Exhibit
4.12


 




 





SILICON
VALLEY BANCSHARES


 


 


to


 


 


WILMINGTON
TRUST COMPANY


 


 


Trustee


 












 


JUNIOR
SUBORDINATED INDENTURE


 


Dated
as of October 30, 2003


 




 




















 


TABLE
OF CONTENTS


 


	
  ARTICLE I
  DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

  	
   

  
	
   

  	
   

  
	
  Section 1.1

  	
  Definitions

  	
   

  
	
  Section 1.2

  	
  Compliance
  Certificate and Opinions

  	
   

  
	
  Section 1.3

  	
  Forms
  of Documents Delivered to Trustee

  	
   

  
	
  Section 1.4

  	
  Acts of Holders

  	
   

  
	
  Section 1.5

  	
  Notices, Etc to
  Trustee and Company

  	
   

  
	
  Section 1.6

  	
  Notice to Holders;
  Waiver

  	
   

  
	
  Section 1.7

  	
  Conflict with Trust
  Indenture Act

  	
   

  
	
  Section 1.8

  	
  Effect of Headings
  and Table of Contents

  	
   

  
	
  Section 1.9

  	
  Successors and
  Assigns

  	
   

  
	
  Section 1.10

  	
  Separability
  Clause

  	
   

  
	
  Section 1.11

  	
  Benefits of
  Indenture

  	
   

  
	
  Section 1.12

  	
  Governing Law

  	
   

  
	
  Section 1.13

  	
  Non-Business Days

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II SECURITY FORMS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.1

  	
  Forms Generally

  	
   

  
	
  Section 2.2

  	
  Form of Face of
  Security

  	
   

  
	
  Section 2.3

  	
  Form of Reverse of
  Security

  	
   

  
	
  Section 2.4

  	
  Additional Provisions
  Required in Global Security

  	
   

  
	
  Section 2.5

  	
  Form of Trustee’s
  Certificate of Authentication

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III THE SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.1

  	
  Title and Terms

  	
   

  
	
  Section 3.2

  	
  Denominations

  	
   

  
	
  Section 3.3

  	
  Execution,
  Authentication, Delivery and Dating

  	
   

  
	
  Section 3.4

  	
  Temporary
  Securities

  	
   

  
	
  Section 3.5

  	
  Registration,
  Transfer and Exchange

  	
   

  
	
  Section 3.6

  	
  Mutilated,
  Destroyed Lost and Stolen Securities

  	
   

  
	
  Section 3.7

  	
  Payment of
  Interest: Interest Rights Preserved

  	
   

  
	
  Section 3.8

  	
  Persons Deemed
  Owners

  	
   

  
	
  Section 3.9

  	
  Cancellation

  	
   

  
	
  Section 3.10

  	
  Computation of
  Interest

  	
   

  
	
  Section 3.11

  	
  Deferrals of
  Interest Payment Dates

  	
   

  
	
  Section 3.12

  	
  Right of Set-Off

  	
   

  
	
  Section 3.13

  	
  Agreed Tax
  Treatment

  	
   

  
	
  Section 3.14

  	
  Shortening
  of Stated Maturity

  	
   

  
	
  Section 3.15

  	
  CUSIP Numbers

  	
   

  



 

















 


	
   

  	
   

  	
   

  
	
  ARTICLE IV
  SATISFACTION AND DISCHARGE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.1

  	
  Satisfaction
  and Discharge of Indenture

  	
   

  
	
  Section 4.2

  	
  Application
  of Trust Money

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE V
  DEFAULT AND REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.1

  	
  Events of Default

  	
   

  
	
  Section 5.2

  	
  Acceleration
  of Maturity; Rescission and Annulment

  	
   

  
	
  Section 5.3

  	
  Collection of
  Indebtedness and Suits for Enforcement by Trustee

  	
   

  
	
  Section 5.4

  	
  Trustee
  May File Proofs of Claim

  	
   

  
	
  Section 5.5

  	
  Trustee May Enforce
  Claim Without Possession of Securities

  	
   

  
	
  Section 5.6

  	
  Application of
  Money Collected

  	
   

  
	
  Section 5.7

  	
  Limitation on Suits

  	
   

  
	
  Section 5.8

  	
  Unconditional Right
  of Holders to Receive Principal Premium and Interest; Direct Action by
  Holders of Preferred Securities

  	
   

  
	
  Section 5.9

  	
  Restoration
  of Rights and Remedies

  	
   

  
	
  Section 5.10

  	
  Rights and
  Remedies Cumulative

  	
   

  
	
  Section 5.11

  	
  Delay or Omission
  Not Waiver

  	
   

  
	
  Section 5.12

  	
  Control by
  Holders

  	
   

  
	
  Section 5.13

  	
  Waiver of Past
  Defaults

  	
   

  
	
  Section 5.14

  	
  Undertaking for
  Costs

  	
   

  
	
  Section 5.15

  	
  Waiver of Usury
  Stay or Extension Laws

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI
  THE TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.1

  	
  Certain Duties and
  Responsibilities

  	
   

  
	
  Section 6.2

  	
  Notice of Defaults

  	
   

  
	
  Section 6.3

  	
  Certain
  Rights of Trustee

  	
   

  
	
  Section 6.4

  	
  Not
  Responsible for Recitals or Issuance of Securities

  	
   

  
	
  Section 6.5

  	
  May Hold
  Securities

  	
   

  
	
  Section 6.6

  	
  Money Held in
  Trust

  	
   

  
	
  Section 6.7

  	
  Compensation
  and Reimbursement

  	
   

  
	
  Section 6.8

  	
  Disqualification;
  Conflicting Interests

  	
   

  
	
  Section 6.9

  	
  Corporate
  Trustee Required; Eligibility

  	
   

  
	
  Section 6.10

  	
  Resignation
  and Removal; Appointment of Successor

  	
   

  
	
  Section 6.11

  	
  Acceptance
  of Appointment by Successor

  	
   

  
	
  Section 6.12

  	
  Merger,
  Conversion, Consolidation or Succession to Business

  	
   

  
	
  Section 6.13

  	
  Preferential
  Collection of Claims Against Company

  	
   

  
	
  Section 6.14

  	
  Appointment
  of Authenticating Agent

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII HOLDERS’ LISTS AND
  REPORTS BY TRUSTEE AND COMPANY

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.1

  	
  Company
  to Furnish Trustee Names and Addresses of Holders

  	
   

  
	
  Section 7.2

  	
  Preservation of
  Information, Communications to Holders

  	
   

  



 

















 


	
  Section 7.3

  	
  Reports by Trustee

  	
   

  
	
  Section 7.4

  	
  Reports by Company

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII CONSOLIDATION,
  MERGER, CONVEYANCE, TRANSFER OR LEASE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.1

  	
  Company
  May Consolidate, Etc., Only on Certain Terms

  	
   

  
	
  Section 8.2

  	
  Successor
  Corporation Substituted

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX
  SUPPLEMENTAL INDENTURES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.1

  	
  Supplemental
  Indentures without Consent of Holders

  	
   

  
	
  Section 9.2

  	
  Supplemental
  Indentures with Consent of Holders

  	
   

  
	
  Section 9.3

  	
  Execution
  of Supplemental Indentures

  	
   

  
	
  Section 9.4

  	
  Effect
  of Consents; Effect of  Supplemental
  Indentures

  	
   

  
	
  Section 9.5

  	
  Conformity
  with Trust Indenture Act

  	
   

  
	
  Section 9.6

  	
  Reference
  in Securities to Supplemental Indentures

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE X
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.1

  	
  Payment of
  Principal, Premium and Interest

  	
   

  
	
  Section 10.2

  	
  Maintenance of
  Office or Agency

  	
   

  
	
  Section 10.3

  	
  Money for
  Security Payments to be Held in Trust

  	
   

  
	
  Section 10.4

  	
  Statement as to
  Compliance

  	
   

  
	
  Section 10.5

  	
  Waiver of Certain
  Covenants

  	
   

  
	
  Section 10.6

  	
  Additional Sums

  	
   

  
	
  Section 10.7

  	
  Additional
  Covenants

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI
  REDEMPTION OF SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.1

  	
  Applicability of
  This Article

  	
   

  
	
  Section 11.2

  	
  Election
  to Redeem; Notice to Trustee

  	
   

  
	
  Section 11.3

  	
  Selection
  of Securities to be Redeemed

  	
   

  
	
  Section 11.4

  	
  Notice of
  Redemption

  	
   

  
	
  Section 11.5

  	
  Deposit
  of Redemption Price

  	
   

  
	
  Section 11.6

  	
  Payment
  of Securities Called for Redemption

  	
   

  
	
  Section 11.7

  	
  Right
  of Redemption of Securities Initially Issued to a SVB Trust

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII SINKING FUNDS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.1

