as defined in Section 3.8 above);
(v) such merger, consolidation, amalgamation or replacement does not
adversely affect the rights, preferences and privileges of the Holders of
the Securities (including any Successor Securities) in any material respect
(other than with respect to any dilution of such Holders' interests in the
new entity, if any);
(vi) such Successor Entity has a purpose substantially identical to
that of the Trust;
(vii) prior to such merger, consolidation, amalgamation or
replacement, the Sponsor has received an opinion of a nationally recognized
independent counsel to the Trust experienced in such matters to the effect
that:
(A) such merger, consolidation, amalgamation or replacement
does not adversely affect the rights, preferences and privileges of
the Holders of the Securities (including any Successor Securities) in
any material respect (other than with respect to any dilution of the
Holders' interest in the new entity);
(B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor the Successor Entity, if any, will
be required to register as an Investment Company; and
(C) following such merger, consolidation, amalgamation or
replacement, the Trust (or the Successor Entity) will be treated as a
grantor trust for United States federal income tax purposes; and
(viii) if the Trust is not the survivor, the Sponsor guarantees the
obligations of such Successor Entity under the Successor Securities at
least to the extent provided by the Securities Guarantees.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with the
consent of Holders of 100% in liquidation amount of the Securities, consolidate,
amalgamate, merge with or into, or be replaced by any other Person or permit any
other Person to consolidate, amalgamate,
24
merge with or into, or replace it if such consolidation, amalgamation, merger or
replacement would cause the Trust or Successor Entity to be classified as other
than a grantor trust for United States federal income tax purposes.
ARTICLE IV
SPONSOR
Section 4.1 Sponsor's Purchase of Common Securities.
---------------------------------------
On the Closing Date and on any Option Closing Date the Sponsor will
purchase the Common Securities issued by the Trust, in an amount equal to at
least 3% of the capital of the Trust, at the same time as the Trust Preferred
Securities are sold.
Section 4.2 Responsibilities of the Sponsor.
-------------------------------
In connection with the issue and sale of the Trust Preferred Securities,
the Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by, and execute on behalf of, the Trust with the
Commission a registration statement on Form S-3 in relation to the Trust
Preferred Securities and the Trust Preferred Securities Guarantee, including any
amendments thereto;
(b) to determine the States in which to take appropriate action to qualify
or register for sale all or part of the Trust Preferred Securities and the Trust
Preferred Securities Guarantee and to do any and all such acts, other than
actions which must be taken by the Trust, and advise the Trust of actions it
must take, and prepare for filing and execute any documents to be executed and
filed by the Trust, as the Sponsor deems necessary or advisable in order to
comply with the applicable laws of any such States;
(c) to prepare for filing by, and execute on behalf of, the Trust an
application to the New York Stock Exchange, Inc. or any other national stock
exchange or the Nasdaq National Market for listing upon notice of issuance of
any Trust Preferred Securities and, if deemed necessary or advisable by the
Sponsor, the Trust Preferred Securities Guarantee;
(d) to prepare for filing by, and execute on behalf of, the Trust documents
or instruments to be delivered to DTC relating to the Trust Preferred
Securities;
(e) to prepare for filing with the Commission by, and execute on behalf of,
the Trust a registration statement on Form 8-A relating to the registration of
the Trust Preferred Securities and, if deemed necessary or advisable by the
Sponsor, the Trust Preferred Securities Guarantee under Section 12(b) or 12(g)
of the Exchange Act, including any amendments thereto; and
(f) to negotiate the terms of, and execute on behalf of the Trust, the
Underwriting Agreement providing for the sale of the Trust Preferred
Securities.
25
ARTICLE V
TRUSTEES
Section 5.1 Number of Trustees.
------------------
The number of Trustees initially shall be five (5), and:
(a) at any time before the issuance of any Securities, the Sponsor may, by
written instrument, increase or decrease the number of Trustees; and
(b) after the issuance of any Securities, the number of Trustees may be
increased or decreased by vote of the Holders of a Majority in liquidation
amount of the Common Securities voting as a class at a meeting of the Holders of
the Common Securities; provided, however, that the number of Trustees shall in
no event be less than two; provided further that (1) one Trustee shall satisfy
the requirements of Section 5.2; (2) there shall be at least one Trustee who is
an employee or officer of, or is affiliated with the Sponsor (a "Regular
Trustee"); and (3) one Trustee shall be the Institutional Trustee for so long as
this Declaration is required to qualify as an indenture under the Trust
Indenture Act, and such Trustee may also serve as Delaware Trustee if it meets
the applicable requirements.
Section 5.2 Delaware Trustee.
----------------
If required by the Business Trust Act, one Trustee (the "Delaware Trustee")
shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place of
business in the State of Delaware, and otherwise meets the requirements of
applicable law; provided that, if the Institutional Trustee has its principal
place of business in the State of Delaware and otherwise meets the requirements
of applicable law, then the Institutional Trustee shall also be the Delaware
Trustee and Section 3.11 shall have no application.
Section 5.3 Institutional Trustee; Eligibility.
----------------------------------
(a) There shall at all times be one Trustee which shall act as
Institutional Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation or bank organized and doing business under the
laws of the United States of America or any State or Territory thereof or
of the District of Columbia, or a corporation, bank or other Person
permitted by the Commission to act as an institutional trustee under the
Trust Indenture Act, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000, and
subject to supervision or examination by federal, state, territorial or
District of Columbia authority. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of the
supervising or examining authority
26
referred to above, then for the purposes of this Section 5.3(a)(ii), the
combined capital and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Institutional Trustee shall cease to be eligible to
so act under Section 5.3(a), the Institutional Trustee shall immediately resign
in the manner and with the effect set forth in Section 5.7(c).
(c) If the Institutional Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Institutional Trustee and the Holder of the Common Securities (as if it were the
obligor referred to in Section 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
(d) The Trust Preferred Securities Guarantee shall be deemed to be
specifically described in this Declaration for purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
(e) The initial Institutional Trustee shall be: ^.
Section 5.4 Certain Qualifications of Regular Trustees and Delaware Trustee
---------------------------------------------------------------
Generally.
---------
Each Regular Trustee and the Delaware Trustee (unless the Institutional
Trustee also acts as Delaware Trustee) shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
Authorized Officers.
Section 5.5 Regular Trustees.
----------------
The initial Regular Trustees shall be:
^
^
^
(a) Except as expressly set forth in this Declaration and except if a
meeting of the Regular Trustees is called with respect to any matter over which
the Regular Trustees have power to act, any power of the Regular Trustees may be
exercised by, or with the consent of, any one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any Regular
Trustee is authorized to execute on behalf of the Trust any documents which the
Regular Trustees have the power and authority to cause the Trust to execute
pursuant to Section 3.6: and
(c) a Regular Trustee may, by power of attorney consistent with applicable
law, delegate to any other natural person over the age of 21 his or her power
for the purposes of
27
signing any documents which the Regular Trustees have power and authority to
execute or cause the Trust to execute pursuant to Section 3.6.
Section 5.6 Delaware Trustee.
----------------
The initial Delaware Trustee shall be: ^ .
Section 5.7 Appointment, Removal and Resignation of Trustees.
------------------------------------------------
(a) Subject to Section 5.7(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of any Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the Holders
of a Majority in liquidation amount of the Common Securities voting as
a class at a meeting of the Holders of the Common Securities.
(b) (i) the Trustee that acts as Institutional Trustee shall not be
removed in accordance with Section 5.7(a) until a successor Institutional
Trustee (a "Successor Institutional Trustee") has been an appointed and has
accepted such appointment by written instrument executed by such Successor
Institutional Trustee and delivered to the Regular Trustees and the Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall not be
removed in accordance with Section 5.7(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under Sections
5.2 and 5.4 (a "Successor Delaware Trustee") has been appointed and has
accepted such appointment by written instrument executed by such
Successor Delaware Trustee and delivered to the Regular Trustees and
the Sponsor.
(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or resignation.
Any Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing signed by the Trustee and delivered to
the Sponsor and the Trust, which resignation shall take effect upon such
delivery or upon such later date as is specified therein; provided, however,
that:
(i) No such resignation of the Trustee that acts as the
Institutional Trustee shall be effective:
(A) Until a Successor Institutional Trustee has been appointed
and has accepted such appointment by instrument executed by such
Successor Institutional Trustee and delivered to the Trust, the
Sponsor and the resigning Institutional Trustee; or
(B) Until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the Holders of
the Securities; and
28
(ii) no such resignation of the Trustee that acts as 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.
(d) The Holders of the Common Securities shall use their best efforts to
promptly appoint a Successor Institutional Trustee or Successor Delaware
Trustee, as the case may be, if the Institutional Trustee or the Delaware
Trustee delivers an instrument of resignation in accordance with this Section
5.7.
(e) If no Successor Institutional Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this Section
5.7 within 60 days after delivery of an instrument of resignation or removal,
the Institutional Trustee or Delaware Trustee resigning or being removed, as
applicable, may petition any court of competent jurisdiction for appointment of
a Successor Institutional Trustee or Successor Delaware Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper and
prescribe, appoint a Successor Institutional Trustee or Successor Delaware
Trustee, as the case may be.
(f) No Institutional Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Institutional Trustee or Successor
Delaware Trustee, as the case may be.
Section 5.8 Vacancies among Trustees.
------------------------
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees is
increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Regular Trustees or, if there
are more than two, a majority of the Regular Trustees shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be filled with a
Trustee appointed in accordance with Section 5.7.
Section 5.9 Effect of Vacancies.
-------------------
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to annul the Trust. Whenever a vacancy in the number of Regular
Trustees shall occur, until such vacancy is filled by the appointment of a
Regular Trustee in accordance with Section 5.7, the Regular Trustees in office,
regardless of their number, shall have all the powers granted to the Regular
Trustees and shall discharge all the duties imposed upon the Regular Trustees by
this Declaration.
Section 5.10 Meetings.
---------
If there is more than one Regular Trustee, meetings of the Regular Trustees
shall be held from time to time upon the call of any Regular Trustee. Regular
meetings of the Regular Trustees may be held at a time and place fixed by
resolution of the Regular Trustees. Notice of any in-person meetings of the
Regular Trustees shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 48
hours
29
before such meeting. Notice of any telephonic meetings of the Regular
Trustee or any committee thereof shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight courier) not
less than 24 hours before a meeting. Notices shall contain a brief statement of
the time, place and anticipated purposes of the meeting. The presence (whether
in person or by telephone) of a Regular Trustee at a meeting shall constitute a
waiver of notice of such meeting except where a Regular Trustee attends a
meeting for the express purpose of objecting to the transaction of any activity
on the ground that the meeting has not been lawfully called or convened. Unless
provided otherwise in this Declaration, any action of the Regular Trustees may
be taken at a meeting by vote of a majority of the Regular Trustees present
(whether in person or by telephone) and eligible to vote with respect to such
matter, provided that a Quorum is present, or without a meeting by the unanimous
written consent of the Regular Trustees. In the event there is only one Regular
Trustee, any and all action of such Regular Trustee shall be evidenced by a
written consent of such Regular Trustee.
Section 5.11 Delegation of Power.
-------------------
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
3.6; and
(b) the Regular Trustees shall have power to delegate from time to time
to such of their number or to officers of the Trust the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Regular Trustees or otherwise as the Regular Trustees may deem expedient,
to the extent such delegation is not prohibited by applicable law or contrary to
the provisions of the Trust, as set forth herein.
Section 5.12 Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business.
--------
Any Person into which the Institutional Trustee or the Delaware Trustee,
as the case may be, may be merged or converted or with which either may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Institutional Trustee or the Delaware Trustee, as the
case may be, shall be a party, or any Person succeeding to all or substantially
all the corporate trust business of the Institutional Trustee or the Delaware
Trustee, as the case may be, shall be the successor of the Institutional Trustee
or the Delaware Trustee, as the case may be, hereunder, provided such Person
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto; provided, however, such successor shall notify the Sponsor and
the Trust promptly of its succession.
30
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions.
-------------
Holders shall receive Distributions in accordance with the applicable terms
of the relevant Holder's Securities. Distributions shall be made on the Trust
Preferred Securities and the Common Securities in accordance with the
preferences set forth in their respective terms. If and to the extent that the
Sponsor makes a payment of interest (including Compounded Interest (as defined
in the Indenture) and Additional Interest (as defined in the Indenture)),
premium and/or principal on the Debentures held by the Institutional Trustee
(the amount of any such payment being a "Payment Amount"), the Institutional
Trustee shall and is directed, to the extent funds are available for that
purpose, to make a distribution (a "Distribution") of the Payment Amount to
Holders.
ARTICLE VII
ISSUANCE OF SECURITIES
Section 7.1 General Provisions Regarding Securities.
---------------------------------------
(a) The Regular Trustees shall on behalf of the Trust issue one class of
[convertible] Trust Preferred Securities representing undivided beneficial
interests in the assets of the Trust having such terms as are set forth in Annex
I (the "Trust Preferred Securities") and one class of [convertible] common
securities representing undivided beneficial interests in the assets of the
Trust having such terms as are set forth in Annex I (the "Common Securities").
