EXHIBIT 4(m)
TRUST AGREEMENT
OF
BAY VIEW CAPITAL II
THIS TRUST AGREEMENT is made as of September 16, 1998 (this "Trust
Agreement"), by and among Bay View Capital Corporation, a Delaware corporation,
as Sponsor (the "Sponsor"), Wilmington Trust Company, a Delaware banking
corporation, as trustee ("Delaware Trustee"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇, as trustee
(the Delaware Trustee and ▇▇▇▇▇▇ ▇. ▇▇▇▇ being hereinafter jointly referred to
as the "Trustees"). The Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as "Bay View Capital II" (the
"Trust"), in which name the Trustees or the Sponsor, to the extent provided
herein, may conduct the business of the Trust, make and execute contracts, and
▇▇▇ and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trustees the sum of $10. The Trustees hereby acknowledge receipt of such amount
in trust from the Sponsor, which amount shall constitute the initial trust
estate. The Trustees hereby declare that they will hold the trust estate in
trust for the Sponsor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (S)3801, et seq. (the "Business Trust Act"), and that
------- -- ---
this document constitute the governing instrument of the Trust. The Trustees
are hereby authorized and directed to execute and file a certificate of trust
with the Delaware Secretary of State in such form as the Trustees may approve.
3. The Sponsor and the Trustees will enter into an amended and restated
Trust Agreement or Declaration satisfactory to each such party and substantially
in the form to be included as an exhibit to the Registration Statement on Form
S-3, including any subsequent registration statements filed under Rule 462(b)
under the 1933 Act (as herein defined) (collectively, the "1933 Act Registration
Statement") referred to below, or in such other form as the Trustees and the
Sponsor may approve, to provide for the contemplated operation of the Trust
created hereby and the issuance of the Preferred Securities and Common
Securities referred to therein. Prior to the execution and delivery of such
amended and restated Trust Agreement or Declaration, the Trustees shall not have
any duty or obligation hereunder or with respect of the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain prior to
such execution and delivery any licenses, consents or approvals required by
applicable law or otherwise. Notwithstanding the foregoing, the Trustees may
take all actions deemed proper as are necessary to effect the transactions
contemplated herein.
4. The Sponsor and the Trustees hereby authorize and direct the Sponsor,
as the sponsor of the Trust, (i) to file with the Securities and Exchange
Commission (the "Commission") and to execute, in the case of the 1933 Act
Registration Statement and 1934 Act Registration Statement (as herein defined),
on behalf of the Trust, (a) the 1933 Act Registration Statement, including pre-
effective or post-effective amendments to such Registration Statement, with
exhibits thereto, and any registration statements filed under
Rule 462(b), relating to the registration under the Securities Act of 1933, as
amended (the "1933 Act"), of the Preferred Securities of the Trust, (b) any
preliminary prospectus or prospectus or supplement thereto relating to the
Preferred Securities required to be filed pursuant to Rule 424 under the 1933
Act, and (c) a Registration Statement on Form 8-A or other appropriate form (the
"1934 Act Registration Statement") (including all pre-effective and post-
effective amendments thereto) relating to the registration of the Preferred
Securities of the Trust under Section 12(b) of the Securities Exchange Act of
1934, as amended; (ii) to file with the New York Stock Exchange and execute on
behalf of the Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Preferred Securities to be listed on the New York
Stock Exchange; (iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as shall be
necessary or desirable to register the Preferred Securities under the securities
or "Blue Sky" laws of such jurisdictions as the Sponsor, on behalf of the Trust,
may deem necessary or desirable; (iv) to execute, deliver and perform on behalf
of the Trust, an underwriting agreement with the Sponsor and the underwriter or
underwriters of the Preferred Securities of the Trust; (v) to execute, deliver
and perform on behalf of the Trust a purchase agreement with the Sponsor for the
purchase by the Trust of certain debt securities to be issued by the Sponsor;
and (vi) to execute, deliver and perform on behalf of the Trust, a common
securities purchase agreement with the Sponsor for the purchase by the Sponsor
of the common securities to be issued by the Trust. In the event that any filing
referred to in clauses (i)-(iii) above is required by the rules and regulations
of the Commission, the New York Stock Exchange or state securities or Blue Sky
laws to be executed on behalf of the Trust by the Trustees, the Trustees, in
their capacities as trustees of the Trust, are hereby authorized and directed to
join in any such filing and to execute on behalf of the Trust any and all of the
foregoing, it being understood that Delaware Trustee, in its capacity as trustee
of the Trust, shall not be required to join in any such filing or execute on
behalf of the Trust any such document unless required by the rules and
regulations of the Commission, the New York Stock Exchange or state securities
or Blue Sky laws. In connection with all of the foregoing, each of the Trustees,
solely in their capacities as trustees of the Trust, and the Sponsor hereby
constitutes and appoints ▇▇▇▇▇▇ ▇. ▇▇▇▇ as his or its, as the case may be, true
and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution for the Sponsor or such Trustee or in the Sponsor's or such
Trustee's name, place and stead, in any and all capacities, to sign any and all
amendments (including all pre-effective and post-effective amendments) to the
1933 Act Registration Statement and any registration statements filed under Rule
462(b) under the 1933 Act and the 1934 Act Registration Statement and to file
the same, with all exhibits thereto, and any other documents in connection
therewith, with the Commission, granting unto said attorney-in-fact and agent
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as the Sponsor or such Trustee might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent or his
respective substitute or substitutes, shall do or cause to be done by virtue
hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be two and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Sponsor which may
increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be 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. Subject to the foregoing, the Sponsor is entitled to
appoint or remove without cause any trustee of the Trust at any time. Any
trustee of the Trust may resign upon thirty days' prior notice to the Sponsor.
7. Wilmington Trust Company, in its capacity as Delaware Trustee, shall
not have the powers or duties of the Trustees set forth herein (except as may be
required under the Business Trust Act) and shall be a trustee hereunder for the
sole and limited purpose of fulfilling the requirements of Section 3807 of the
Business Trust Act.
8. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (with regard to conflict of laws
principles).
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
BAY VIEW CAPITAL CORPORATION,
as Sponsor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President,
General Counsel and Secretary
WILMINGTON TRUST COMPANY, not
in its individual capacity but solely as
Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, not in his individual
capacity but solely as Trustee