  	
  Applicability
  of Article

  	
   

  
	
  Section 12.2

  	
  Satisfaction
  of Sinking Fund Payments with Securities

  	
   

  
	
  Section 12.3

  	
  Redemption
  of Securities for Sinking Fund

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII SUBORDINATION OF
  SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 13.1

  	
  Securities
  Subordinate to Senior Debt

  	
   

  
	
  Section 13.2

  	
  Payment
  Over of Proceeds Upon Dissolution, Etc

  	
   

  
	
  Section 13.3

  	
  Prior
  Payment to Senior Debt Upon Acceleration of Securities

  	
   

  



 

















 


	
  Section 13.4

  	
  No
  Payment When Senior Debt in Default

  	
   

  
	
  Section 13.5

  	
  Payment
  Permitted If No Default

  	
   

  
	
  Section 13.6

  	
  Subrogation
  to Rights of Holders of Senior Debt

  	
   

  
	
  Section 13.7

  	
  Provisions
  Solely to Define Relative Rights

  	
   

  
	
  Section 13.8

  	
  Trustee
  to Effectuate Subordination

  	
   

  
	
  Section 13.9

  	
  No
  Waiver of Subordination Provisions

  	
   

  
	
  Section 13.10

  	
  Notice to Trustee

  	
   

  
	
  Section 13.11

  	
  Reliance
  on Judicial Order or Certificate of Liquidating Agent

  	
   

  
	
  Section 13.12

  	
  Trustee
  Not Fiduciary for Holders of Senior Debt

  	
   

  
	
  Section 13.13

  	
  Rights
  of Trustee as Holder of Senior Debt; Preservation of Trustee’s Rights

  	
   

  
	
  Section 13.14

  	
  Article Applicable
  to Paying Agents

  	
   

  
	
  Section 13.15

  	
  Certain
  Conversions or Exchanges Deemed Payment

  	
   

  



 

















 


SILICON
VALLEY BANCSHARES


 


Reconciliation and tie
between the Trust Indenture Act of 1939 (including cross-references to
provisions of Sections 310 to and including 317 which, pursuant to
Section 318(c) of the Trust Indenture Act of 1939, as amended by the Trust
Reform Act of 1990, are a part of and govern the Indenture whether or not
physically contained therein) and the Junior Subordinated Indenture, dated as
of October 30, 2003.


 


	
  Trust Indenture

  Act Section

  	
   

  	
  Indenture

  Section

  
	
   

  	
   

  	
   

  	
   

  
	
  § 310

  	
  (a) (1), (2) and (5)

  	
   

  	
  6.9

  
	
   

  	
  (a) (3)

  	
   

  	
  Not Applicable

  
	
   

  	
  (a) (4)

  	
   

  	
  Not Applicable

  
	
   

  	
  (b)

  	
   

  	
  6.8, 6.10

  
	
   

  	
  (c)

  	
   

  	
  Not Applicable

  
	
  § 311

  	
  (a)

  	
   

  	
  6.13

  
	
   

  	
  (b)

  	
   

  	
  6.13

  
	
   

  	
  (c)

  	
   

  	
  Not Applicable

  
	
  § 312

  	
  (a)

  	
   

  	
  7.1, 7.2(a)

  
	
   

  	
  (b)

  	
   

  	
  7.2(b)

  
	
   

  	
  (c)

  	
   

  	
  7.2(c)

  
	
  § 313

  	
  (a)

  	
   

  	
  7.3(a)

  
	
   

  	
  (b)

  	
   

  	
  7.3(b)

  
	
   

  	
  (c)

  	
   

  	
  1.6, 7.3(a), 7.3(b)

  
	
   

  	
  (d)

  	
   

  	
  7.3(c)

  
	
  § 314

  	
  (a) (1), (2) and (3)

  	
   

  	
  7.4

  
	
   

  	
  (a) (4)

  	
   

  	
  7.4, 10.4

  
	
   

  	
  (b)

  	
   

  	
  Not Applicable

  
	
   

  	
  (c) (1)

  	
   

  	
  1.2

  
	
   

  	
  (c) (2)

  	
   

  	
  1.2

  
	
   

  	
  (c) (3)

  	
   

  	
  Not Applicable

  
	
   

  	
  (d)

  	
   

  	
  Not Applicable

  
	
   

  	
  (e)

  	
   

  	
  1.2

  
	
   

  	
  (f)

  	
   

  	
  Not Applicable

  
	
  § 315

  	
  (a)

  	
   

  	
  6.1 (a)

  
	
   

  	
  (b)

  	
   

  	
  1.6, 6.2

  
	
   

  	
  (c)

  	
   

  	
  6.1 (b)

  
	
   

  	
  (d)

  	
   

  	
  6.1 (c)

  
	
   

  	
  (d) (1)

  	
   

  	
  6.1 (c) (A)

  
	
   

  	
  (d) (2)

  	
   

  	
  6.1 (c) (B)

  
	
   

  	
  (d) (3)

  	
   

  	
  6.1 (c) (C)

  
	
   

  	
  (e)

  	
   

  	
  5.14

  
	
  § 316

  	
  (a)

  	
   

  	
  1.1

  



 

















 


	
  Trust Indenture

  Act Section

  	
   

  	
  Indenture

  Section

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (a)(1)(A)

  	
   

  	
  5.12

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  5.13

  
	
   

  	
  (a) (2)

  	
   

  	
  Not Applicable

  
	
   

  	
  (b)

  	
   

  	
  5.8

  
	
   

  	
  (c)

  	
   

  	
  1.4(f)

  
	
  § 317

  	
  (a) (1)

  	
   

  	
  5.3

  
	
   

  	
  (a) (2)

  	
   

  	
  5.4

  
	
   

  	
  (b)

  	
   

  	
  10.3

  
	
  §318

  	
  (a)

  	
   

  	
  1.7

  



 












Note:      This reconciliation and tie
shall not, for any purpose, be deemed to be a part of the Junior Subordinated
Indenture.


 

















 


JUNIOR SUBORDINATED
INDENTURE, dated as of October 30, 2003, between SILICON VALLEY BANCSHARES,
a Delaware corporation (hereinafter called the “Company”), having its principal office
at 3003 Tasman Drive, Santa Clara, California 95054, and Wilmington Trust
Company, as Trustee (hereinafter called the “Trustee”).


 


RECITALS
OF THE COMPANY


 


The Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of its unsecured junior subordinated debt securities
in series (hereinafter called the “Securities”) of substantially the tenor
hereinafter provided, including, without limitation, Securities issued to
evidence loans made to the Company of the proceeds from the issuance from time
to time by one or more statutory trusts (each a “SVB  Trust,” and, collectively, the “SVB Trusts”) of
preferred beneficial interests in the assets of such Trusts (the Preferred Securities”)
and common beneficial interests in the assets of such Trusts (the “Common Securities”
and, collectively with the Preferred Securities, the “Trust Securities”),
and to provide the terms and conditions upon which the Securities are to be
authenticated, issued and delivered.


 


All things necessary to
make the Securities, when executed by the Company and authenticated and
delivered hereunder and duly issued by the Company the valid obligations of the
Company, and to make this Indenture a valid agreement of the Company, in
accordance with their and its terms, have been done.


 


NOW THEREFORE, THIS
INDENTURE WITNESSETH: For and in consideration of the premises and the purchase
of the Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities or of
any series thereof, as follows:


 


ARTICLE I




DEFINITIONS AND
OTHER PROVISIONS OF GENERAL APPLICATION


 


Section 1.1             Definitions.


 


For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:


 


(a)           The terns defined in
this Article have the meanings assigned to them in this Article, and
include the plural as well as the singular;


 


(b)           All other terms used
herein which are defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them therein;


 

















 


(c)           All accounting terms
not otherwise defined herein have the meanings assigned to them in accordance
with generally accepted accounting principles, and the term “generally accepted
accounting principles” with respect to any computation required or permitted
hereunder shall mean such accounting principles which are generally accepted at
the date or time of such computation: provided, that when two or more
principles are so generally accepted, it shall mean that set of principles
consistent with those in use by the Company: and


 


(d)           The words “herein,”
“hereof” and “hereunder” and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision.


 


“1940  Act”
means the Investment Company Act of 1940, as amended.


 


“Act” when used with
respect to any Holder has the meaning specified in Section 1.4.


 


“Additional  Interest”
means the interest, if any, that shall accrue on any interest on the Securities
of any series the payment of which has not been made on the applicable Interest
Payment Date and which shall accrue at the rate per annum specified or
determined as specified in such Security.


 


“Additional  Sums”
has the meaning specified in Section 10.6.


 


“Additional  Taxes”
means the sum of any additional taxes, duties and other governmental charges to
which a SVB Trust has become subject from time to time as a result of a Tax
Event.