The Trust shall issue no securities or other interests in the assets of the
Trust other than the Trust Preferred Securities and the Common Securities.
(b) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(c) Upon issuance of the Trust Preferred Securities as provided in this
Declaration, the Trust Preferred Securities so issued shall be deemed to be
validly issued, fully paid and non-assessable.
(d) Every Person, by virtue of having become a Holder or a Trust Preferred
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Declaration.
Section 7.2 Execution and Authentication.
----------------------------
(a) The Certificates shall be signed on behalf of the Trust by a Regular
Trustee. In case any Regular Trustee of the Trust who shall have signed any of
the Securities shall cease to be such Regular Trustee before the Certificates so
signed shall be delivered by the Trust, such Certificates nevertheless may be
delivered as though the person who signed such Certificates had
31
not ceased to be such Regular Trustee; and any Certificate may be signed on
behalf of the Trust by such persons who, at the actual date of execution of such
Security, shall be the Regular Trustees of the Trust, although at the date of
the execution and delivery of the Declaration any such person was not such a
Regular Trustee.
(b) One Regular Trustee shall sign the Trust Preferred Securities and the
Common Securities for the Trust by manual or facsimile signature. Unless
otherwise determined by the Trust, such signature shall, in the case of Common
Securities, be a manual signature.
A Trust Preferred Security shall not be valid until authenticated by the
manual signature of an authorized signatory of the Institutional Trustee. The
signature shall be conclusive evidence that the Trust Preferred Security has
been authenticated under this Declaration.
Upon a written order of the Trust signed by one Regular Trustee, the
Institutional Trustee shall authenticate the Trust Preferred Securities for
original issue.
The Institutional Trustee may appoint, with the consent of the Regular
Trustees, an authenticating agent acceptable to the Trust to authenticate Trust
Preferred Securities. An authenticating agent may authenticate Trust Preferred
Securities whenever the Institutional Trustee may do so. Each reference in this
Declaration to authentication by the Institutional Trustee includes
authentication by such agent. An authenticating agent has the same rights as the
Institutional Trustee to deal with the Company or an Affiliate of the Company.
Section 7.3 Form and Dating.
---------------
The Trust Preferred Securities and the Institutional Trustee's certificate
of authentication shall be substantially in the form of Exhibit A-1 and the
Common Securities shall be substantially in the form of Exhibit A-2, each of
which is hereby incorporated in and expressly made a part of this Declaration.
Certificates may be printed, lithographed or engraved or may be produced in any
other manner as is reasonably acceptable to the Regular Trustees, as evidenced
by their execution thereof. The Securities may have letters, numbers, notations
or other marks of identification or designation and such legends or endorsements
required by law, stock exchange or quotation system rule, agreements to which
the Trust is subject, if any, or usage (provided that any such notation, legend
or endorsement is in a form reasonably acceptable to the Trust). The Trust at
the direction of the Sponsor shall furnish any such legend not contained in
Exhibit A-1 or A-2 to the Institutional Trustee in writing. Each Trust
Preferred Security Certificate shall be dated the date of its authentication.
The terms and provisions of the Securities set forth in Annex I and the forms of
Securities set forth in Exhibits A-1 and A-2 are part of the terms of this
Declaration and to the extent applicable, the Institutional Trustee and the
Sponsor, by their execution and delivery of this Declaration, expressly agree to
such terms and provisions and to be bound thereby.
Section 7.4 Paying Agent [and Conversion Agent].
----------------------------------
In the event that the Trust Preferred Securities are not in book-entry only
form, the Trust shall maintain in the Borough of Manhattan, City of New York,
State of New York, an office or agency where the Trust Preferred Securities may
be presented for payment ("Paying Agent") and a Registrar (as defined below)
[and a Conversion Agent (as defined below)]. The Trust shall
32
maintain a Paying Agent[, an office or agency where Securities may be presented
for conversion ("Conversion Agent")] and an office or agency where Securities
may be presented for registration of transfer or exchange ("Registrar"). The
Registrar shall keep a register of the Trust Preferred Securities and of the
transfer and exchange thereof. The Trust may appoint the Paying Agent, Registrar
[and the Conversion Agent] and may appoint one or more additional paying agents,
one or more additional registrars [and one or more additional conversion agents]
in such other locations as it shall determine. The term "Paying Agent" includes
any additional paying agent, the term "Registrar" includes any additional
registrar[, and the term "Conversion Agent" includes any additional conversion
agent]. The Trust may change any Paying Agent, Registrar or [Conversion Agent]
without prior notice to any Holder. The Trust shall notify the Institutional
Trustee in writing of the name and address of any Agent not a party to this
Declaration. If the Trust fails to appoint or maintain another entity as Paying
Agent, Registrar [or Conversion Agent], the Institutional Trustee shall act as
such. The Trust or any of its Affiliates may act as Paying Agent, Registrar or
[Conversion Agent]. The Trust shall act as Paying Agent, Registrar and
[Conversion Agent] for the Common Securities. The Paying Agent, Registrar and
[Conversion Agent] shall be entitled to the rights and protections extended to
the Institutional Trustee when acting in such capacity.
The Trust initially appoints the Institutional Trustee, acting through its
Corporate Trust Office in The City of New York, as [Conversion Agent], Registrar
and Paying Agent for the Trust Preferred Securities.
ARTICLE VIII
TERMINATION OF TRUST
Section 8.1 Termination of Trust.
--------------------
(a) The Trust shall dissolve:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor; upon receipt by the Trust of the
consent of the Holders of at least a Majority in liquidation amount of the
outstanding Securities voting together as a single class to dissolve the
Trust and file a certificate of cancellation with respect thereto, or the
revocation of the Sponsor's charter and the expiration of 90 days after
the date of revocation without a reinstatement thereof;
(iii) upon the entry of a decree of judicial dissolution of the
Sponsor or the Trust;
(iv) when all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall have
been paid to the Holders in accordance with the terms of the Securities;
33
(v) upon the occurrence and continuation of a Special Event
pursuant to which the Trust shall have been dissolved in accordance with
the terms of the Securities and, after satisfaction of liabilities of
creditors (whether by payment or reasonable provision for payment), when
all of the Debentures held by the Institutional Trustee shall have been
distributed to the Holders of Securities in exchange for all of the
Securities;
[(vi) upon the conversion of all outstanding Trust Preferred
Securities into Bay View Common Stock or other cash, securities or
property, as the case may be;]
(vii) the expiration of the term of the Trust on ; or
(viii) before the issuance of any Securities, with the consent of all
of the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event referred to
in Section 8.1(a), after satisfaction of liabilities of creditors (whether by
payment or reasonable provision for payment), the Trustees shall file a
certificate of cancellation with the Secretary of State of the State of Delaware
and the Trust shall terminate.
(c) The provisions of Article 10 shall survive the termination of the
Trust.
ARTICLE IX
TRANSFER OF INTERESTS
Section 9.1 Transfer of Securities.
----------------------
(a) Where Trust Preferred Securities are presented to a Registrar with a
request to register the transfer thereof or to exchange them for an equal number
of Trust Preferred Securities represented by different certificates, the
Registrar shall register the transfer or make the exchange. To permit
registrations of transfers and exchanges, the Trust shall issue and the
Institutional Trustee shall authenticate certificates for the Trust Preferred
Securities at the Registrar's request. Securities may only be transferred, in
whole or in part, in accordance with the terms and conditions set forth in this
Declaration and in the terms of the Securities. Any transfer or purported
transfer of any Security not made in accordance with this Declaration shall be
null and void.
(b) Subject to this Article IX, Trust Preferred Securities shall be freely
transferable.
(c) Subject to this Article IX, the Sponsor and any Related Party may only
transfer Common Securities to the Sponsor or a Related Party of the Sponsor;
provided that, any such transfer is subject to the condition precedent that the
transferor obtain the written opinion of nationally recognized independent
counsel experienced in such matters that such transfer would not cause more than
an insubstantial risk that:
(i) the Trust would not be classified for United States federal
income tax purposes as a grantor trust; and
34
(ii) the Trust would be an Investment Company required to register
under the Investment Company Act or the transferee would become an
Investment Company required to register under the investment Company Act.
Section 9.2 Transfer of Certificates.
------------------------
The Regular Trustees shall provide for the registration of Certificates and
of transfers of Certificates, which will be effected without charge but only
upon payment (with such indemnity as the Regular Trustees may require) in
respect of any tax or other government charges that may be imposed in relation
to it. Upon surrender for registration of transfer of any Certificate, the
Regular Trustees shall cause one or more new Certificates to be issued in the
name of the designated transferee or transferees. Every Certificate surrendered
for registration of transfer or exchange, [or for conversion] or redemption,
shall be accompanied by a written instrument of transfer in form satisfactory to
the Registrar and Regular Trustees duly executed by the Holder or such Holder's
attorney duly authorized in writing. Each Certificate surrendered for
registration of transfer or exchange, or for redemption [or conversion], shall
be canceled by the Regular Trustees (in the case of Common Securities) or by the
Institutional Trustee (in the case of Trust Preferred Securities). A transferee
of a Certificate shall be entitled to the rights and subject to the obligations
of a Holder hereunder upon the receipt by such transferee of a Certificate. By
acceptance of a Certificate, each transferee shall be deemed to have agreed to
be bound by this Declaration.
The Regular Trustees will not be required to register the transfer of or
exchange any Securities during the period beginning at the opening of business
15 days before the selection of any Securities to be redeemed (unless all of the
outstanding Securities are called for redemption) and ending at the close of
business on the day of that selection or register the transfer of or exchange
any Securities, or portions thereof, called for redemption, except the
unredeemed portion of any Security being redeemed in part. In the event that
any Securities are not held in book-entry form, Holders will be required to
surrender certificates evidencing such Securities to a Paying Agent [or
Conversion Agent] in order to receive payments due upon redemption [or in order
to convert such Securities, respectively].
Section 9.3 Deemed Security Holders.
-----------------------
The Trustees may treat the Person in whose name any Certificate shall be
registered on the books and records of the Trust as the sole holder of such
Certificate and of the Securities represented by such Certificate for purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, to the extent permitted by applicable law, shall not be bound to
recognize any equitable or other claim to or interest in such Certificate or in
the Securities represented by such Certificate on the part of any Person,
whether or not the Trust shall have actual or other notice thereof.
Section 9.4 Book Entry Interests.
--------------------
Unless otherwise specified in the terms of the Trust Preferred Securities,
the Trust Preferred Securities Certificates, on original issuance, will be
issued in the form of one or more fully registered, global Trust Preferred
Security Certificates (each a "Global Certificate"), to be
35
delivered to DTC, the initial Clearing Agency, by, or on behalf of, the Trust.
Such Global Certificates shall initially be registered on the books and records
of the Trust in the name of Cede & Co., the nominee of DTC, and no Trust
Preferred Security Beneficial Owner will receive a definitive Trust Preferred
Security Certificate representing such Trust Preferred Security Beneficial
Owner's interests in such Global Certificates, except as provided in Section
9.7. Unless and until definitive, fully registered Trust Preferred Security
Certificates (the "Definitive Trust Preferred Security Certificates") have been
issued to the Trust Preferred Security Beneficial Owners pursuant to Section
9.7:
(a) the provisions of this Section 9.4 shall be in full force and effect;
(b) the Trust and the Trustees shall be entitled to deal with the
Clearing Agency for all purposes of this Declaration (including the payment of
Distributions on the Global Certificates and receiving approvals, votes or
consents hereunder) as the Holder of the Trust Preferred Securities and the sole
holder of the Global Certificates and shall have no obligation to the Trust
Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4 conflict with
any other provisions of this Declaration, the provisions of this Section 9.4
shall control; and
(d) the rights of the Trust Preferred Security Beneficial Owners shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Trust Preferred Security
Beneficial Owners and the Clearing Agency and/or the Clearing Agency
Participants, including receiving and transmitting payments of Distributions on
the Global Certificates to such Clearing Agency Participants. DTC will make book
entry transfers among the Clearing Agency Participants; provided, that solely
for the purposes of determining whether the Holders of the requisite amount of
Trust Preferred Securities have voted on any matter provided for in this
Declaration, so long as Definitive Trust Preferred Security Certificates have
not been issued, the Trustees may conclusively rely on, and shall be protected
in relying on, any written instrument (including a proxy) delivered to the
Trustees by the Clearing Agency setting forth the Trust Preferred Security
Beneficial Owners' votes or assigning the right to vote on any matter to any
other Persons either in whole or in part.
Section 9.5 Notices to Clearing Agency.
--------------------------
Whenever a notice or other communication to the Trust Preferred Security
Holders is required under this Declaration, unless and until Definitive Trust
Preferred Security Certificates shall have been issued to the Trust Preferred
Security Beneficial Owners pursuant to Section 9.7, the Regular Trustees shall
give all such notices and communications specified herein to be given to the
Trust Preferred Security Holders to the Clearing Agency, and shall have no
notice obligations to the Trust Preferred Security Beneficial Owners.