 


“Administrative  Trustee”
means, in respect of any SVB Trust, each Person identified as an
“Administrative Trustee” or an “Administrative Agent” in the related Trust
Agreement, solely in such Person’s capacity as Administrative Trustee or an
Administrative Agent, as the case may be, of such SVB Trust under such Trust
Agreement and not in such Person’s individual capacity, or any successor
administrative trustee or successor administrative agent, as the case may be,
appointed as therein provided.


 


“Affiliate” of any
specified Person means any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such specified
Person; provided, however, no SVB Trust to which Securities have
been issued shall be deemed to be an Affiliate of the Company.  For the purposes of this definition,
“control” when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms “controlling” and “controlled” have meanings correlative to the
foregoing.


 


“Allocable  Amounts,”
when used with respect to any Senior Debt, means all amounts due or to become
due on such Senior Debt.


 


“Amended and Restated Trust Agreement”
means the amended and restated trust agreement substantially in the form
attached here to as Annex B, or substantially in such form as may be


 


2

















 


contemplated by
Section 3.1 with respect to the Securities at any series, as amended from
time to time.


 


“Authenticating  Agent”
means any Person authorized by the Trustee pursuant to Section 6.14 to act
on behalf of the Trustee to authenticate Securities of one or more series.


 


“Board  of  Directors” means either the
board of directors of the Company or any committee of that board duly
authorized to act hereunder.


 


“Board  Resolution”
means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors,
or such committee of the Board of Directors or officers of the Company to which
authority to act on behalf of the Board of Directors has been delegated, and to
be in full force and effect on the date of such certification, and delivered to
the Trustee.


 


“Business  Day”
means any day other than (i) a Saturday or Sunday, (ii) a day on
which banking institutions in the State of California are authorized or
required by law or executive order to remain closed or (iii) a day on
which the Corporate Trust Office of the Trustee, or, with respect to the
Securities of a series initially issued to a SVB Trust, the principal office of
the Property Trustee under the related Trust Agreement, is closed for business.


 


“Capital  Treatment
Event” means the
reasonable determination by the Company that, as a result of any amendment to,
or change (including any prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision thereof or
therein, or as a result of any official or administrative pronouncement or
action or judicial decision interpreting or applying such laws or regulations,
which amendment or change is effective or such prospective change,
pronouncement or decision is announced on or after the original issuance of the
Preferred Securities of such SVB Trust, there is more than an insubstantial
risk that the Company will not be entitled to treat the Preferred Securities
(or any substantial portion thereof) as “Tier I Capital” (or the then
equivalent thereof) for purposes of the capital adequacy guidelines of the
primary federal regulator of the Company, as then in effect and applicable to
the Company.


 


“Commission” means the
Securities and Exchange Commission, as from time to time constituted, created
under the Exchange Act, or if at any time after the execution of this
instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties on such date.


 


“Common  Securities”
has the meaning specified in the first recital of this Indenture.


 


“Common  Stock”
means the common stock, $0.001 par value per share, of the Company.


 


“Company” means the
Person named as the “Company” in the first paragraph of this instrument until a
successor corporation shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Company” shall mean such
successor corporation.


 


3

















 


“Company  Request”
and “Company  Order”
mean, respectively, the written request or order signed in the name of the
Company by the Chairman of the Board of Directors, the Vice Chairman of the
Board of Directors, its Chief Executive Officer, its President or a Vice
President, and by its Chief Financial Officer, Treasurer, its Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.


 


“Corporate  Trust  Office” means the principal office
of the Trustee at which at any particular time its corporate trust business
shall be administered.


 


“Corporation” includes
a corporation, association, company, joint-stock company or business trust.


 


“Debt” means, with
respect to any Person, whether recourse is to all or a portion of the assets of
such Person and whether or not contingent, (a) every obligation of such
Person for money borrowed; (b) every obligation of such Person evidenced
by bonds, debentures, notes or other similar instruments, including obligations
incurred in connection with the acquisition of property, assets or businesses;
(c) every reimbursement obligation of such Person with respect to letters
of credit, bankers’ acceptances or similar facilities issued for the account of
such Person; (d) every obligation of such Person issued or assumed as the
deferred purchase price of property or services (but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of business);
(e) every capital lease obligation of such Person; (f) all
indebtedness of such Person whether incurred on or prior to the date of this
Indenture or thereafter incurred, for claims in respect of derivative products,
including interest rate, foreign exchange rate and commodity forward contracts,
options and swaps and similar arrangements; and (g) every obligation of
the type referred to in clauses (a) through (f) of another Person and all
dividends of another Person the payment of which, in either case, such Person
has guaranteed or is responsible or liable for, directly or indirectly, as
obligor or otherwise.


 


“Defaulted  Interest”
has the meaning specified in Section 3.7.


 


“Depositary” means,
with respect to the Securities of any series issuable or issued in whole or in
part in the form of one or more Global Securities, the Person designated as
Depositary by the Company pursuant to Section 3.1 with respect to such
series (or any successor thereto).


 


“Discount  Security”
means any security which provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.2.


 


“Distributions,” with
respect to the Trust Securities issued by a SVB Trust, means amounts payable in
respect of such Trust Securities as provided in the related Trust Agreement and
referred to therein as “Distributions.”


 


“Dollar” or “U.S. $” means the
currency of the United States of America that, as at the time of payment, is
legal tender for the payment of public and private debts.


 


4

















 


“Event  of  Default” has the meaning
specified in Article V unless otherwise specified in the supplemental
indenture or the Officers’ Certificate delivered pursuant to Section 3.1
hereof creating a series of Securities.


 


“Exchange  Act”
means the Securities Exchange Act of 1934 and the rules promulgated thereunder,
and any statute successor thereto, in each case as amended from time to time.


 


“Extension  Period”
has the meaning specified in Section 3.11.


 


“Global  Security”
means a Security in the form prescribed in Section 2.4 evidencing all or
part of a series of Securities, issued to the Depositary or its nominee for
such series, and registered in the name of such Depositary or its nominee.


 


“Guarantee  Agreement”
means the Guarantee Agreement substantially in the form attached hereto as
Annex C, or substantially in such form as may be specified as contemplated by
Section 3.1 with respect to the Securities of any series, in each case as
amended from time to time.


 


“Holder” means a
Person in whose name a Security is registered in the Securities Register.


 


“Indenture” means this
instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof or one or more Officers’
Certificates delivered pursuant to Section 3.1 and shall include the terms
of each particular series of Securities established as contemplated by
Section 3.1.


 


“Interest  Payment
Date” means as to each
series of Securities the Stated Maturity of an installment of interest on such
Securities.


 


“Investment  Company
Event” means, in
respect of a SVB Trust, the receipt by the Company and an SVB Trust of an
Opinion of Counsel, rendered by a law firm experienced in such matters, to the
effect that, as a result of change in law or regulation or a written change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority, there is more than an
insubstantial risk that such SVB Trust is or will be considered an “investment
company” that is required to be registered under the 1940 Act, which change
becomes effective on or after the date of original issuance of the Preferred
Securities of such SVB Trust.


 


“Junior  Subordinated
Payment” has the
meaning specified in Section 13.2.


 


“Liquidation Amount”
has the meaning given to it in the Trust Agreement under which the applicable
SVB Trust is formed.


 


“Maturity” when used
with respect to any Security means the date on which the principal of such
Security becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.


 


5

















 


“Notice  of  Default” means a written notice
of the kind specified in Section 5.1(c).


 


“Officers’  Certificate”
means a certificate signed by the Chairman of the Board of Directors, a Vice
Chairman of the Board of Directors, the Chief Executive Officer, the President
or a Vice President, and by the Chief Financial Officer, Treasurer, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.


 


“Opinion  of  Counsel” means a written opinion
of counsel, who may be counsel for the Company, but not including an employee
thereof, and who shall be reasonably acceptable to the Trustee.


 


“Original  Issue  Date” means the date of issuance
specified as such in each Security.


 


“Outstanding” means,
when used in reference to any Securities, as of the date of determination, all
Securities theretofore authenticated and delivered under this Indenture,
except:


 


(i)    Securities theretofore
canceled by the Trustee or delivered to the Trustee for cancellation;


 


(ii)   Securities for whose payment or
redemption money in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent in trust for the Holders of such Securities; provided
that, if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture; and


 


(iii)  Securities in substitution for
or in lieu of which other Securities have been authenticated and delivered or
which have been paid pursuant to Section 3.6, unless proof satisfactory to
the Trustee is presented that any such Securities are held by Holders in whose
hands such Securities are valid, binding and legal obligations of the Company; provided,
however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or, unless all the
Securities of a series shall then be held by an Affiliate of the Company, any
Affiliate of the Company or such other obligor shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustee knows to be so
owned shall be so disregarded. 
Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee’s right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor.  Upon the written request of the Trustee, the Company shall furnish
to the Trustee promptly an Officers’ Certificate listing and identifying all
Securities, if any, known by the Company to be owned or held by or for the
account of the Company, or any other obligor on the Securities or any Affiliate
of the Company or such obligor, and, subject to the provisions of
Section 6.1, the Trustee shall be entitled to accept such Officers’
Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Securities not listed therein are Outstanding for the purpose of
any such determination.