Section 9.6 Appointment of Successor Clearing Agency.
----------------------------------------
If any Clearing Agency elects to discontinue its services as securities
depositary with respect to the Trust Preferred Securities, the Regular Trustees
may, in their sole discretion, appoint a successor Clearing Agency with respect
to such Trust Preferred Securities.
36
Section 9.7 Definitive Trust Preferred Security Certificates.
------------------------------------------------
If:
(a) the Clearing Agency notifies the Trust that it is unwilling or unable
to continue as Clearing Agency for the Global Certificates or if at any time the
Clearing Agency ceases to be a clearing agency registered as such under the
Exchange Act and no successor Clearing Agency shall have been appointed within
90 days of such notification or of the Trust becoming aware of the Clearing
Agency's ceasing to be so registered, as the case may be; or
(b) the Regular Trustees elect, in their sole discretion but after
consultation with the Sponsor, to terminate the book entry system through the
Clearing Agency with respect to the Trust Preferred Securities, and any Regular
Trustee executes and delivers to the Institutional Trustee an order to the
effect that the Global Certificates will be exchangeable for Definitive Trust
Preferred Securities Certificates; or
(c) an Event of Default has occurred and is continuing,
then:
(d) Definitive Trust Preferred Security Certificates shall be prepared by
------------------------
the Regular Trustees on behalf of the Trust with respect to such Trust Preferred
Securities; and
(e) upon surrender of the Global Certificates by the Clearing Agency,
accompanied by registration instructions, the Regular Trustees shall cause
Definitive Trust Preferred Security Certificates to be delivered to Trust
------------------------ -----
Preferred Security Beneficial Owners in accordance with the instructions of the
------------------
Clearing Agency. Neither the Trustees nor the Trust shall be liable for any
delay in delivery of such instructions and each of them may conclusively rely on
and shall be protected in relying on, said instructions of the Clearing Agency.
The Definitive Trust Preferred Security Certificates shall be printed,
------------------------
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Regular Trustees, as evidenced by the execution thereof by any
Regular Trustee, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements as the Regular
Trustees may deem appropriate, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which Trust Preferred Securities may be listed, or to
conform to usage.
Section 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
-------------------------------------------------
If:
(a) any mutilated Certificates should be surrendered to the Regular
Trustees, or, in the case of Trust Preferred Securities, the Institutional
Trustee, and if the Regular Trustees and, in the case of Trust Preferred
Securities, the Institutional Trustee shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Institutional Trustee and the Regular
Trustees such security or indemnity as may be required by them to keep each of
them and the Sponsor harm-
37
less, then, in the absence of notice that suchCertificate shall have been
acquired by a bona fide purchaser, any Regular Trustee on behalf of the Trust
shall execute and deliver or, in the case of Trust Preferred Securities, any
Regular Trustee shall execute and the Institutional Trustee shall authenticate
and deliver, in exchange for, or in lieu of, any such mutilated, destroyed, lost
or stolen Certificate, a new Certificate of like denomination. In connection
with the issuance of any new Certificate under this Section 9.8, the
Institutional Trustee or the Regular Trustees may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith and any other expenses (including the fees and expenses of
the Institutional Trustee) connected therewith. Any duplicate Certificate issued
pursuant to this Section shall constitute conclusive evidence of an ownership
interest in the relevant Securities, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF
SECURITIES, TRUSTEES OR OTHERS
Section 10.1 Liability.
---------
(a) Except as expressly set forth in this Declaration, the Securities
Guarantees and the terms of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the Holders of the Securities
which shall be made solely from assets of the Trust; or
(ii) be required to pay to the Trust or to any Holder of Securities
any deficit upon dissolution of the Trust or otherwise.
(b) The Company shall be liable for all of the debts and obligations of
the Trust (other than with respect to the Securities) to the extent not
satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the Holders of
the Trust Preferred Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
Section 10.2 Exculpation.
-----------
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Trust or any Covered Person for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence or willful
misconduct (except as otherwise provided, in
38
the case of the Institutional Trustee, in the Trust Indenture Act) with respect
to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which Distributions to
Holders of Securities might properly be paid.
Section 10.3 Fiduciary Duty.
--------------
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity (other than the
duties imposed on the Institutional Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between any
Covered Persons; or
(ii) whenever this Declaration or any other agreement contemplated
herein or therein provides that an Indemnified Person shall act in a manner
that is or provides terms that are, fair and reasonable to the Trust or any
Holder of Securities, the Indemnified Person shall resolve such conflict of
interest, take such action or provide such terms, considering in each case
the relative interest of each party (including its own interest) to such
conflict, agreement, transaction or situation and the benefits and burdens
relating to such interests, any customary or accepted industry practices,
and any applicable generally accepted accounting practices or principles.
In the absence of bad faith by the Indemnified Person, the resolution,
action or term so made, taken or provided by the Indemnified Person shall
not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person
at law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority the
Indemnified Person shall be entitled to consider such interests and
factors as it desires, including its own interests, and shall have no
duty or obligation to give any consideration to any interest of or
factors affecting the Trust or any other Person; or
39
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or
by applicable law.
Section 10.4 Indemnification.
---------------
(a) (i) The Sponsor shall indemnify, to the full extent permitted by law,
any Company Indemnified Person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Trust) by reason of the fact that he is or was a
Company Indemnified Person against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Trust, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did not act in good faith and in
a manner which he reasonably believed to be in or not opposed to the best
interests of the Trust, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that his conduct was unlawful.
(ii) The Sponsor shall indemnify, to the full extent permitted by law,
any Company Indemnified Person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by or
in the right of the Trust to procure a judgment in its favor by reason of
the fact that he is or was a Company Indemnified Person against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Trust and except that no such
indemnification shall be made in respect of any claim, issue or matter as
to which such Company Indemnified Person shall have been adjudged to be
liable to the Trust unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such Company
Indemnified Person is fairly and reasonably entitled to indemnity for such
expenses which such Court of Chancery or such other court shall deem
proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action
without prejudice or the settlement of an action without admission of
liability) in defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 10.4(a), or in defense of any
claim, issue or matter therein, he shall be indemnified, to the full extent
permitted by law, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this Section
10.4(a) (unless ordered by a court) shall be made by the Sponsor only as
authorized in the
40
specific case upon a determination that indemnification of the Company
Indemnified Person is proper in the circumstances because he has met the
applicable standard of conduct set forth in paragraphs (i) and (ii). Such
determination shall be made (1) by the Regular Trustees by a majority vote
of a quorum consisting of such Regular Trustees who were not parties to
such action, suit or proceeding, (2) if such a quorum is not obtainable,
or, even if obtainable, if a quorum of disinterested Regular Trustees so
directs, by independent legal counsel in a written opinion, or (3) by the
Common Security Holder of the Trust.
(v) Expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 10.4(a) shall be paid by the Sponsor in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Company Indemnified Person to repay
such amount if it shall ultimately be determined that he is not entitled to
be indemnified by the Sponsor as authorized in this Section 10.4(a).
Notwithstanding the foregoing, no advance shall be made by the Sponsor if a
determination is reasonably and promptly made (i) by the Regular Trustees
by a majority vote of a quorum of disinterested Regular Trustees, (ii) if
such a quorum is not obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent legal counsel in
a written opinion, or (iii) the Common Security Holder of the Trust, that,
based upon the facts known to the Regular Trustees, counsel or the Common
Security Holder at the time such determination is made, such Company
Indemnified Person acted in bad faith or in a manner that such Company
Indemnified Person did not believe to be in or not opposed to the best
interests of the Trust, or, with respect to any criminal proceeding, that
such Company Indemnified Person believed or had reasonable cause to believe
his conduct was unlawful. In no event shall any advance be made in
instances where the Regular Trustees, independent legal counsel or Common
Security Holder reasonably determine that such person deliberately breached
his duty to the Trust or its Common or Trust Preferred Security Holders.
(vi) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 10.4(a) shall not
be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors of the Sponsor
or Trust Preferred Security Holders of the Trust or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office. All rights to indemnification under this Section
10.4(a) shall be deemed to be provided by a contract between the Sponsor
and each Company Indemnified Person who serves in such capacity at any time
while this Section 10.4(a) is in effect. Any repeal or modification of this
Section 10.4(a) shall not affect any rights or obligations then existing.
(vii) The Sponsor or the Trust may purchase and maintain insurance on
behalf of any Person who is or was a Company Indemnified Person against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such,
41
whether or not the Sponsor would have the power to indemnify him against
such liability under the provisions of this Section 10.4(a)
(viii) For purposes of this Section 10.4(a), references to "the Trust"
shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed in
a consolidation or merger, so that any person who is or was a director,
trustee, officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee,
officer, employee or agent of another entity, shall stand in the same
position under the provisions of this Section 10.4(a) with respect to the
resulting or surviving entity as he would have with respect to such
constituent entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 10.4(a) shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a
Company Indemnified Person and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(b) The Sponsor agrees to indemnify, to the fullest extent permitted by
law, (i) the Institutional Trustee, (ii) the Delaware Trustee, (iii) the Paying
Agent, [(iv) the Conversion Agent,] (v) any Affiliate of the Institutional
Trustee, and the Delaware Trustee, and (vi) any officers, directors,
shareholders, members, partners, employees, representatives, custodians,
nominees or agents of the Institutional Trustee, the Paying Agent, [the
Conversion Agent] and the Delaware Trustee (each of the Persons in (i) through
(vi) being referred to as a "Fiduciary Indemnified Person") for, and to hold
each Fiduciary 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 or 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 provisions of this Section 10.4(b) shall survive the satisfaction
and discharge of this Declaration or the resignation or removal of the Delaware
Trustee or the Institutional Trustee, as the case may be.
Section 10.5 Outside Business.
----------------
Any Covered Person, the Sponsor, the Delaware Trustee and the Institutional
Trustee may engage in or possess an interest in other business ventures of any
nature or description, independently or with others, similar or dissimilar to
the business of the Trust, and the Trust and the Holders of Securities shall
have no rights by virtue of this Declaration in and to such independent ventures
or the income or profits derived therefrom, and the pursuit of any such venture,
even if competitive with the business of the Trust, shall not be deemed wrongful
or improper. No Covered Person, the Sponsor, the Delaware Trustee, or the
Institutional Trustee shall be obligated to present any particular investment or
other opportunity to the Trust even if such opportunity is of a character that,
if presented to the Trust, could be taken by the Trust, and any Covered Person
shall have the right to take for its own account (individually or as a partner
or fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Covered Person, the Delaware Trustee and the Institutional
Trustee may engage or be interested in any financial or other transaction with
the Sponsor or any Affiliate of the Sponsor, or may act
42
as depositary for, trustee or agent for, or act on any committee or body of
holders of, securities or other obligations of the Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
Section 11.1 Fiscal Year.
-----------
The fiscal year ("Fiscal Year") of the Trust shall be the calendar year, or
such other year as is required by the Code.
Section 11.2 Certain Accounting Matters.
--------------------------
(a) At all times during the existence of the Trust, the Regular Trustees
shall keep, or cause to be kept, full books, records and supporting documents,
which shall reflect in detail, each transaction of the Trust. The books of
account shall be maintained on the accrual method of accounting in compliance
with generally accepted accounting principles, consistently applied. The Trust
shall use the accrual method of accounting for the United States federal income
tax purposes. The financial statements of the Trust for each of its Fiscal Years
shall be audited in accordance with generally accepted auditing standards by a
firm of independent certified public accountants selected by the Regular
Trustees.
(b) The Regular Trustees shall cause to be prepared and delivered to each
of the Holders of Securities and the other Trustees, within 90 days after the
end of each Fiscal Year of the Trust, annual financial statements of the Trust,
including a balance sheet of the Trust as of the end of such Fiscal Year, and
the related statement of income or loss for such Fiscal Year.
(c) The Regular Trustees shall cause to be duly prepared and delivered to
each of the Holders of Securities, any annual United States federal income tax
information statement, required by the Code, containing such information with
regard to the Securities held by each Holder as is required by the Code and the
Treasury Regulations. Notwithstanding any right under the Code to deliver any
such statement at a later date, the Regular Trustees shall endeavor to deliver
all such statements within 30 days after the end of each Fiscal Year of the
Trust.
(d) The Regular Trustees shall cause to be duly prepared and filed with the
appropriate taxing authority, an annual United States federal income tax return,
on a Form 1041 or such other form required by United States federal income tax
law, and any other annual income tax returns required to be filed by the Regular
Trustees on behalf of the Trust with any state or local taxing authority.
Section 11.3 Banking.
-------
The Trust shall maintain one or more bank accounts in the name and for the
sole benefit of the Trust; provided, however, that all payments of funds in
respect of the Debentures held by the Institutional Trustee shall be made
directly to the Institutional Trustee Account and no other funds of the Trust
shall be deposited in the Institutional Trustee Account. The sole signatories
for
43
such accounts shall be designated by any of the Regular Trustees; provided,
however, that the Institutional Trustee shall designate the signatories for the
Institutional Trustee Account.
Section 11.4 Withholding.
-----------
The Trust and the Regular Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Trust shall
request, and the Holders shall provide to the Trust, such forms or certificates
as are necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Regular Trustees shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is properly
established by a Holder, shall remit amounts withheld with respect to the Holder
to applicable jurisdictions. To the extent that the Trust is required to
withhold and pay over any amounts to any authority with respect to distributions
or allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of any
claimed over-withholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual Distributions made, the Trust may reduce subsequent Distributions by
the amount of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
Section 12.1 Amendments.
----------
(a) Except as otherwise provided in this Declaration or by any applicable
terms of the Securities, this Declaration may only be amended by a written
instrument approved and executed by the Regular Trustees (or, if there are more
than two Regular Trustees a majority of the Regular Trustees) and together with:
(i) if the amendment affects the rights, powers, duties, obligations or
immunities of the Institutional Trustee, the Institutional Trustee;
(ii) if the amendment affects the rights, powers, duties, obligations or
immunities of the Delaware Trustee, the Delaware Trustee; and
(iii) if the amendment affects the rights, powers, duties, obligations or
immunities of the Sponsor, the Sponsor.
(b) no amendment shall be made, and any such purported amendment shall be
void and ineffective:
(i) unless, in the case of any proposed amendment, the Institutional
Trustee shall have first received an Officers' Certificate from each of the
Trust and the Sponsor that such amendment is permitted by, and conforms to,
the terms of this Declaration (including the terms of the Securities);
44
(ii) unless, in the case of any proposed amendment which affects the
rights, powers, duties, obligations or immunities of the Institutional
Trustee, the Institutional Trustee shall have first received:
(A) an Officers' Certificate from each of the Trust and the Sponsor
that such amendment is permitted by, and conforms to, the terms of this
Declaration (including the terms of the Securities); and
(B) an opinion of counsel (who may be counsel to the Sponsor or the
Trust) that such amendment is permitted by, and conforms to, the terms of
this Declaration (including the terms of the Securities); and
(iii) to the extent the result of such amendment would be to:
(A) cause the Trust to be classified for purposes of United States
federal income taxation as other than a grantor trust;
(B) reduce or otherwise adversely affect the powers of the
Institutional Trustee in contravention of the Trust Indenture Act; or
(C) cause the Trust to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(c) at such time after the Trust has issued any Securities that remain
outstanding, any amendment that would adversely affect the rights, privileges or
preferences of any Holder of Securities may be effected only with such
additional requirements as may be set forth in the terms of such Securities;
(d) (c) and this Section 12.1 shall not be amended without the consent of
all of the Holders of the Securities;
(e) Article 4 shall not be amended without the consent of the Holders of a
Majority in liquidation amount of the Common Securities;
(f) the rights of the Holders of the Common Securities under Article 5 to
increase or decrease the number of and appoint and remove Trustees shall not be
amended without the consent of the Holders of a Majority in liquidation amount
of the Common Securities; and
(g) notwithstanding Section 12.1(c), this Declaration and the Securities
may be amended without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration that may be
defective or inconsistent with any other provision of this Declaration or
make any other provisions with respect to matters or questions arising
under this Declaration;
(iii) add to the covenants, restrictions or obligations of the Sponsor;
45
(iv) modify, eliminate or add to any provisions of this Declaration to
the extent deemed necessary or advisable by any of the Regular Trustees to
ensure that the Trust will be classified for United States federal income
tax purposes as a grantor trust or to ensure that the Trust will not be
required to register as an Investment Company under the Investment Company
Act; and
(v) to conform to any change in Rule 3a-5 or written change in
interpretation or application of Rule 3a-5 by any legislative body, court,
government agency or regulatory authority which amendment does not have a
material adverse effect on the right, preferences or privileges of the
Holders.
Section 12.2 Meetings of the Holders of Securities; Action by Written
--------------------------------------------------------
Consent.
-------
(a) Meetings of the Holders of any class of Securities may be called at any
time by the Regular Trustees (or as provided in the terms of the Securities) to
consider and act on any matter on which Holders of such class of Securities are
entitled to act under the terms of this Declaration, the terms of the Securities
or the rules of any stock exchange or quotation system or market on which the
Trust Preferred Securities are listed or admitted for trading. The Regular
Trustees shall call a meeting of the Holders of such class if directed to do so
by the Holders of at least 10% in liquidation amount of the Securities of such
class. Such direction shall be given by delivering to the Regular Trustees one
or more calls in a writing stating that the signing Holders of Securities wish
to call a meeting and indicating the general or specific purpose for which the
meeting is to be called. Any Holders of Securities calling a meeting shall
specify in writing the Security Certificates held by the Holders of Securities
exercising the right to call a meeting and only those Securities specified shall
be counted for purposes of determining whether the required percentage set forth
in the second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the Securities,
the following provisions shall apply to meetings of Holders of Securities:
(i) notice of any such meeting shall be given to all the Holders of
Securities having a right to vote thereat at least 7 days and not more than
60 days before the date of such meeting. Whenever a vote, consent or
approval of the Holders of Securities is permitted or required under this
Declaration or the rules of any stock exchange or quotation system or
market on which the Trust Preferred Securities are listed or admitted for
trading, such vote, consent or approval may be given at a meeting of the
Holders of Securities. Any action that may be taken at a meeting of the
Holders of Securities may be taken without a meeting if a consent in
writing setting forth the action so taken is signed by the Holders of
Securities owning not less than the minimum amount of Securities in
liquidation amount that would be necessary to authorize or take such action
at a meeting at which all Holders of Securities having a right to vote
thereon were present and voting. Prompt notice of the taking of action
without a meeting shall be given to the Holders of Securities entitled to
vote who have not consented in writing. The Regular Trustees may specify
that any written ballot submitted to the Security Holders for the purpose
of taking any action without a meeting shall be returned to the Trust
within the time specified by the Regular Trustees;
46
(ii) each Holder of a Security may authorize any Person to act for it by
proxy on all matters in which a Holder of Securities is entitled to
participate, including waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid after the expiration of
11 months from the date thereof unless otherwise provided in the proxy.
Every proxy shall be revocable at the pleasure of the Holder of Securities
executing it. Except as otherwise provided herein, all matters relating to
the giving, voting or validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to proxies, and judicial
interpretations thereunder, as if the Trust were a Delaware corporation and
the Holders of the Securities were stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the Securities shall be conducted
by the Regular Trustees or by such other Person that the Regular Trustees
may designate; and
(iv) unless the Business Trust Act, this Declaration, the terms of the
Securities, the Trust Indenture Act or the listing rules of any stock
exchange or quotation system or market on which the Trust Preferred
Securities are then listed or trading, otherwise provides, the Regular
Trustees, in their sole discretion, shall establish all other provisions
relating to meetings of Holders of Securities, including notice of the
time, place or purpose of any meeting at which any matter is to be voted on
by any Holders of Securities, waiver of any such notice, action by consent
without a meeting, the establishment of a record date, quorum requirements,
voting in person or by proxy or any other matter with respect to the
exercise of any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL
TRUSTEE AND DELAWARE TRUSTEE
Section 13.1 Representations and Warranties of Institutional Trustee.
-------------------------------------------------------
The Trustee that acts as initial Institutional Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Institutional Trustee represents and warrants, as applicable, to
the Trust and the Sponsor at the time of the Successor Institutional Trustee's
acceptance of its appointment as Institutional Trustee that:
(a) the Institutional Trustee is a national banking association with trust
powers, duly organized, validly existing and in good standing, with trust power
and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, the Declaration;
(b) the execution, delivery and performance by the Institutional Trustee of
the Declaration has been duly authorized by all necessary corporate action on
the part of the Institutional Trustee. The Declaration has been duly executed
and delivered by the Institutional Trustee, and it constitutes a legal, valid
and binding obligation of the Institutional Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency and other similar laws affecting creditors' rights
generally and to
47
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law);
(c) the execution, delivery and performance of the Declaration by the
Institutional Trustee does not conflict with or constitute a breach of the
charter or by-laws of the Institutional Trustee; and
(d) no consent, approval or authorization of, or registration with or
notice to, any state or federal banking authority is required for the execution,
delivery or performance by the Institutional Trustee of the Declaration.
Section 13.2 Representations and Warranties of Delaware Trustee.
--------------------------------------------------
The Trustee that acts as initial Delaware Trustee represents and warrants
to the Trust and to the Sponsor at the date of this Declaration, and each
Successor Delaware Trustee represents and warrants to the Trust and the Sponsor
at the time of the Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee that:
(a) The Delaware Trustee is a Delaware corporation, duly organized, validly
existing and in good standing, with full power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of, the
Declaration.
(b) The Delaware Trustee has been authorized to perform its obligations
under the Certificate of Trust and the Declaration. The Declaration under
Delaware law constitutes a legal, valid and binding obligation of the Delaware
Trustee, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, moratorium, insolvency, and other similar
laws affecting creditors' rights generally and to general principles of equity
and the discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
(c) No consent, approval or authorization of, or registration with or
notice to, any Delaware or federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee of the Declaration.
(d) The Delaware Trustee is a natural person who is a resident of the State
of Delaware or, if not a natural person, an entity which has its principal place
of business in the State of Delaware. The Delaware Trustee satisfies for the
Trust the requirements set forth in Section 3807(a) of the Business Trust Act.
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Notices.
-------
All notices provided for in this Declaration shall be in writing, duly
signed by the party giving such notice, and shall be delivered, telecopied or
mailed by first class mail, as follows:
48
(a) if given to the Trust, in care of the Regular Trustees at the Trust's
mailing address set forth below (or such other address as the Trust may give
notice of to the Holders of the Securities):
Bay View Capital I
c/o Bay View Capital Corporation
0000 Xxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
(b) if given to the Delaware Trustee, at the mailing address set forth
below (or such other address as Delaware Trustee may give notice of to the
Holders of the Securities):
^
^
^
Attention: ^
(c) if given to the Institutional Trustee, at the mailing address set forth
below (or such other address as the Institutional Trustee may give notice of to
the Holders of the Securities):
^
^
^
Attention: ^
(d) if given to the Holder of the Common Securities, at the mailing address
of the Sponsor set forth below (or such other address as the Holder of the
Common Securities may give notice to the Trust):
Bay View Capital Corporation
0000 Xxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
(e) if given to any other Holder, at the address set forth on the books and
records of the Trust.
All such notices shall be deemed to have been given when received in
person, delivered by overnight courier, telecopied with receipt confirmed (by
telephone or otherwise) or mailed by first class mail, postage prepaid except
that if a notice or other document is refused delivery or cannot be delivered
because of a changed address of which no notice was given, such notice or other
document shall be deemed to have been delivered on the date of such refusal or
inability to deliver.
49
Section 14.2 Governing Law.
-------------
This Declaration and the rights of the parties hereunder shall be governed
by and interpreted in accordance with the laws of the State of Delaware and all
rights and remedies shall be governed by such laws without regard to principles
of conflict of laws.
Section 14.3 Intention of the Parties.
------------------------
It is the intention of the parties hereto that the Trust be classified for
United States federal income tax purposes as a grantor trust. The provisions of
this Declaration shall be interpreted to further this intention of the parties.
Section 14.4 Headings.
--------
The Table of Contents, Cross-Reference Table and headings contained in this
Declaration are inserted for convenience of reference only and do not affect the
interpretation of this Declaration or any provision hereof.
Section 14.5 Successors and Assigns.
----------------------
Whenever in this Declaration any of the parties hereto is named or referred
to, the successors and assigns of such party shall be deemed to be included, and
all covenants and agreements in this Declaration by the Sponsor and the Trustees
shall bind and inure to the benefit of their respective successors and assigns,
whether so expressed.
Section 14.6 Partial Enforceability.
----------------------
If any provision of this Declaration, or the application of such provision
to any Person or circumstance, shall be held invalid, the remainder of this
Declaration, or the application of such provision to Persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
Section 14.7 Counterparts.
------------
This Declaration may contain more than one counterpart of the signature
page and this Declaration may be executed by the affixing of the signature of
each of the Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
50
IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
-----------------------------------
^, as Regular Trustee
-----------------------------------
^, as Regular Trustee
-----------------------------------
^, as Regular Trustee
^,
as Delaware Trustee
By:
--------------------------------
Name:
Title:
^,
as Institutional Trustee
By:
--------------------------------
Name:
Title:
BAY VIEW CAPITAL CORPORATION,
as Sponsor
By:
--------------------------------
Name:
Title:
51
ANNEX I
TERMS OF
[$^/^%] TRUST PREFERRED SECURITIES
[$^/^%] COMMON SECURITIES
Pursuant to Section 7. 1 of the Amended and Restated Declaration of Trust,
dated as of ^, 199^ (as amended from time to time, the "Declaration"), the
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Trust Preferred Securities and the Common Securities are set
out below (each capitalized term used but not defined herein has the meaning set
forth in the Declaration or, if not defined in such Declaration, as defined in
the Prospectus referred to below):
1. Designation and Number.
(a) TRUST PREFERRED SECURITIES. ^ Trust Preferred Securities of the Trust
with an aggregate liquidation amount with respect to the assets of the Trust of
$^, and a liquidation amount with respect to the assets of $^ per Preferred
Security, are hereby designated for the purposes of identification only as
"[$^/^%] [Convertible] Trust Preferred Securities[, Series ^]" (the "Trust
Preferred Securities"). The Preferred Security Certificates evidencing the Trust
Preferred Securities shall be substantially in the form of Exhibit A-1 to the
Declaration, with such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice or to conform to the rules
of any stock exchange on which the Trust Preferred Securities are listed.