 


6

















 


“Paying  Agent”
means the Trustee or any Person authorized by the Company to pay the principal
of or interest on any Securities on behalf of the Company.


 


“Person” means any
individual, corporation, partnership, joint venture, trust, limited liability
company or corporation, unincorporated organization or government or any agency
or political subdivision thereof.


 


“Place  of  Payment” means, with respect to
the Securities of any series, the place or places where the principal of (and
premium, if any) and interest on the Securities of such series are payable
pursuant to Sections 3.1 and 3.11.


 


“Predecessor  Security”
of any particular Security means every previous Security evidencing all or a
portion of the same debt as that evidenced by such particular Security; and,
for the purposes of this definition, any security authenticated and delivered
under Section 3.6 in lieu of a lost, destroyed or stolen Security shall be
deemed to evidence the same debt as the lost; destroyed or stolen Security.


 


“Preferred  Securities”
has the meaning specified in the first recital of this Indenture.


 


“Proceeding” has the
meaning specified in Section 13.2.


 


“Property  Trustee”
means, in respect of any SVB Trust, the commercial bank or trust company
identified as the “Property Trustee” in the related Trust Agreement, solely in
its capacity as Property Trustee of such SVB Trust under such Trust Agreement
and not in its individual capacity, or its successor in interest in such
capacity, or any successor property trustee appointed as therein provided.


 


“Redemption  Date,”
when used with respect to any Security to be redeemed, means the date fixed for
such redemption by or pursuant to this Indenture.


 


“Redemption  Price,”
when used with respect to any Security to be redeemed, means the price at which
it is to be redeemed pursuant to this Indenture.


 


“Regular  Record  Date” for the interest payable
on any Interest Payment Date with respect to the Securities of a series means,
the date which is fifteen days next preceding such Interest Payment Date
(whether or not a Business Day).


 


“Representative” means
the (a) indenture trustee or other trustee, agent or representative for any
Senior Debt or (b) with respect to any Senior Debt that does not have any such
trustee, agent or representative, (i) in the case of such Senior Debt issued
pursuant to any agreement providing for voting arrangements among the holders
or owners of such Senior Debt, any holder or owner of such Senior Debt acting
with the consent of the required persons necessary to bind such holders or
owners of such Senior Debt and (ii) in the case of all other such Senior Debt,
the holder or owner of such Senior Debt.


 


7

















 


“Responsible  Officer”
when used with respect to the Trustee means any officer of the Trustee assigned
by the Trustee from time to time to administer its corporate trust matters.


 


“Securities” or “Security” means any
debt securities or debt security, as the case may be, authenticated and
delivered under this Indenture.


 


“Securities  Register”
and “Securities  Registrar”
have the respective meanings specified in Section 3.5.


 


“Senior  Debt”
means the principal of (and premium, if any) and interest, if any (including
interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company whether or not such claim for
post-petition interest is allowed in such proceeding), on Debt of the Company,
whether incurred on or prior to the date of this Indenture or thereafter
incurred, unless, in the instrument creating or evidencing the same or pursuant
to which the same is outstanding, it is provided that such obligations are not
superior in right of payment to the Securities, or to other Debt which is pari passu
with, or subordinated to the Securities, provided, however, that
Senior Debt shall not be deemed to include (a) any Debt of the Company
which, when incurred and without respect to any election under Section 1111(b)
of the Bankruptcy Reform Act of 1978, as amended, was without recourse to the
Company, (b) any Debt of the Company to any of its Subsidiaries,
(c) Debt to any employee of the Company, (d) any Securities and (e)
the Company’s 8.25% Junior Subordinated Deferrable Interest Debentures; provided
further, that Senior Debt shall be deemed to include the Company’s Zero
Coupon Convertible Subordinated Notes due June 15, 2008.


 


“Special  Record  Date” for the payment of any
Defaulted Interest means a date fixed by the Trustee pursuant to
Section 3.7.


 


“Stated  Maturity”
when used with respect to any Security or any installment of principal thereof
or interest thereon means the date specified pursuant to the terms of such
Security as the date on which the principal of such Security or such
installment of interest is due and payable, in the case of such principal, as
such date may be shortened or extended as provided pursuant to the terms of
such Security and this Indenture.


 


“Subsidiary” means a
corporation more than 50% of the outstanding voting stock of which is owned,
directly or indirectly, by the Company or by one or more other Subsidiaries, or
by the Company and one or more other Subsidiaries.  For purposes of this definition, “voting stock” means stock which
ordinarily has voting power for the election of directors, whether at all times
or only so long as no senior class of stock has such voting power by reason of
any contingency.


 


“SVB  Guarantee”
means the guarantee by the Company of distributions on the Preferred Securities
of a SVB Trust to the extent provided in the related Guarantee Agreement.


 


“SVB  Trust”
has the meaning specified in the first recital of this Indenture.


 


8

















 


“Tax  Event”
means the receipt by the Company and any SVB Trust of an Opinion of Counsel (as
defined in the relevant Trust Agreement) experienced in such matters to the
effect that, as a result of 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, or as a result of any official administrative pronouncement or
judicial decision interpreting or applying such laws or regulations, which
amendment or change is effective or such prospective change, pronouncement or
decision is announced on or after the original issuance of the Preferred
Securities of such SVB Trust, there is more than an insubstantial risk that
(a) such SVB Trust is, or will be within 90 days of the date of such
Opinion of Counsel, subject to United States Federal income tax with respect to
income received or accrued on the corresponding series of Securities,
(b) interest payable by the Company on such corresponding series of
Securities is not, or within 90 days of the date of such Opinion of Counsel
will not be, deductible by the Company, in whole or in part, for United States
Federal income tax purposes or (c) such SVB Trust is, or will be within 90
days of the date of such Opinion of Counsel, subject to more than a de minimis amount of other taxes, duties
or other governmental charges.


 


“Trust  Agreement”
means the Trust Agreement substantially in the form attached hereto as Annex A,
as amended by the form of Amended and Restated Trust Agreement substantially in
the form attached hereto as Annex B, or substantially in such form as may be
specified as contemplated by Section 3.1 with respect to the Securities of
any series, in each case as amended from time to time.


 


“Trustee” means the
Person named as the “Trustee” in the first paragraph of this instrument until a
successor Trustee shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter “Trustee” shall mean or include each Person
who is then a Trustee hereunder and, if at any time there is more than one such
Person, “Trustee” as used with respect to the Securities of any series shall
mean the Trustee with respect to Securities of that series.


 


“Trust  Indenture
Act” means the Trust
Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbb), as amended and as in
effect on the date as of this Indenture, except as provided in
Section 9.5.


 


“Trust  Securities”
has the meaning specified in the first recital of this Indenture.


 


“Vice  President”
when used with respect to the Company, means any duly appointed vice president,
whether or not designated by a number or a word or words added before or after
the title “vice president.”


 


Section 1.2             Compliance
Certificate and Opinions.


 


Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers` Certificate stating that all conditions precedent (including
covenants, compliance with which constitutes a condition precedent), if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent (including covenants; compliance with which
constitute a condition precedent), if any,


 


9

















 


have been complied with,
except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.


 


Every certificate or
opinion with respect to compliance with a condition or covenant provided for in
this Indenture (other than the certificates provided pursuant to
Section 10.4) shall include:


 


(1)           a statement that each
individual signing such certificate or opinion has read such covenant or
condition and the definitions herein relating thereto;


 


(2)           a brief statement as to
the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based;


 


(3)           a statement that, in
the opinion of each such individual, he has made such examination or investigation
as is necessary to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with, and


 


(4)           a statement as to
whether, in the opinion of each such individual, such condition or covenant has
been complied with.


 


Section 1.3             Forms
of Documents Delivered to Trustee.


 


In any case where several
matters are required to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.


 


Any certificate or
opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by,
counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
matters upon which his certificate or opinion is based are erroneous.  Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.


 


Where any Person is
required to make, give or execute two or more applications, requests, consents,
certificates, statements, opinions, or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.


 


10

















 


Section 1.4             Acts of
Holders.


 


(a)           Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given to or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent or proxy duly appointed in writing; and,
except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments is or are delivered to the
Trustee, and, where it is hereby expressly required, to the Company.  Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the “Act”
of the Holders signing such instrument or instruments.  Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 6.1) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.