(b) COMMON SECURITIES. ^ Common Securities of the Trust with an aggregate
liquidation amount with respect to the assets of the Trust of $^, and a
liquidation amount with respect to the assets of the Trust of $^ per Common
Security, are hereby designated for the purposes of identification only as
"[$^/^%] Common Securities" (the "Common Securities"). The Common Security
Certificates evidencing the Common Securities shall be in the form of Exhibit A-
2 to the Declaration, with such changes and additions thereto or deletions
therefrom as may be required by ordinary usage, custom or practice.
2. Distributions.
(a) Distributions payable on each Security will be fixed at a rate per
annum of ____% (the "Coupon Rate") of the stated liquidation amount of $^ per
Security, such rate being the rate of interest payable on the Debentures to be
held by the Institutional Trustee. Distributions in arrears for more than one
quarter will bear interest thereon compounded quarterly at the Coupon Rate (to
the extent permitted by applicable law). The term "Distributions" as used herein
includes such cash distributions and any such interest payable unless otherwise
stated. A Distribution is payable only to the extent that payments are made in
respect of the Debentures held by the Institutional Trustee and to the extent
the Institutional Trustee has funds available therefor. The amount of
Distributions payable for any period will be computed for any full quarterly
Distribution period on the basis of a 360-day year of twelve 30-day months, and
for any period
1
shorter than a full quarterly Distribution period for which Distributions are
computed. Distributions will be computed on the basis of the actual number of
days elapsed per 30-day month.
(b) Distributions on the Securities will be cumulative, will accumulate
from ^, 199^, and will be payable quarterly in arrears, on ^, ^, ^ and ^ of each
year, commencing on ^,^ except as otherwise described below. So long as the
Sponsor shall not be in default in the payment of interest on the Debentures,
the Sponsor has the right under the Indenture to defer payments of interest by
extending the interest payment period from time to time on the Debentures for a
period not exceeding 20 consecutive quarters (each an "Extension Period"),
during which Extension Period no interest shall be due and payable on the
Debentures, provided that no Extension Period shall last beyond the date of
maturity or any redemption date of the Debentures. As a consequence of such
deferral, Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accumulate with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly during any
such Extension Period. Prior to the termination of any such Extension Period,
the Sponsor may further extend such Extension Period; provided that such
Extension Period together with all such previous and further extensions thereof
may not exceed 20 consecutive quarters or extend beyond the maturity or any
redemption date of the Debentures. Payments of accumulated Distributions will be
payable to Holders as they appear on the books and records of the Trust on the
first record date after the end of the Extension Period. Upon the termination of
any Extension Period and the payment of all amounts then due, the Sponsor may
commence a new Extension Period, subject to the above requirements.
(c) Distributions on the Securities will be payable to the Holders thereof
as they appear on the books and records of the Trust on the relevant record
dates. While the Trust Preferred Securities remain in book-entry only form, the
relevant record dates shall be one Business Day prior to the relevant payment
dates, which payment dates correspond to the interest payment dates on the
Debentures. Subject to any applicable laws and regulations and the provisions of
the Declaration, each such payment in respect of the Trust Preferred Securities
will be made as described under the heading ["Description of the Trust Preferred
Securities -- Book-Entry Only Issuance -- The Depository Trust Company"] in the
Prospectus Supplement dated ^, 199^, to the Base Prospectus dated ^, 199^
(together, the "Prospectus"), of the Trust included in the Registration
Statement on Form S-3 of the Sponsor and the Trust. The relevant record dates
for the Common Securities shall be the same record date as for the Trust
Preferred Securities. If the Trust Preferred Securities shall not continue to
remain in book-entry only form, the relevant record dates for the Trust
Preferred Securities shall conform to the rules of any securities exchange on
which the securities are listed and, if none, shall be selected by the Regular
Trustees, which dates shall be at least one Business Day before the relevant
payment dates, which payment dates correspond to the interest payment dates on
the Debentures. Distributions payable on any Securities that are not punctually
paid on any Distribution payment date, as a result of the Sponsor having failed
to make a payment under the Debentures, will cease to be payable to the Person
in whose name such Securities are registered on the relevant record date, and
such defaulted Distribution will instead be payable to the Person in whose name
such Securities are registered on the special record date or other specified
date determined in a like manner as provided in [Section 307] of the Indenture.
If any date on which Distributions are payable on the Securities is not a
Business Day, then payment of the Distribution payable on such date will be made
on the next succeeding day that is a Business Day (and without any
2
interest or other payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date.
(d) [In the event of an election by the Holder to convert its Securities
through the Conversion Agent into Bay View Common Stock pursuant to the terms of
the Securities as set forth in this Annex I to the Declaration, no payment,
allowance or adjustment shall be made with respect to accumulated and unpaid
Distributions on such Securities, or be required to be made; provided, however,
that if a Security is surrendered for conversion after the close of business on
any regular record date for payment of a Distribution and before the opening of
business on the corresponding Distribution payment date, then, notwithstanding
such conversion, the Distribution payable on such Distribution payment date will
be paid in cash to the person in whose name the Security is registered at the
close of business on such record date, and (other than a Security or a portion
of a Security called for redemption on a redemption date occurring after such
record date and on or prior to such Distribution payment date) when so
surrendered for conversion, the Security must be accompanied by payment of an
amount equal to the Distribution payable on such Distribution payment date.]
(e) In the event that there is any money or other property held by or for
the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata (as defined herein) among the Holders of the Securities.
3. Liquidation Distribution Upon Dissolution.
In the event of any voluntary or involuntary dissolution, winding-up or
termination of the Trust, the Holders of the Securities on the date of the
dissolution, winding-up or termination, as the case may be, will be entitled to
receive out of the assets of the Trust available for distribution to Holders of
Securities after satisfaction of liabilities of creditors an amount equal to the
aggregate of the stated liquidation amount of $^ per Security plus accumulated
and unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"), unless, such dissolution, winding-up or termination
occurs in connection with a Special Event in which, in accordance with Section
4(c), Debentures in an aggregate stated principal amount equal to the aggregate
stated liquidation amount of such Securities, with an interest rate equal to the
Coupon Rate of, and bearing accrued and unpaid interest in an amount equal to
the accumulated and unpaid Distributions on, such Securities, shall be
distributed on a Pro Rata basis to the Holders of the Securities in exchange for
such Securities.
If, upon any such dissolution, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then the amounts payable directly by the
Trust on the Securities shall be paid on a Pro Rata basis.
4. Redemption and Distribution.
(a) Upon the repayment of the Debentures in whole or in part, whether at
stated maturity or upon redemption (either at the option of the Sponsor or
pursuant to a Special Event as described below), the proceeds from such
repayment or payment shall be simultaneously
3
applied to redeem Securities having an aggregate liquidation amount equal to the
aggregate principal amount of the Debentures so repaid or redeemed at a
redemption price per Security equal to the redemption price of the Debentures,
together with accrued and unpaid Distributions thereon through the date of the
redemption, payable in cash (the "Redemption Price"). Holders will be given not
less than 30 nor more than 60 days' notice of such redemption.
(b) If fewer than all the outstanding Securities are to be so redeemed, the
Common Securities and the Trust Preferred Securities will be redeemed Pro Rata
and the Trust Preferred Securities to be redeemed will be as described in
Section 4(g) below.
(c) If, at any time, a Tax Event or an Investment Company Event (each, as
defined below, a "Special Event") shall occur and be continuing, the Regular
Trustees may with the consent of the Sponsor, except in certain limited
circumstances in relation to a Tax Event described in this Section 4(c),
dissolve the Trust and, after satisfaction of creditors, cause Debentures held
by the Institutional Trustee, having an aggregate principal amount equal to the
aggregate stated liquidation amount of, with an interest rate identical to the
Coupon Rate of, and accrued and unpaid interest equal to accumulated and unpaid
Distributions on, and having the same record date for payment as the Securities,
to be distributed to the Holders of the Securities in liquidation of such
Holders' interests in the Trust on a Pro Rata basis, within 90 days following
the occurrence of such Special Event (the "90 Day Period"); provided, however,
that such dissolution and distribution shall be conditioned on (i) the Trustees'
receipt of an opinion of a nationally recognized independent tax counsel
experienced in such matters (a "No Recognition Opinion"), which opinion may rely
on published revenue rulings of the Internal Revenue Service, to the effect that
the Holders of the Securities will not recognize any gain or loss for United
States federal income tax purposes as a result of the dissolution of the Trust
and the distribution of Debentures, (ii) in the case of a Tax Event, the Sponsor
or the Trust being unable to avoid, within the 90 Day Period, the Tax Event by
taking some ministerial action, such as filing a form or making an election, or
pursuing some other similar reasonable measure that has no adverse effect on the
Trust, the Sponsor, or the Holders of the Securities ("Ministerial Action"), and
(iii) the Sponsor's prior written consent to such dissolution and distribution.
If in the event of a Tax Event (i) after receipt of a Dissolution Tax
Opinion (as defined hereinafter) by the Regular Trustees, the Sponsor has
received an opinion (a "Redemption Tax Opinion") of a nationally recognized
independent tax counsel experienced in such matters that, as a result of a Tax
Event, there is more than an insubstantial risk that the Sponsor would be
precluded from deducting the interest on the Debentures for United States
federal income tax purposes even after the Debentures were distributed to the
Holders of Securities in liquidation of such Holders' interests in the Trust as
described in this Section 4(c), or (ii) the Trustees shall have been informed by
such tax counsel that a No Recognition Opinion cannot be delivered to the Trust,
the Sponsor shall have the right at any time, upon not less than 30 nor more
than 60 days' notice, to redeem the Debentures in whole or in part, at a
redemption price equal to 100% of the principal amount thereof plus accrued and
unpaid interest thereon, for cash within 90 days following the occurrence of
such Tax Event. Following such redemption, Securities with an aggregate
liquidation amount equal to the aggregate principal amount of the Debentures so
redeemed shall be redeemed by the Trust at the Redemption Price on a Pro Rata
basis; provided, however, that, if at any time there is available to the Sponsor
or the Trust the opportunity to
4
eliminate, within such 90 Day Period, the Tax Event by taking some Ministerial
Action, the Trust or the Sponsor will pursue such Ministerial Action in lieu of
redemption.
"Tax Event" means that the Regular Trustees shall have received an opinion
of a nationally recognized independent tax counsel experienced in such matters
(a "Dissolution Tax Opinion") to the effect that, as a result of (a) any
amendment to, or change (including any announced prospective change) in, the
laws or any regulations thereunder of the United States or any political
subdivision or taxing authority thereof or therein, (b) any amendment to, or
change in, an interpretation or application of any such laws or regulations by
any legislative body, court or governmental or regulatory agency or authority
(including the enactment of any legislation and the publication of any judicial
decision or regulatory determination) or (c) any interpretation or pronouncement
by any legislative body, court or governmental or regulatory agency or authority
that provides for a position with respect to such laws or regulations that
differs from the theretofore generally accepted position, which amendment or
change is enacted, promulgated, issued or announced or which interpretation or
pronouncement is issued or announced, in each case (collectively, a "Change in
Tax Law"), there is more than a substantial risk that (i) the Trust is, or will
be within 90 days of the date thereof, subject to federal income tax with
respect to interest accrued or received on the Debentures, (ii) the Trust is, or
will be within 90 days of the date thereof, subject to more than a de minimis
amount of other taxes, duties or other governmental charges or (iii) interest
(including original issue discount) payable by the Company to the Trust on the
Debentures is not, or within 90 days of the date thereof will not be, deductible
by the Company for United States income tax purposes on a current accrual basis
(by reason of deferral, disallowance or otherwise).
"Investment Company Event" means that each of the Regular Trustees shall
have received an opinion of a nationally recognized independent counsel to the
effect that, as a result of the occurrence of a change in law or regulation or a
change in interpretation or application of law or regulations by any legislative
body, court, governmental agency or regulatory authority (a "Change in 1940 Act
Law"), there is more than an insubstantial risk that the Trust is or will be
considered an "investment company" which is required to be registered under the
Investment Company Act of 1940 as amended (the "1940 Act").
On and from the date fixed by the Regular Trustees for any distribution of
Debentures upon dissolution of the Trust: (i) the Securities will no longer be
deemed to be outstanding, (ii) The Depository Trust Company (the Depository") or
its nominee (or any successor Clearing Agency or its nominee), as the record
Holder of the Trust Preferred Securities, will receive a registered certificate
or certificates representing the Debentures to be delivered upon such
distribution, and (iii) any certificates representing Securities, except for
certificates representing Trust Preferred Securities held by the Depository or
its nominee (or any successor Clearing Agency or its nominee), will be deemed to
represent Debentures having an aggregate principal amount equal to the aggregate
stated liquidation amount of, with an interest rate identical to the Coupon Rate
of, and accrued and unpaid interest equal to accumulated and unpaid
Distributions on such Trust Preferred Securities until such certificates are
presented to the Sponsor or its agent for exchange.
5
(d) The Trust may not redeem fewer than all the outstanding Securities
unless all accumulated and unpaid Distributions have been paid on all Securities
for all quarterly Distribution periods terminating on or before the date of
redemption.
(e) If the Debentures are distributed to Holders of the Securities,
pursuant to the terms of the Indenture, the Sponsor will use its best efforts to
have the Debentures listed on the New York Stock Exchange or on such other
national securities exchange or similar organization as the Trust Preferred
Securities were listed or quoted immediately prior to the distribution of the
Debentures.
(f) Notice of any redemption of, or notice of distribution of Debentures in
exchange for the Securities (a "Redemption/Distribution Notice") will be given
by the Trust by mail to each Holder of Securities to be redeemed or exchanged
not fewer than 30 nor more than 60 days before the date fixed for redemption or
exchange thereof which, in the case of a redemption, will be the date fixed for
redemption of the Debentures. For purposes of the calculation of the date of
redemption or exchange and the dates on which notices are given pursuant to this
Section 4(f), a Redemption/Distribution Notice shall be deemed to be given on
the day such notice is first mailed by first-class mail, postage prepaid, or by
such other means suitable to assure delivery of such written notice, to Holders
of Securities. Each Redemption/Distribution Notice shall be addressed to the
Holders of Securities at the address of each such Holder appearing in the books
and records of the Trust. No defect in the Redemption/Distribution Notice or in
the mailing of either thereof with respect to any Holder shall affect the
validity of the redemption or exchange proceedings with respect to any other
Holder.
(g) In the event that fewer than all the outstanding Trust Preferred
Securities are to be redeemed, the Trust Preferred Securities to be redeemed
shall be redeemed Pro Rata from each Holder of Trust Preferred Securities, it
being understood that, in respect of Trust Preferred Securities registered in
the name of and held of record by the Depository or its nominee (or any
successor Clearing Agency or its nominee) or any nominee, the distribution of
the proceeds of such redemption will be made to each Clearing Agency Participant
(or Person on whose behalf such nominee holds such securities) in accordance
with the procedures applied by such agency or nominee.
(h) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be issued if the
Debentures are redeemed as set out in this Section 4 (which notice will be
irrevocable), then (A) while the Trust Preferred Securities are in book-entry
form, with respect to the Trust Preferred Securities, by 12:00 noon, New York
City time, on the redemption date, provided that the Sponsor has paid the
Institutional Trustee a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Institutional Trustee will deposit
irrevocably with the Depository or its nominee (or successor Clearing Agency or
its nominee) funds sufficient to pay the applicable Redemption Price with
respect to the Trust Preferred Securities and will give the Depository
irrevocable instructions and authority to pay the Redemption Price to the
Holders of the Trust Preferred Securities, and (B) with respect to Trust
Preferred Securities issued in definitive form and Common Securities, provided
that the Sponsor has paid the Institutional Trustee a sufficient amount of cash
in connection with the related redemption or maturity of the Debentures, the
Institutional Trustee will pay the relevant Redemption Price to the Holders of
such Securities by
6
check mailed to the address of the relevant Holder appearing on the books and
records of the Trust on the redemption date. If a Redemption/Distribution Notice
shall have been given and funds deposited as required, if applicable, then
immediately prior to the close of business on the required date of such deposit,
Distributions will cease to accumulate on the Securities so called for
redemption and all rights of Holders of such Securities so called for redemption
will cease, except the right of the Holders of such Securities to receive the
Redemption Price, but without interest on such Redemption Price. Neither the
Regular Trustees nor the Trust shall be required to register or cause to be
registered the transfer of any Securities that have been so called for
redemption. If any date fixed for redemption of Securities is not a Business
Day, then payment of the Redemption Price payable on such date will be made on
the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such Business Day
falls in the next calendar year, such payment will be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date fixed for redemption. If payment of the Redemption Price in respect
of any Securities is improperly withheld or refused and not paid either by the
Institutional Trustee or by the Sponsor as guarantor pursuant to the relevant
Securities Guarantee, Distributions on such Securities will continue to
accumulate from the original redemption date to the actual date of payment, in
which case the actual payment date will be considered the date fixed for
redemption for purposes of calculating the Redemption Price.
(i) Redemption/Distribution Notices shall be sent by the Regular Trustees
on behalf of the Trust to (A) in respect of the Trust Preferred Securities, the
Depository or its nominee (or any successor Clearing Agency or its nominee) if
the Global Certificates have been issued or, if Definitive Preferred Security
Certificates have been issued, to the Holder thereof, and (B) in respect of the
Common Securities to the Holder thereof.
(j) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws), the Sponsor or any of its
subsidiaries may at any time and from time to time purchase outstanding Trust
Preferred Securities by tender, in the open market or otherwise.
5. [Conversion Rights.
The Holders of Securities shall have the right at any time prior to the
close of business on ^ (or, in the case of Securities called for redemption,
prior to the close of business on the Business Day prior to the redemption
date), at their option, to cause the Conversion Agent to convert Securities, on
behalf of the converting Holders, into shares of [Bay View Common Stock] in the
manner described herein on and subject to the following terms and conditions:]
(a) [The Securities will be convertible at the office of the Conversion
Agent into fully paid and nonassessable shares of Bay View Common Stock pursuant
to the Holder's direction to the Conversion Agent to exchange such Securities
for a portion of the Debentures theretofore held by the Trust on the basis of
one Security per $^ principal amount of Debentures, and immediately convert such
amount of Debentures into fully paid and nonassessable shares of Bay View Common
Stock at an initial rate of _____ shares of Bay View Common Stock per $^
principal amount of Debentures (which is equivalent to a conversion price of $^
per share of
0
Xxx Xxxx Xxxxxx Xxxxx, subject to certain adjustments set forth in [Sections 7.3
and 7.4] of the Supplemental Indenture (as so adjusted, "Conversion Price")).]
(b) [In order to convert Securities into Bay View Common Stock the Holder
shall submit to the Conversion Agent at the office referred to above an
irrevocable request to convert Securities on behalf of such Holder (the
"Conversion Request"), together, if the Securities are in certificated form,
with such certificates. The Conversion Request shall (i) set forth the number of
Securities to be converted and the name or names, if other than the Holder, in
which the shares of Bay View Common Stock should be issued and (ii) direct the
Conversion Agent (a) to exchange such Securities for a portion of the Debentures
held by the Trust (at the rate of exchange specified in the preceding paragraph)
and (b) to immediately convert such Debentures on behalf of such Holder, into
Bay View Common Stock (at the conversion rate specified in the preceding
paragraph). The Conversion Agent shall notify the Trust of the Holder's election
to exchange Securities for a portion of the Debentures held by the Trust and the
Trust shall, upon receipt of such notice, deliver to the Conversion Agent the
appropriate principal amount of Debentures for exchange in accordance with this
Section. The Conversion Agent shall thereupon notify Bay View Capital
Corporation of the Holder's election to convert such Debentures into shares of
Bay View Common Stock. If a Security is surrendered for conversion after the
close of business on any regular record date for payment of a Distribution and
before the opening of business on the corresponding Distribution payment date,
then, notwithstanding such conversion, the Distribution payable on such
Distribution payment date will be paid in cash to the person in whose name the
Security is registered at the close of business on such record date, and (other
than a Security or a portion of a Security called for redemption on a redemption
date occurring after such record date and on or prior to such Distribution
payment date) when so surrendered for conversion, the Security must be
accompanied by payment of an amount equal to the Distribution payable on such
Distribution payment date. Except as provided above, neither the Trust nor the
Sponsor will make, or be required to make, any payment, allowance or adjustment
upon any conversion on account of any accumulated and unpaid Distributions
accumulated on the Securities (including any Additional Amounts accumulated
thereon) surrendered for conversion, or on account of any accumulated and unpaid
dividends on the shares of Bay View Common Stock issued upon such conversion.
Securities shall be deemed to have been converted immediately prior to the close
of business on the day on which a Notice of Conversion relating to such
Securities is received by the Trust in accordance with the foregoing provision
(the "Conversion Date"). The Person or Persons entitled to receive Bay View
Common Stock issuable upon conversion of the Debentures shall be treated for all
purposes as the record holder or holders of such Bay View Common Stock at such
time. As promptly as practicable on or after the Conversion Date, Bay View
Capital Corporation shall issue and deliver at the office of the Conversion
Agent a certificate or certificates for the number of full shares of Bay View
Common Stock issuable upon such conversion, together with the cash payment, if
any, in lieu of any fraction of any share to the Person or Persons entitled to
receive the same, unless otherwise directed by the Holder in the notice of
conversion and the Conversion Agent shall distribute such certificate or
certificates to such Person or Persons.]
(c) [Each Holder of a Security by his acceptance thereof appoints the
Person serving as Conversion Agent under the Declaration as "Conversion Agent"
for the purpose of effecting the conversion of Securities in accordance with
this Section. In effecting the conversion and transactions described in this
Section, the Conversion Agent shall be acting as agent of the
8
Holders of Securities directing it to effect such conversion transactions. The
Conversion Agent is hereby authorized (i) to exchange Securities from time to
time for Debentures held by the Trust in connection with the conversion of such
Securities in accordance with this Section and (ii) to convert all or a portion
of the Debentures into Bay View Common Stock and thereupon to deliver such
shares of Bay View Common Stock in accordance with the provisions of this
Section and to deliver to the Trust a new Debenture or Debentures for any
resulting unconverted principal amount.]
(d) [No fractional shares of Bay View Common Stock will be issued as a
result of conversion, but in lieu thereof, such fractional interest will be paid
in cash by Bay View Capital Corporation to the Conversion Agent, which in turn
will make such payment to the Holder or Holders of Securities so converted.]
(e) [Bay View Capital Corporation shall at all times reserve and keep
available out of its authorized and unissued Bay View Common Stock, solely for
issuance upon the conversion of the Debentures, free from any preemptive or
other similar rights, such number of shares of Bay View Common Stock as shall
from time to time be issuable upon the conversion of all the Debentures then
outstanding. Notwithstanding the foregoing, Bay View Capital Corporation shall
be entitled to deliver upon conversion of Debentures, shares of Bay View Common
Stock reacquired and held in the treasury of Bay View Capital Corporation (in
lieu of the issuance of authorized and unissued shares of Bay View Common
Stock), so long as any such treasury shares are free and clear of all liens,
charges, security interests or encumbrances. Any shares of Bay View Common Stock
issued upon conversion of the Debentures shall be duly authorized, validly
issued and fully paid and nonassessable. The Trust shall deliver the shares of
Bay View Common Stock received upon conversion of the Debentures to the
converting Holder free and clear of all liens, charges, security interests and
encumbrances, except for United States withholding taxes. Each of Bay View
Capital Corporation and the Trust shall prepare and shall use its best efforts
to obtain and keep in force such governmental or regulatory permits or other
authorizations as may be required by law, and shall comply with all applicable
requirements as to registration or qualification of Bay View Common Stock (and
all requirements to list Bay View Common Stock issuable upon conversion of
Debentures that are at the time applicable), in order to enable Bay View Capital
Corporation to lawfully issue Bay View Common Stock to the Trust upon conversion
of the Debentures and the Trust to lawfully deliver Bay View Common Stock to
each Holder upon conversion of the Securities.]
(f) [Bay View Capital Corporation will pay any and all taxes that may be
payable in respect of the issue or delivery of shares of Bay View Common Stock
on conversion of Debentures and the delivery of the shares of Bay View Common
Stock by the Trust upon conversion of the Securities. Bay View Capital
Corporation shall not, however, be required to pay any tax which may be payable
in respect of any transfer involved in the issue and delivery of shares of Bay
View Common Stock in a name other than that in which the Securities so converted
were registered, and no such issue or delivery shall be made unless and until
the person requesting such issue has paid to the Trust the amount of any such
tax, or has established to the satisfaction of the Trust that such tax has been
paid.]
(g) [Nothing in the preceding Paragraph (f) shall limit the requirement of
the Trust to withhold taxes pursuant to the terms of the Securities or set forth
in this Annex I to the
9
Declaration or to the Declaration itself or otherwise require the Institutional
Trustee or the Trust to pay any amounts on account of such withholdings.]