 


(b)           The fact and date of
the execution by any Person of any such instrument or writing may be proved by
the affidavit of a witness of such execution or by the certificate of any
notary public or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. 
Where such execution is by a Person acting in other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority.


 


(c)           The fact and date of
the execution by any Person of any such instrument or writing, or the authority
of the Person executing the same, may also be proved in any other manner which
the Trustee deems sufficient and in accordance with such reasonable rules as
the Trustee may determine.


 


(d)           The ownership of
Securities shall be proved by the Securities Register.


 


(e)           Any request, demand,
authorization, direction, notice, consent, waiver or other action by the Holder
of any Security shall bind every future Holder of the same Security and the
Holder of every Security issued upon the transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done or suffered to be done
by the Trustee or the Company in reliance thereon, whether or not notation of
such action is made upon such Security.


 


(f)            The Company may set
any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to give, make or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders of Securities of such series; provided  that the Company
may not set a record date for, and the provisions of this paragraph shall not
apply with respect to, the giving or making of any notice, declaration, request
or direction referred to in the next paragraph.  If any record date is set pursuant to this paragraph, the Holders
of Outstanding Securities of the relevant series on such record date, and no
other Holders, shall be entitled to take the relevant action, whether or not
such Holders remain Holders after such record date, provided  that
no such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date (as defined below) by Holders of the requisite
principal amount of Outstanding Securities of such series


 


11

















 


on such record date. 
Nothing in this paragraph shall be construed to prevent the Company from
setting a new record date for any action for which a record date has previously
been set pursuant to this paragraph (whereupon the record date previously set
shall automatically and with no action by any Person be canceled and of no
effect), and nothing in this paragraph shall be construed to render ineffective
any action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken.  Promptly after any record date is set
pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 1.6.


 


The Trustee may set any
day as a record date for the purpose of determining the Holders of Outstanding
Securities of any series entitled to join in the giving or making of
(i) any Notice of Default, (ii) any declaration of acceleration
referred to in Section 5.2, (iii) any request to institute
proceedings referred to in Section 5.7(b) or (iv) any direction
referred to in Section 5.12, in each case with respect to Securities of
such series.  If any record date is set
pursuant to this paragraph, the Holders of Outstanding Securities of such
series on such record date, and no other Holders, shall be entitled to, join in
such notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date, provided  that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. 
Nothing in this paragraph shall be construed to prevent the Trustee from
setting a new record date for any action for which a record date has previously
been set pursuant to this paragraph (whereupon the record date previously set
shall automatically and with no action by any Person be canceled and of no
effect), and nothing in this paragraph shall be construed to render ineffective
any action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken.  Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 1.6.


 


With respect to any
record date set pursuant to this Section, the party hereto which sets such
record dates may designate any day as the “Expiration  Date” and from time to time may change
the Expiration Date to any earlier or later day, provided  that no
such change shall be effective unless notice of the proposed new Expiration
Date is given to the other party hereto in writing, and to each Holder of
Securities of the relevant series in the manner set forth in Section 1.6,
on or prior to the existing Expiration Date. 
If an Expiration Date is not designated with respect to any record date
set pursuant to this Section, the party hereto which set such record date shall
be deemed to have initially designated the 180th day after such record date as
the Expiration Date with respect thereto, subject to its right to change the
Expiration Date as provided in this paragraph. 
Notwithstanding the foregoing, no Expiration Date shall be later than
the 180th day after the applicable record date.


 


(g)           Without limiting the
foregoing, a Holder entitled hereunder to take any action hereunder with regard
to any particular Security may do so with regard to all or any part of the


 


12

















 


principal amount of such Security or by one or more
duly appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.


 


Section 1.5             Notices, Etc  to Trustee and Company.


 


Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,


 


(a)           the Trustee by any
Holder, any holder of Preferred Securities or the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, or


 


(b)           the Company by the
Trustee, any Holder or any holder of Preferred Securities shall be sufficient
for every purpose (except as otherwise provided in Section 5.1) hereunder
if in writing and mailed, first class, postage prepaid, to the Company,
addressed to it at the address of its principal office specified in the first
paragraph of this instrument or at any other address previously furnished in
writing to the Trustee by the Company.


 


Section 1.6             Notice to Holders; Waiver.


 


Where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first class postage prepaid, to each Holder affected by such event, at the
address of such Holder as it appears in the Securities Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice.  In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders.  Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.


 


Section 1.7             Conflict with Trust Indenture Act.


 


If any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by any of
Sections 310 to 317, inclusive, of the Trust Indenture Act through
operation of Section 318(c) thereof, such imposed duties shall control.


 


Section 1.8             Effect of Headings and Table of Contents.


 


The Article and
Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.


 


13

















 


Section 1.9             Successors and Assigns.


 


All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.


 


Section 1.10           Separability Clause.


 


In case any provision in
this Indenture or in the Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.


 


Section 1.11           Benefits of Indenture.


 


Nothing in this Indenture
or in the Securities, express or implied, shall give to any Person, other than
the parties hereto and their successors and assigns, the Holders of Senior
Debt, the Holders of the Securities and, to the extent expressly provided in
Sections 5.2, 5.8, 5.9, 5.11, 5.13, 9.1 and 9.2, the holders of Preferred
Securities, any benefit or any legal or equitable right, remedy or claim under
this Indenture.


 


Section 1.12           Governing Law.


 


This Indenture and the
Securities shall be governed by and construed in accordance with the laws of
the State of California, without regard to conflicts of laws principles
thereof, except that the immunities and standard of care of the Trustee shall
be governed by Delaware law.


 


Section 1.13           Non-Business Days.


 


In any case where any
Interest Payment Date, Redemption Date or Stated Maturity of any Security shall
not be a Business Day, then (notwithstanding any other provision of this
Indenture or the Securities) payment of interest or principal (and premium, if
any) need not be made on such date, but may be made on the next succeeding
Business Day (and no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the case may be,
until such next succeeding Business Day) with the same force and effect as if made
on the Interest Payment Date or Redemption Date or at the Stated Maturity.


 


ARTICLE II




SECURITY FORMS


 


Section 2.1             Forms Generally.


 


The Securities of
each series shall be in substantially the forms set forth in this Article, or
in such other form or forms as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions,


 


14

















 


substitutions and other
variations as are required or permitted by this Indenture and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with applicable tax
laws or the rules of any securities exchange or as may, consistently herewith,
be determined by the officers executing such securities, as evidenced by their
execution of the Securities.  If the
form of Securities of any series is established by action taken pursuant to a
Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.3 with respect to the authentication and
delivery of such Securities.


 


The Trustee’s
certificates of authentication shall be substantially in the form set forth in
this Article.


 


The definitive Securities
shall be printed, lithographed or engraved or produced by any combination of these
methods, if required by any securities exchange on which the Securities may be
listed, on a steel engraved border or steel engraved borders or may be produced
in any other manner permitted by the rules of any securities exchange on which
the Securities may be listed, all as determined by the officers executing such
Securities, as evidenced by their execution of such securities.


 


Section 2.2             Form of Face of Security.


 


SILICON VALLEY BANCSHARES


 


   %
Junior Subordinated Debenture due
          


 


	
  Registered

  	
   

  	
  Principal Amount:

  
	
  No.

  	
   

  	
  CUSIP No.:

  



 


SILICON VALLEY
BANCSHARES, a corporation organized and existing under the laws of Delaware
(hereinafter called the “Company”,
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
                 ,
or registered assigns, the principal sum of
$                 
Dollars on
                   ;
provided  that the Company may shorten the Stated Maturity of the
principal of this Security to a date not earlier than
               .  The Company further promises to pay interest
on said principal sum from                  
or from the most recent interest payment date (each such date, an “Interest Payment Date”)
on which interest has been paid or duly provided for, quarterly (subject to
deferral as set forth herein) in arrears on the
             day
of      ,      ,      
and       of each year commencing
                      
at the rate of           %
per annum, until the principal hereof shall have become due and payable, plus
Additional Interest, if any, until the principal hereof is paid or duly
provided for or made available for payment and on any overdue principal and
(without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
rate of            % per
annum, compounded quarterly.  The amount
of interest payable for any period shall be computed on the basis of twelve
30-day months and a 360-day year.  The
amount of interest payable for any partial period shall be computed on the
basis of the number of days elapsed in a 360-day year


 


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of twelve 30-day
months.  In the event that any date on
which interest is payable on this Security is not a Business Day, then a
payment of the interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), with the same force and effect as if
made on the date the payment was originally payable.  A “Business
Day”
shall mean any day other than a Saturday or Sunday a day on which banking
institutions in the State of California are authorized or required by law or
executive order to remain closed or on a day on which the Corporate Trust
Office of the Trustee, or the principal office of the Property Trustee under
the Amended and Restated Trust Agreement (hereinafter referred to) for [name of SVB Trust] is closed for business.  The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest installment, which shall be [insert Record Date] next preceding such
Interest Payment Date.  Any such
interest installment not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than
            days prior
to such Special Record Date, or be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.