6. Voting Rights - Trust Preferred Securities.
(a) Except as provided under Sections 6(b) and 8 and as otherwise required
by law and the Declaration, the Holders of the Trust Preferred Securities will
have no voting rights.
(b) Subject to the requirements set forth in this paragraph, the Holders of
a Majority in liquidation amount of the Trust Preferred Securities, voting
separately as a class, may direct the time, method, and place of conducting any
proceeding for any remedy available to the Institutional Trustee, or exercising
any trust or power conferred upon the Institutional Trustee under the
Declaration, including the right to direct the Institutional Trustee, as holder
of the Debentures, to (i) exercise the remedies available under the Indenture
with respect to the Debentures, (ii) waive any past default and its consequences
that is waivable under [Section 513] of the Indenture, or (iii) exercise any
right to rescind or annul a declaration that the principal of all the Debentures
shall be due and payable; provided, however, that, if an Event of Default has
occurred under the Indenture and is continuing, then the Holders of 25% in
liquidation amount of the Trust Preferred Securities, voting separately as a
class, may direct the Institutional Trustee, as holder of the Debentures, to
declare the principal amount of all the Debentures to be due and payable
immediately; and provided further that where a consent or other action under the
Indenture would require the consent or act of the Holders of greater than a
majority in principal amount of Debentures affected thereby (a "Super
Majority"), the Institutional Trustee may only give such consent or take such
action at the written direction of the Holders of at least the proportion in
liquidation amount of the Trust Preferred Securities which the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding. The Institutional Trustee shall not revoke any action previously
authorized or approved by a vote of the Holders of the Trust Preferred
Securities. Other than with respect to directing the time, method and place of
conducting any remedy available to the Institutional Trustee or the Debenture
Trustee as set forth above, the Institutional Trustee shall not take any action
in accordance with the directions of the Holders of the Trust Preferred
Securities under this paragraph unless each Trustee has obtained an opinion of
tax counsel to the effect that for the purposes of United States federal income
tax the Trust will not be classified as other than a grantor trust on account of
such action. The Holders of a Majority in liquidation amount of the Trust
Preferred Securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Institutional Trustee
or to direct the exercise of any trust or power conferred upon the Institutional
Trustee under the Declaration, including the right to direct the Institutional
Trustee to exercise the remedies available to it as a holder of the Debentures.
If the Institutional Trustee fails to enforce its rights under the Debentures, a
Holder of Trust Preferred Securities, to the fullest extent permitted by law,
may institute a legal proceeding directly against the Sponsor to enforce the
Institutional Trustee's rights under the Debentures without first instituting
any legal proceeding against the Institutional Trustee or any other person or
entity. Notwithstanding the foregoing, if an Event of Default has occurred and
is continuing and such event is attributable to the failure of the Sponsor to
pay interest or principal on the Debentures on the date such interest or
principal is otherwise payable (or in the case of redemption, on the redemption
date), then a Holder of Trust Preferred Securities may directly institute a
proceeding for enforcement of payment to such Holder of the principal of or
interest on the Debentures having a principal
10
amount equal to the aggregate liquidation amount of the Trust Preferred
Securities of such Holder (a "Direct Action") on or after the respective due
date specified in the Debentures. Notwithstanding any payments made to such
Holder by the Sponsor, in connection with such Direct Action, the Sponsor shall
remain obligated to pay the principal or interest on such Debentures, and the
Sponsor shall be subrogated to the rights of such Holder of Trust Preferred
Securities to the extent of any payment made by the Sponsor to such Holder of
Trust Preferred Securities in such Direct Action. Except as provided in the
preceding sentences, the Holders of Trust Preferred Securities shall have no
right or power to exercise directly any other remedy available to the holders of
the Debentures.
Any approval or direction of Holders of Trust Preferred Securities may be
given at a separate meeting of Holders of Trust Preferred Securities convened
for such purpose, at a meeting of all of the Holders of Securities in the Trust
or pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Trust Preferred Securities are entitled to vote, or
of any matter upon which action by written consent of such Holders is to be
taken, to be mailed to each Holder of record of Trust Preferred Securities.
Each such notice will include a statement setting forth (i) the date of such
meeting or the date by which such action is to be taken, (ii) a description of
any resolution proposed for adoption at such meeting on which such Holders are
entitled to vote or of such matter upon which written consent is sought and
(iii) instructions for the delivery of proxies or consents.
No vote or consent of the Holders of the Trust Preferred Securities will be
required for the Trust to redeem and cancel Trust Preferred Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
Notwithstanding that Holders of Trust Preferred Securities are entitled to
vote or consent under any of the circumstances described above, any of the Trust
Preferred Securities that are owned at such time by the Sponsor or any Affiliate
of the Sponsor shall not be entitled to vote or consent and shall, for purposes
of such vote or consent, be treated as if they were not outstanding.
7. Voting Rights - Common Securities.
(a) Except as provided under Sections 7(b), (c) and 8 and as otherwise
required by law and the Declaration, the Holders of the Common Securities will
not have voting rights.
(b) The Holders of the Common Securities are entitled, in accordance with
Article 5 of the Declaration, to vote to appoint, remove or replace any Trustee
or to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only after any Event of
Default with respect to the Trust Preferred Securities has been cured, waived,
or otherwise eliminated and subject to the requirements of the second to last
sentence of this paragraph, the Holders of a Majority in liquidation amount of
the Common Securities, voting separately as a class, may direct the time,
method, and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under the Declaration, including (i) directing the time,
method, place of conducting any
11
proceeding for any remedy available to the Debenture Trustee, or exercising any
trust or power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waive any past default and its consequences that is waivable
under [Section 513] of the Indenture, or (iii) exercise any right to rescind or
annul a declaration that the principal of all the Debentures shall be due and
payable, provided that, where a consent or action under the Indenture would
require the consent or act of the Holders of greater than a majority in
principal amount of Debentures affected thereby (a "Super Majority"), the
Institutional Trustee may only give such consent or take such action at the
written direction of the Holders of at least the proportion in liquidation
amount of the Common Securities which the relevant Super Majority represents of
the aggregate principal amount of the Debentures outstanding. Pursuant to this
Section 7(c), the Institutional Trustee shall not revoke any action previously
authorized or approved by a vote of the Holders of the Trust Preferred
Securities. Other than with respect to directing the time, method and place of
conducting any remedy available to the Institutional Trustee or the Debenture
Trustee as set forth above, the Institutional Trustee shall not take any action
in accordance with the directions of the Holders of the Common Securities under
this paragraph unless the Institutional Trustee has obtained an opinion of tax
counsel to the effect that for the purposes of United States federal income tax
the Trust will not be classified as other than a grantor trust on account of
such action. If the Institutional Trustee fails to enforce its rights under the
Declaration, any Holder of Common Securities may institute a legal proceeding
directly against any Person to enforce the Institutional Trustee's rights under
the Declaration, without first instituting a legal proceeding against the
Institutional Trustee or any other Person.
Any approval or direction of Holders of Common Securities may be given at a
separate meeting of Holders of Common Securities convened for such purpose, at a
meeting of all of the Holders of Securities in the Trust or pursuant to written
consent. The Regular Trustees will cause a notice of any meeting at which
Holders of Common Securities are entitled to vote, or of any matter upon which
action by written consent of such Holders is to be taken, to be mailed to each
Holder of record of Common Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such
matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of the Common Securities will be required
for the Trust to redeem and cancel Common Securities or to distribute the
Debentures in accordance with the Declaration and the terms of the Securities.
8. Amendments to Declaration and Indenture.
(a) In addition to any requirements under Section 12.1 of the Declaration,
if any proposed amendment to the Declaration provides for, or the Regular
Trustees otherwise propose to effect, (i) any action that would adversely affect
the powers, preferences or special rights of the Securities, whether by way of
amendment to the Declaration or otherwise, or (ii) the dissolution, winding-up
or termination of the Trust, other than as described in Section 8.1 of the
Declaration, then the Holders of outstanding Securities voting together as a
single class, will be entitled to vote on such amendment or proposal (but not on
any other amendment or proposal) and such amendment or proposal shall not be
effective except with the approval of the Holders of
12
at least a Majority in liquidation amount of the Securities affected thereby;
provided, however, if any amendment or proposal referred to in clause (i) above
would adversely affect only the Trust Preferred Securities or only the Common
Securities, then only the affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of a Majority in liquidation amount of such class of
Securities.
(b) In the event the consent of the Institutional Trustee as the holder of
the Debentures is required under the Indenture with respect to any amendment,
modification or termination of the Indenture or the Debentures, the
Institutional Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination and shall
vote with respect to such amendment, modification or termination as directed by
a Majority in liquidation amount of the Securities voting together as a single
class; provided, however, that where a consent under the Indenture would require
the consent of the holders of greater than a majority in aggregate principal
amount of the Debentures (a "Super Majority"), the Institutional Trustee may
only give such consent at the direction of the Holders of at least the
proportion in liquidation amount of the Securities which the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding; provided, further, that the Institutional Trustee shall not take
any action in accordance with the directions of the Holders of the Securities
under this Section 8(b) unless each Trustee has obtained an opinion of tax
counsel to the effect that for the purposes of United States federal income tax
the Trust will not be classified as other than a grantor trust on account of
such action.
9. Pro Rata.
A reference in these terms of the Securities to any distribution or
treatment as being "Pro Rata" shall mean pro rata to each Holder of Securities
according to the aggregate liquidation amount of the Securities held by the
relevant Holder in relation to the aggregate liquidation amount of all
Securities outstanding unless, in relation to a payment, an Event of Default
under the Declaration has occurred and is continuing, in which case any funds
available to make such payment shall be paid first to each Holder of the Trust
Preferred Securities pro rata according to the aggregate liquidation amount of
Trust Preferred Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Trust Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Trust Preferred
Securities, to each Holder of Common Securities pro rata according to the
aggregate liquidation amount of Common Securities held by the relevant Holder
relative to the aggregate liquidation amount of all Common Securities
outstanding.
10. Ranking.
The Trust Preferred Securities rank pari passu and payment thereon shall be
made Pro Rata with the Common Securities except that, where an Event of Default
occurs and is continuing, the rights of Holders of the Common Securities to
payment in respect of Distributions and payments upon liquidation, redemption
and otherwise are subordinated to the rights to payment of the Holders of the
Trust Preferred Securities.
13
11. Listing.
The Regular Trustees shall use their best efforts to cause the Trust
Preferred Securities to be listed for quotation on the New York Stock Exchange,
Inc.
12. Acceptance of Securities Guarantee and Indenture.
Each Holder of Trust Preferred Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Trust Preferred Securities
Guarantee and the Common Securities Guarantee, respectively, including the
subordination provisions therein and to the provisions of the Indenture.
13. No Preemptive Rights.
The Holders of the Securities shall have no preemptive or similar rights to
subscribe for any additional securities.
14. Miscellaneous.
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Trust Preferred
Securities Guarantee or the Common Securities Guarantee (as may be appropriate),
and the Indenture to a Holder without charge on written request to the Sponsor
at its principal place of business.
14
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT - This
Preferred Security is a Global Certificate within the meaning of the Declaration
hereinafter referred to and is registered in the name of The Depository Trust
Company (the "Depositary") or a nominee of the Depositary. This Preferred
Security is exchangeable for Trust Preferred Securities registered in the name
of a Person other than the Depositary or its nominee only in the limited
circumstances described in the Declaration and no transfer of this Preferred
Security (other than a transfer of this Preferred Security 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 to a successor Depositary
or its nominee) may be registered except in limited circumstances.
Unless this Preferred Security is presented by an authorized representative
of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) to the
Trust or its agent for registration of transfer, exchange or payment, and any
Preferred Security issued is registered in the name of Cede & Co. or such other
name as requested by an authorized representative of The Depository Trust
Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.]
Certificate Number: Number of Trust Preferred Securities: _____
CUSIP NO.
Certificate Evidencing Trust Preferred Securities
of
Bay View Capital I
[$^/^%] Trust Preferred Securities (liquidation amount $^ per Preferred
Security)
Bay View Capital I, a statutory business trust created under the laws of
the State of Delaware (the "Trust"), hereby certifies that ____________ (the
"Holder") is the registered owner of Trust Preferred Securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the [$^/^%] [Convertible] Trust Preferred Securities, [Series ^]
(liquidation amount $^ per Preferred Security) (the "Trust Preferred
Securities'). The Trust Preferred Securities are transferable on the books and
records of the Trust, in person or by a duly authorized attorney, upon surrender
of this certificate duly endorsed and in proper form for transfer. The
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Trust Preferred Securities represented hereby are issued and
shall in all respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of ^, 199^, as the same may be
amended from time to time (the "Declaration"), including the designation of the
terms of the Trust Preferred Securities as set forth in Annex I to the
Declaration. Capitalized terms used herein but not defined shall have the
meaning given them in
A-1-1
the Declaration. The Holder is entitled to the benefits of the Trust Preferred
Securities Guarantee to the extent provided therein. The Sponsor will provide a
copy of the Declaration, the Trust Preferred Securities Guarantee and the
Indenture to a Holder without charge upon written request to the Trust at its
principal place of business.
Upon receipt of this certificate, the Holder is bound by the Declaration
and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal income
tax purposes, the Debentures as indebtedness and the Trust Preferred Securities
as evidence of indirect beneficial ownership in the Debentures.
Unless the Institutional Trustee's Certificate of Authentication hereon has
been properly executed, these Trust Preferred Securities shall not be entitled
to any benefit under the Declaration or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Trust has executed this certificate on _______.
Bay View Capital I
By:
-------------------------
Name:
Title: Regular Trustee
A-1-2
[FORM OF CERTIFICATE OF AUTHENTICATION]
INSTITUTIONAL TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Security Certificates referred to in the
within-mentioned Declaration.
Dated:____________________
^,
as Institutional Trustee or as Authenticating Agent
By: By:
------------------------ ---------------------------
A-1-3
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Preferred Security will be fixed at a rate
per annum of ^% (the "Coupon Rate") of the stated liquidation amount of $^ per
Preferred Security, such rate being the rate of interest payable on the
Debentures to be held by the Institutional Trustee. Distributions in arrears
for more than one quarter will bear interest thereon compounded quarterly at the
Coupon Rate (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions and any such
interest payable unless otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor. The amount of Distributions payable for any period will be
computed for any full quarterly Distribution period on the basis of a 360-day
year of twelve 30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed, Distributions will be
computed on the basis of the actual number of days elapsed per 30-day month.
Except as otherwise described below, Distributions on the Trust Preferred
Securities will be cumulative, will accrue from ^, 199^ and will be payable
quarterly in arrears, on ^,^,^ and ^ of each year, commencing on ^, 199^, which
payment dates shall correspond to the interest payment dates on the Debentures,
to Holders of record at the close of business on the regular record date for
such Distribution which shall be the close of business on the Business Day next
preceding such Distribution payment date unless otherwise provided in the
Declaration. The Sponsor has the right under the Indenture to defer payments of
interest by extending the interest payment period from time to time on the
Debentures for a period not exceeding 20 consecutive quarters (each an
"Extension Period") provided that no Extension Period shall last beyond the date
of the maturity or any redemption date of the Debentures and, as a consequence
of such deferral, Distributions will also be deferred. Despite such deferral,
quarterly Distributions will continue to accrue with interest thereon (to the
extent permitted by applicable law) at the Coupon Rate compounded quarterly
during any such Extension Period. Prior to the termination of any such
Extension Period, the Sponsor may further extend such Extension Period; provided
that such Extension Period together with all such previous and further
extensions thereof may not exceed 20 consecutive quarters or extend beyond the
maturity or any redemption date of the Debentures. Payments of accrued
Distributions will be payable to Holders as they appear on the books and records
of the Trust on the first record date after the end of the Extension Period.
Upon the termination of any Extension Period and the payment of all amounts then
due, the Sponsor may commence a new Extension Period, subject to the above
requirements.
The Trust Preferred Securities shall be redeemable as provided in the
Declaration.
[The Trust Preferred Securities shall be convertible into shares of Bay
View Common Stock, through (i) the exchange of Trust Preferred Securities for a
portion of the Debentures and (ii) the immediate conversion of such Debentures
into Bay View Common Stock, in the manner and according to the terms set forth
in the Declaration.]
A-1-4
[CONVERSION REQUEST
To: ^, as Institutional Trustee of Bay View Capital I
The undersigned owner of these Trust Preferred Securities hereby
irrevocably exercises the option to convert these Trust Preferred Securities, or
the portion below designated, into Common Stock of Bay View Capital Corporation
(the "Bay View Common Stock") in accordance with the terms of the Amended and
Restated Declaration of Trust, dated as of ^, 199^ (as amended from time to
time, the "Declaration"), by ^, ^ and ^, as Regular Trustees, ^ , as Delaware
Trustee, ^, as Institutional Trustee, Bay View Capital Corporation, as Sponsor,
and by the Holders, from time to time, of undivided beneficial interests in the
Trust to be issued pursuant to the Declaration. Pursuant to the aforementioned
exercise of the option to convert these Trust Preferred Securities, the
undersigned hereby directs the Conversion Agent (as that term is defined in the
Declaration) to (i) exchange such Trust Preferred Securities for a portion of
the Debentures (as that term is defined in the Declaration) held by the Trust
(at the rate of exchange specified in the terms of the Trust Preferred
Securities set forth as Annex I to the Declaration) and (ii) immediately convert
such Debentures on behalf of the undersigned, into Bay View Common Stock (at the
conversion rate specified in the terms of the Trust Preferred Securities set
forth as Annex I to the Declaration).
The undersigned does also hereby direct the Conversion Agent that the
shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment below.
If shares are to be issued in the name of a Person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto.
Date: _________________, ______
in whole in part
Number of Trust Preferred Securities to be Converted:
----------------------------------------------------
A-1-5
If a name or names other than the undersigned, please indicate in the
spaces below the name or names in which the shares of Bay View Common Stock are
to be issued, along with the address or addresses of such Person or Persons
--------------------------------- -----------------------------------
--------------------------------- -----------------------------------
--------------------------------- -----------------------------------
--------------------------------- -----------------------------------
--------------------------------- -----------------------------------
--------------------------------- -----------------------------------
-----------------------------------
Signature (for conversion only)
Please Print or Typewrite Name and Address, Including Zip Code, and Social
Security or Other Identifying Number
--------------------------------- -----------------------------------
--------------------------------- -----------------------------------
--------------------------------- -----------------------------------
Signature Guarantee:*
----------------------------------------------------------
--------------------
* (Signature must be guaranteed by an "eligible guarantor institution" that is
a bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Conversion Agent, which requirements include membership
or participation in the Securities Transfer Agents Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Conversion Agent in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.]
A-1-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
A-1-7
agent to transfer this Preferred Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:
-----------------------------
Signature:
------------------------
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
Signature Guarantee:*
--------------------------------------------------------
-----------------------
* Signature must be guaranteed by an "eligible guarantor institution" that is a
bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities and Exchange Act of 1934, as amended.
X-0-0
XXXXXXX X-0
FORM OF COMMON SECURITY CERTIFICATE
Certificate Number: ________ Number of Common Securities: _______
Certificate Evidencing Common Securities
of
Bay View Capital I
[$^/^%] Common Securities
(liquidation amount $^ per Common Security)
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN THE LIMITED CIRCUMSTANCES AS
DESCRIBED IN THE DECLARATION (AS DEFINED BELOW):
Bay View Capital I, a statutory business trust created under the laws of the
State of Delaware (the "Trust"), hereby certifies that ______________ (the
"Holder") is the registered owner of common securities of the Trust representing
undivided beneficial interests in the assets of the Trust designated the ____%
[$^/^%] Common Securities (liquidation amount $^ per Common Security) (the
"Common Securities"). The Common Securities are transferable on the books and
records of the Trust, in person or by a duly authorized attorney, upon surrender
of this certificate duly endorsed and in proper form for transfer. The
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities represented hereby are issued and shall in
all respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of ^, 199^, as the same may be
amended from time to time (the "Declaration"), including the designation of the
terms of the Common Securities as set forth in Annex I to the Declaration.
Capitalized terms used herein but not defined shall have the meaning given them
in the Declaration. The Holder is entitled to the benefits of the Common
Securities Guarantee to the extent provided therein. The Sponsor will provide a
copy of the Declaration, the Common Securities Guarantee and the Indenture to a
Holder without charge upon written request to the Sponsor at its principal place
of business.
Upon receipt of this certificate, the Holder is bound by the Declaration
and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal income
tax purposes, the Debentures as indebtedness and the Common Securities as
evidence of indirect beneficial ownership in the Debentures.
A-2-1
IN WITNESS WHEREOF, the Trust has executed this certificate this ___ day of
^, 199^.
Bay View Capital I
By:
------------------------
Name:
Title: Regular Trustee
A-2-2
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at a rate per
annum of ^% (the "Coupon Rate") of the stated liquidation amount of $50 per
Common Security, such rate being the rate of interest payable on the Debentures
to be held by the Institutional Trustee. Distributions in arrears for more than
one quarter will bear interest thereon compounded quarterly at the Coupon Rate
(to the extent permitted by applicable law). The term "Distributions" as used
herein includes such cash distributions and any such interest payable unless
otherwise stated. A Distribution is payable only to the extent that payments
are made in respect of the Debentures held by the Institutional Trustee and to
the extent the Institutional Trustee has funds available therefor. The amount
of Distributions payable for any period will be computed for any full quarterly
Distribution period on the basis of a 360-day year of twelve 30-day months, and
for any period shorter than a full quarterly Distribution period for which
Distributions are computed, Distributions will be computed on the basis of the
actual number of days elapsed per 30-day month.
Except as otherwise described below, Distributions on the Common Securities
will be cumulative, will accrue from ^, 199^ and will be payable quarterly in
arrears, on ^, ^, ^ and ^ of each year, commencing on ^, 199^, which payment
dates shall correspond to the interest payment dates on the Debentures, to
Holders of record at the close of business on the regular record date for such
Distribution which shall be the close of business on the Business Day next
preceding such Distribution payment date unless otherwise provided in the
Declaration. The Sponsor has the right under the Indenture to defer payments of
interest by extending the interest payment period from time to time on the
Debentures for a period not exceeding 20 consecutive quarters (each an
"Extension Period") provided that no Extension Period shall last beyond the date
of maturity of the Debentures and, as a consequence of such deferral,
Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly during any
such Extension Period. Prior to the termination of any such Extension Period,
the Sponsor may further extend such Extension Period; provided that such
Extension Period together with all such previous and further extensions thereof
may not exceed 20 consecutive quarters or extend beyond the date of maturity of
the Debentures. Payments of accrued Distributions will be payable to Holders as
they appear on the books and records of the Trust on the first record date after
the end of the Extension Period. Upon the termination of any Extension Period
and the payment of all amounts then due, the Sponsor may commence a new
Extension Period, subject to the above requirements.
The Common Securities shall be redeemable as provided in the Declaration.
[The Common Securities shall be convertible into shares of Bay View Common
Stock, through (i) the exchange of Common Securities for a portion of the
Debentures and (ii) the immediate conversion of such Debentures into Bay View
Common Stock, in the manner and according to the terms set forth in the
Declaration.]
A-2-3
[CONVERSION REQUEST
To: ^
as Institutional Trustee of
Bay View Capital I
The undersigned owner of these Common Securities hereby irrevocably
exercises the option to convert these Common Securities, or the portion below
designated, into Common Stock of Bay View Capital Corporation (the "Bay View
Common Stock") in accordance with the terms of the Amended and Restated
Declaration of Trust dated as of ^, 199^ (as amended from time to time, the
"Declaration"), by ^, ^ and ^, as Regular Trustees, ^, as Delaware Trustee, ^,
as Institutional Trustee, Bay View Capital Corporation, as Sponsor, and by the
Holders, from time to time, of undivided beneficial interests in the Trust to be
issued pursuant to the Declaration. Pursuant to the aforementioned exercise of
the option to convert these Common Securities, the undersigned hereby directs
the Conversion Agent (as that term is defined in the Declaration) to (i)
exchange such Common Securities for a portion of the Debentures (as that term is
defined in the Declaration) held by the Trust (at the rate of exchange specified
in the terms of the Common Securities set forth as Annex I to the Declaration)
and (ii) immediately convert such Debentures on behalf of the undersigned, into
Bay View Common Stock (at the conversion rate specified in the terms of the
Common Securities set forth as Annex I to the Declaration).
The undersigned does also hereby direct the Conversion Agent that the
shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment below.
If shares are to be issued in the name of a Person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto.
Date: _________________, ______
in whole in part
Number of Common Securities to be Converted:
-------------------------------------------
A-2-4
If a name or names other than the undersigned, please indicate in the
spaces below the name or names in which the shares of Bay View Common Stock are
to be issued, along with the address or addresses of such Person or Persons
--------------------------------- -----------------------------------
--------------------------------- -----------------------------------
--------------------------------- -----------------------------------
--------------------------------- -----------------------------------
--------------------------------- -----------------------------------
--------------------------------- -----------------------------------
-----------------------------------
Signature (for conversion only)
Please Print or Typewrite Name and Address, Including Zip Code, and Social
Security or Other Identifying Number
--------------------------------- -----------------------------------
--------------------------------- -----------------------------------
--------------------------------- -----------------------------------
Signature Guarantee:*
----------------------------------------------------------
---------------------------
* Signature must be guaranteed by an "eligible guarantor institution" that is a
bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities and Exchange Act of 1934, as amended.]
A-2-5
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common
Security Certificate to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
A-2-6
agent to transfer this Common Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date: _______________________________
Signature: __________________________
(Sign exactly as your name appears on the other side of this Common
Security Certificate)
Signature Guarantee:*
-----------------------------------------------------------
----------------------
* Signature must be guaranteed by an "eligible guarantor institution" that is a
bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities and Exchange Act of 1934, as amended.
A-2-7