 


[If applicable insert—So long as no Event
of Default has occurred and is continuing, the Company shall have the right at
any time during the term of this Security to defer payment of interest on this
Security, at any time or from time to time, for up to 20 consecutive quarterly
interest payment periods with respect to each deferral period (each an “Extension  Period”],
(during which Extension Periods the Company shall have the right to make
partial payments of interest on any interest Payment Date, and at the end of
which the Company shall pay all interest then accrued and unpaid (together with
Additional Interest thereon to the extent permitted by applicable law)); provided,
however, that no Extension Period shall extend beyond the Stated
Maturity of the principal of this Security; provided, further,
that during any such Extension Period, the Company shall not, and shall not
permit any Subsidiary of the Company to, (i) declare or pay any dividends
or distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of the Company’s capital stock (which includes common and
preferred stock), (ii) make any payment of principal of or interest or
premium, if any, on or repay, repurchase or redeem any debt security of the
Company (including Securities issued by the Company pursuant to the Indenture
other than she Securities represented by this certificate) that ranks pari passu with or junior in interest to
this Security, (iii) make any guarantee payments with respect to any
guarantee by the Company of the debt securities of any Subsidiaries of the
Company (if such guarantee ranks pari passu
in all respects with or junior in interest to this Security) (other than, with
respect to the foregoing clauses (i) through (iii), (a) dividends or
distributions in capital stock of the Company (which includes common and
preferred stock), (b) any declaration of a dividend in connection with the
implementation of a stockholders’ rights plan, or the issuance of stock under
any such plan in the future or the redemption or repurchase of any such rights
pursuant thereto, (c) payments under the SVB Guarantee related to


 


16

















 


the Preferred Securities
issued by [name of SVB Trust],
and (d) purchases of Common Stock related to the issuance of Common Stock
or rights under any of the Company’s benefit plans for its directors, officers
or employees) or (iv) redeem, purchase or acquire less than all of the
Securities of this series or any of the Preferred Securities.  Prior to the termination of any such
Extension Period, the Company may further extend such Extension Period, provided that such extension does not
cause such Extension Period to exceed
          consecutive interest
payment periods or to extend beyond the Stated Maturity.  Upon the termination of any such Extension Period
and upon the payment of all amounts then due on any Interest Payment Date, and
subject to the foregoing limitation, the Company may elect to begin a new
Extension Period.  No interest shall be
due and payable during an Extension Period except at the end thereof The
Company shall give the Trustee, the Property Trustee and the Administrative
Trustees of [name of SVB Trust]
notice of its election to begin any Extension Period at least
        Business Days prior to the earlier
of (i) the date on which Distributions on the Preferred Securities would
be payable except for the election to begin such Extension Period, or
(ii) the date the Administrative Trustees are required to give notice to
the New York Stock Exchange, the Nasdaq National Market or other applicable
stock exchange or automated quotation system on which the Preferred Securities
are then listed or quoted or to holders of such Preferred Securities of the
record date or (iii) the date such Distributions are payable, but in any
event not less than        Business Days prior to
such record date.  The Trustee shall
give notice of the Company’s election to begin a new Extension Period to the
holders of the Preferred Securities. 
There is no limitation on the number of times that the Company may elect
to begin an Extension Period.]


 


Payment of the principal
of (and premium, if any) and interest on this Security will be made at the
office or agency of the Trustee or at the office of such paying agent or paying
agents as the Company may designate from time to time, maintained for that
purpose in the United States, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the
Company payment of interest may be made (i) by check mailed to the address
of the Person entitled thereto as such address shall appear in the Securities
Register or (ii) by transfer to an account maintained by the person
entitled thereto, in immediately available funds, at such place and to such
account as may be designated by the Person entitled thereto as specified in the
Securities Register.


 


The indebtedness
evidenced by this Security is, to the extent provided in the Indenture,
unsecured and will rank junior and subordinate and subject in right of payments
to the prior payment in full of all Senior Debt, and this Security is issued
subject to the provisions of the Indenture with respect thereto.  Each Holder of this Security, by accepting
the same, (a) agrees to and shall be bound by such provisions,
(b) authorizes and directs the Trustee on his behalf to take such actions
as may be necessary or appropriate to effectuate the subordination so provided
and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes.  Each Holder hereof, by his
acceptance hereof, waives all notice of the acceptance of the subordination
provisions contained herein and in the Indenture by each holder of Senior Debt,
whether now outstanding or hereafter incurred, and waives reliance by each such
holder upon said provisions.


 


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Reference is hereby made
to the further provisions of this Security set forth on the reverse hereof,
which further provisions shall for all purposes have the same effect as if set
forth at this place.


 


Unless the certificate of
authentication hereon has been executed by the Trustee referred to on the
reverse hereof by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.


 


This Security is not a
savings account or deposit or other obligation of a bank and is not insured by
the Federal Deposit Insurance Corporation, by any other governmental agency, or
otherwise.


 


IN WITNESS WHEREOF, the
Company has caused this instrument to be duly executed under its corporate
seal.


 


	
   

  	
  SILICON VALLEY
  BANCSHARES

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  [President
  or Vice President]

  
	
   

  	
   

  
	
   

  	
   

  
	
  Attest:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Secretary
  or Assistant Secretary]

  	
   

  
					



 


Section 2.3             Form of Reverse of Security.


 


This Security is one of a
duly authorized issue of securities of the Company (herein called the “Securities”), issued
and to be issued in one or more series under a Junior Subordinated Indenture,
dated as of October 30, 2003 (herein called the “Indenture”), between
the Company and Wilmington Trust Company, as Trustee (herein called the “Trustee”, which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Trustee, the Company and the Holders of the Securities, and of the terms
upon which the Securities are, and are to be, authenticated and delivered.  This Security is one of the series
designated on the face hereof, limited in aggregate principal amount to
$                       .


 


All terms used in this
Security that are defined in the Indenture and in the Amended and Restated
Trust Agreement, dated as of
                   ,
2003, as amended (the “Amended
and  Restated  Trust  Agreement”), for [insert name of trust] among Silicon
Valley Bancshares, as Depositor, and the Trustees named therein, shall have the
meanings assigned to them in the Indenture or the Amended and Restated Trust
Agreement, as the case may be.


 


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[If
applicable, insert—The Company may at any time, at its
option, on or after
                ,
and subject to the terms and conditions of Article XI of the Indenture,
and subject to the Company having received any necessary regulatory approval to
do so if then required under applicable capital guidelines or policies, redeem
this Security [in whole at any time] [or in part from time to time], at a
redemption price equal to [insert redemption
price] to the Redemption Date.]


 


[If
applicable, insert—Upon the occurrence and during the
continuation of a Tax Event, Investment Company Event or Capital Treatment
Event in respect of a SVB Trust, the Company may, at its option, and subject to
the Company having received any necessary regulatory approval to do so if then
required under applicable capital guidelines or policies, at any time within 90
days of the occurrence of such Tax Event, Investment Company Event or Capital
Treatment Event redeem this Security, [if
applicable, insert–in whole but not in part], subject to the
provisions of Section 11.7 and the other provisions of Article XI of
the Indenture, at a redemption price equal to [insert
redemption price] to the Redemption Date.]


 


[If
applicable, insert—In the event of redemption of this
Security in part only, a new Security or Securities of this series for the
portion hereof not redeemed will be issued in the name of the Holder hereof
upon the cancellation hereof.]


 


The Indenture contains
provisions for satisfaction and discharge of the entire indebtedness of this
Security upon compliance by the Company with certain conditions set forth in
the Indenture.


 


The Indenture permits,
with certain exceptions as therein provided, the Company and the Trustee at any
time to enter into a supplemental indenture or indentures for the purpose of
modifying in any manner the rights and obligations of the Company and of the
Holders of the Securities, with the consent of the Holders of not less than a
majority in principal amount of the Outstanding Securities of each series to be
affected by such supplemental indenture. 
The Indenture also contains provisions permitting Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences.  Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.


 


[If the
Security is not a Discount Security, —As provided in and
subject to the provisions of the Indenture, if an Event of Default with respect
to the Securities of this series at the time Outstanding occurs and is
continuing, then and in every such case the Trustee or the Holders of not less
than 25% in principal amount of the Outstanding Securities of this series may
declare the principal amount of all the Securities of this series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), provided  that, in the case of the
Securities of this series issued to a SVB Trust, if upon the occurrence and
during the continuance of an Event of Default, the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Securities of this
series fails to declare the principal of all the Securities of this series to
be immediately due and payable, the holders of at least 25% in aggregate
Liquidation Amount of the


 


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Preferred Securities then
outstanding shall have such right by a notice in writing to the Company and the
Trustee; and upon any such declaration the principal amount of and the accrued
interest (including any Additional Interest) on all the Securities of this
series shall become immediately due and payable, provided  that
the payment of principal and interest (including any Additional Interest) on
such Securities shall remain subordinated to the extent provided in
Article XIII of the Indenture.]


 


[If the
Security is a Discount Security, —As provided in and subject
to the provisions of the Indenture, if an Event of Default with respect to the Securities
of this series at the time Outstanding occurs and is continuing, then and in
every such case the Trustee or the Holders of not less than such portion of the
principal amount as may be specified in the terms of this series may declare an
amount of principal of the Securities of this series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), provided  that, in the case of the Securities of this
series issued to a SVB Trust, if upon an Event of Default, the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of this series fails to declare the principal of all the Securities of this
series to be immediately due and payable, the holders of at least 25% in
aggregate Liquidation Amount of the Preferred Securities then outstanding shall
have such right by a notice in writing to the Company and the Trustee.  Such amount shall be equal to [insert formula for determining the amount].  Upon any such declaration, such amount of
the principal of and the accrued interest (including any Additional Interest)
on all the Securities of this series shall become immediately due and payable, provided
that the payment of principal and interest (including any Additional Interest)
on such Securities shall remain subordinated to the extent provided in
Article XIII of the Indenture. 
Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal and overdue interest
(in each case to the extent that the payment of such interest shall be legally
enforceable), all of the Company’s obligations in respect of the payment of the
principal of and interest, if any, on this Security shall terminate.]


 


No reference herein to
the Indenture and no provision of this Security or of the Indenture shall alter
or impair the obligation of the Company, which is absolute and unconditional,
to pay the principal of (and premium, if any) and interest on this Security at
the times, place and rate, and in the coin or currency, herein prescribed.


 


As provided in the
Indenture and subject to certain limitations therein set forth, the transfer of
this Security is registrable in the Securities Register, upon surrender of this
Security for registration of transfer at the office or agency of the Company
maintained under Section 10.2 of the Indenture duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Securities Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities
of this series, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.  No service charge shall be made for any such
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.


 


Prior to due presentment
of this Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name this


 


20

















 


Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.


 


The Securities of
this series are issuable only in registered form without coupons in
denominations of minimum denominations of $25 and any integral multiples of $25
in excess thereof.  As provided in the
Indenture and subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal amount of
Securities of such series of a different authorized denomination, as requested
by the Holder surrendering the same.


 


The Company and, by its
acceptance of this Security or a beneficial interest therein, the Holder of,
and any Person that acquires a beneficial interest in, this Security agree that
for United States Federal, state and local tax purposes, each of the
aforementioned Persons shall treat this Security as indebtedness.


 


THE INDENTURE AND THIS
SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.


 


Section 2.4            Additional Provisions Required in Global
Security.


 


Any Global Security
issued hereunder shall, in addition to the provisions contained in
Sections 2.2 and 2.3, bear a legend in substantially the following form:


 


“THIS SECURITY IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY.  THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY.”


 


Section 2.5             Form of Trustee’s Certificate of Authentication.


 


This is one of the
Securities referred to in the within mentioned Indenture.


 


	
  Dated:

  
	
   

  
	
   

  	
  [INSERT NAME OF
  TRUSTEE]

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Officer

  



 


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ARTICLE III




THE SECURITIES


 


Section 3.1             Title and Terms.


 


The aggregate principal
amount of Securities which may be authenticated and delivered under this Indenture
is unlimited.


 


The Securities may be
issued in one or more series.  There
shall be established in or pursuant to a Board Resolution, and set forth in an
Officers’ Certificate (such Officers’ Certificate shall have the effect of a supplemental
indenture for all purposes hereunder), or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of a series:


 


(a)           the title of the
securities of such series, which shall distinguish the Securities of the series
from all other Securities;


 


(b)           the limit, if any, upon
the aggregate principal amount of the Securities of such series which may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the series pursuant to
Section 3.4, 3.5, 3.6, 9.6 or 11.6 and except for any Securities which,
pursuant to Section 3.3, are deemed never to have been authenticated and
delivered hereunder): provided, however, that the authorized
aggregate principal amount of such series may be increased above such amount by
a Board Resolution to such effect;


 


(c)           the Stated Maturity or
Maturities on which the principal of the Securities of such series is payable
or the method of determination thereof;


 


(d)           the rate or rates, if
any, at which the Securities of such series shall bear interest, if any, the
rate or rates and extent to which Additional Interest, if any, shall be payable
in respect of any Securities of such series, the Interest Payment Dates on
which such interest shall be payable, the right, pursuant to Section 3.11
or as otherwise set forth therein, of the Company to defer or extend an
Interest Payment Date, and the Regular Record Date for the interest payable on
any Interest Payment Date or the method by which any of the foregoing shall be
determined;


 


(e)           the place or places
where the principal of (and premium, if any) and interest on the Securities of
such series shall be payable, the place or places where the Securities of such
series may be presented for registration of transfer or exchange, and the place
or places where notices and demands to or upon the Company in respect of the
Securities of such series may be made;


 


(f)            the period or periods
within or the date or dates on which, if any, the price or prices at which and
the terms and conditions upon which the Securities of such series may be
redeemed, in whole or in part, at the option of the Company;


 


22

















 


(g)           the obligation or the
right, if any, of the Company to prepay, repay or purchase the Securities of
such series pursuant to any sinking fund, amortization or analogous provisions,
or at the option of a Holder thereof, and the period or periods within which,
the price or prices at which, the currency or currencies (including currency
unit or units) in which and the other terms and conditions upon which
Securities of the series shall be redeemed, repaid or purchased, in whole or in
part, pursuant to such obligation;


 


(h)           the denominations in
which any Securities of such series shall be issuable, if other than
denominations of $25 and any integral multiples of $25 in excess thereof;


 


(i)            if other than Dollars,
the currency or currencies (including currency unit or units) in which the
principal of (and premium, if any) and interest, if any, on the Securities of
the series shall be payable, or in which the Securities of the series shall be
denominated;


 


(j)            the additions,
modifications or deletions, if any, in the Events of Default or covenants of
the Company set forth herein with respect to the Securities of such series;


 


(k)           if other than the
principal amount thereof, the portion of the principal amount of Securities of
such series that shall be payable upon declaration of acceleration of the
Maturity thereof,


 


(l)            the additions or
changes, if any, to this Indenture with respect to the Securities of such
series as shall be necessary to permit or facilitate the issuance of the
Securities of such series in bearer form, registrable or not registrable as to
principal, and with or without interest coupons;


 


(m)          any index or indices
used to determine the amount of payments of principal of and premium, if any,
on the Securities of such series or the manner in which such amounts will be
determined;


 


(n)           whether the Securities
of the series, or any portion thereof, shall initially be issuable in the form
of a temporary Global Security representing all or such portion of the
Securities of such series and provisions for the exchange of such temporary,
Global Security for definitive Securities of such series;


 


(o)           if applicable, that any
Securities of the series shall be issuable in whole or in part in the form of
one or more Global Securities and, in such case, the respective Depositaries
for such Global Securities, the form of any legend or legends which shall be
borne by any such Global Security in addition to or in lieu of that set forth
in Section 2.4 and any circumstances in addition to or in lieu of those
set forth in Section 3.5 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any transfer of
such Global Security in whole or in part may be registered, in the name or
names of Persons other than the Depositary for such Global Security or a
nominee thereof;


 


(p)           the appointment of any
Paying Agent or Agents for the Securities of such series;


 


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(q)           the terms of any right
to convert or exchange Securities of such series into any other securities or
property of the Company, and the additions or changes, if any, to this
Indenture with respect to the Securities of such series to permit or facilitate
such conversion or exchange;


 


(r)            the form or forms of
the Trust Agreement, Amended and Restated Trust Agreement and Guarantee
Agreement, if different from the forms attached hereto as Annexes A, B and C,
respectively;


 


(s)           the relative degree, if
any, to which the Securities of the series shall be senior to or be
subordinated to other series of Securities in right of payment, whether such
other series of Securities are Outstanding or not; and


 


(t)            any other terms of the
Securities of such series (which terms shall not be inconsistent with the
provisions of this Indenture).


 


All Securities of any one
series shall be substantially identical except as to denomination and except as
may otherwise be provided herein or in or pursuant to such Board Resolution and
set forth in such Officers’ Certificate or in any such indenture supplemental
hereto.


 


If any of the terms of
the series are established by action taken pursuant to a Board Resolution, a
copy of an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Officers’ Certificate setting forth the
terms of the series.


 


The Securities shall be
subordinated in right of payment to Senior Debt as provided in
Article XIII.


 


Section 3.2             Denominations.


 


The Securities of each
series shall be in registered form without coupons and shall be issuable in
minimum denominations of $25 and integral multiples of $25 in excess thereof,
unless otherwise specified as contemplated by Section 3.1.


 


Section 3.3             Execution, Authentication, Delivery and Dating.


 


The Securities shall be
executed on behalf of the Company by its Chief Executive Officer, President,
Chief Financial Officer or one of its Vice Presidents and attested by its
Secretary or one of its Assistant Secretaries. 
The signature of any of these officers on the Securities may be manual
or facsimile.


 


Securities bearing the
manual or facsimile signatures of individuals who were at any time the proper
officers of the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities.  At any
time and from time to time after the execution and delivery of this Indenture,
the Company may deliver Securities of any


 


24

















 


series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities.  If the form or terms of the Securities of the series have been
established by or pursuant to one or more Board Resolutions as permitted by
Sections 2.1 and 3.1, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to
Section 6.1) shall be fully protected in relying upon, an Opinion of
Counsel stating,


 


(1)           if the form of such
Securities has been established by or pursuant to Board Resolution as permitted
by Section 2.1, that such form has been established in conformity with the
provisions of this Indenture;


 


(2)           if the terms of such
Securities have been established by or pursuant to Board Resolution as
permitted by Section 3.1, that such terms have been established in
conformity with the provisions of this Indenture; and


 


(3)           that such Securities,
when authenticated and delivered by the Trustee and issued by the Company in
the manner and subject to any conditions specified in such Opinion of Counsel,
will constitute valid and legally binding obligations of the Company
enforceable , in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’ rights and to general
equity principles.


 


If such form or terms
have been so established, the Trustee shall not be required to authenticate
such Securities if the issue of such Securities pursuant to this Indenture will
affect the Trustee’s own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.


 


Notwithstanding the
provisions of Section 3.1 and this Section 3.3, if all Securities of
a series are not to be originally issued at one time, it shall not be necessary
to deliver the Officers’ Certificate otherwise required pursuant to
Section 3.1 or the Company Order and Opinion of Counsel otherwise required
pursuant to this section at or prior to the authentication of each
Security of such series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of such series to
be issued.


 


Each Security shall be
dated the date of its authentication.


 


No Security shall be
entitled to any benefit under this Indenture or be valid or obligatory for any
purpose, unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee by the
manual signature of one of its authorized officers, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder.  Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 3.9, for all purposes of
this Indenture such Security shall be


 


25

















 


deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.


 


Section 3.4             Temporary
Securities.


 


Pending the preparation
of definitive Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any denomination, substantially of the tenor of the definitive
Securities of such series in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their
execution of such Securities.


 


If temporary Securities
of any series are issued, the Company will cause definitive Securities of such
series to be prepared without unreasonable delay.  After the preparation of definitive Securities, the temporary
Securities shall be exchangeable for definitive Securities upon surrender of
the temporary Securities at the office or agency of the Company designated for
that purpose without charge to the Holder. 
Upon surrender for cancellation of any one or more temporary Securities,
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor one or more definitive Securities of the same series of
authorized denominations having the same Original Issue Date and Stated
Maturity and having the same terms as such temporary Securities.  Until so exchanged, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.


 


Section 3.5             Registration, Transfer and Exchange.


 


The Company shall cause
to be kept at the Corporate Trust Office of the Trustee a register in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of transfers of Securities.  Such register is herein sometimes referred
to as the “Securities
Register.”
The Trustee is hereby appointed “Securities  Registrar” for the purpose of
registering Securities and transfers of Securities as herein provided.


 


Upon surrender for
registration of transfer of any Security at the office or agency of the Company
designated for that purpose, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series of any authorized
denominations, of a like aggregate principal amount, of the same Original Issue
Date and Stated Maturity and having the same terms.


 


At the option of the
Holder, Securities may be exchanged for other Securities of the same series of
any authorized denominations, of a like aggregate principal amount, of the same
Original Issue Date and Stated Maturity and having the same terms, upon
surrender of the Securities to be exchanged at such office or agency.  Whenever any securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.


 


26

















 


All Securities issued
upon any transfer or exchange of Securities shall be the valid obligations of
the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such transfer or exchange.


 


Every Security presented
or surrendered for transfer or exchange shall (if so required by the Company or
the Securities Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Securities
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.


 


No service charge shall
be made to a Holder for any transfer or exchange of Securities, but the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Securities.


 


The provisions of Clauses
(a), (b), (c) and (d) below shall apply only to Global Securities:


 


(a)           Each Global Security
authenticated under this Indenture shall be registered in the name of the
Depositary designated for such Global Security or a nominee thereof and
delivered to such Depositary or a nominee thereof or custodian therefor, and
each such Global Security shall constitute a single Security for all purposes
of this Indenture.


 


(b)           Notwithstanding any
other provision in this Indenture, no Global Security may be exchanged in whole
or in part for Securities registered, and no transfer of a Global Security in
whole or in part may be registered, in the name of any Person other than the
Depositary for such Global Security or a nominee thereof unless (i) such
Depositary (A) has notified the Company that it is unwilling or unable to
continue as Depositary for such Global Security or (B) has ceased to be a
clearing agency registered under the Exchange Act at a time when the Depositary
is required to be so registered to act as depositary, in each case unless the
Company has approved a successor Depositary within 90 days, (ii) there
shall have occurred and be continuing an Event of Default with respect to such
Global Security, (iii) the Company in its sole discretion determines that
such Global Security will be so, exchangeable or transferable or
(iv) there shall exist such circumstances, if any, in addition to or in
lieu of the foregoing as have been specified for this purpose as contemplated
by Section 3.1.


 


(c)           Subject to Clause (b)
above, any exchange of a Global Security for other Securities may be made in
whole or in part, and all Securities issued in exchange for a Global Security
or any portion thereof shall be registered in such names as the Depositary for
such Global Security shall direct.


 


(d)           Every Security
authenticated and delivered upon registration of transfer of, or in exchange
for or in lieu of, a Global Security or any portion thereof, whether pursuant
to this Section, Section 3.4, 3.6, 9.6 or 11.6 or otherwise, shall be authenticated
and delivered in the form of, and shall be, a Global Security, unless such
Security is registered in the name of a Person other than the Depositary for
such Global Security or a nominee thereof.


 


27

















 


Neither the Company nor
the Trustee shall be required, pursuant to the provisions of this Section,
(i) to issue, transfer or exchange any Security of any series during a
period beginning at the opening of business 15 days before the day of selection
for redemption of Securities pursuant to Article XI and ending at the
close of business on the day of mailing of notice of redemption or (ii) to
transfer or exchange any Security so selected for redemption in whole or in
part, except, in the case of any Security to be redeemed in part, any portion
thereof not to be redeemed.


 


Section 3.6             Mutilated, Destroyed Lost and Stolen Securities.


 


If any mutilated Security
is surrendered to the Trustee together with such security or indemnity as may
be required by the Company or the Trustee to hold each of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same issue and series of like tenor and
principal amount; having the same Original Issue Date and Stated Maturity, and
bearing a number not contemporaneously outstanding.


 


If there shall be
delivered to the Company and to the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security, and
(ii) such security or indemnity as may be required by them to hold each of
them harmless, then; in the absence of notice to the Company or the Trustee
that such Security has been acquired by a bona fide purchaser, the Company
shall execute and upon its request the Trustee shall authenticate and deliver,
in lieu of any such destroyed, lost or stolen Security, a new Security of the
same issue and series of like tenor and principal amount, having the same
Original Issue Date and Stated Maturity as such destroyed, lost or stolen Security,
and bearing a number not contemporaneously outstanding.


 


In case any such
mutilated, destroyed, lost or stolen Security has become or is about to become
due and payable, the Company in its discretion may, instead of issuing a new
Security, pay such Security.


 


Upon the issuance of any
new Security under this Section, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith.


 


Every new Security issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities duly
issued hereunder.


 


The provisions of this
Section 3.6 are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities.


 


28

















 


Section 3.7             Payment of Interest: Interest Rights Preserved.


 


Interest on any Security
of any series which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date, shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest in respect of Securities
of such series, except that, unless otherwise provided in the Securities of
such series, interest payable on the Stated Maturity of the principal of a
Security shall be paid to the Person to whom principal is paid.  The initial payment of interest on any
Security of any series which is issued between a Regular Record Date and the
related Interest Payment Date shall be payable as provided in such Security or
in the Board Resolution pursuant to Section 3.1 with respect to the
related series of Securities.


 


Any interest on any
Security which is payable, but is not timely paid or duly provided for, on any
Interest Payment Date for Securities of such series (herein called “Defaulted  Interest”), shall
forthwith cease to be payable to the registered Holder on the relevant Regular
Record Date by virtue of having been such Holder, and such Defaulted Interest
may be paid by the Company, at its election in each case, as provided in Clause
(a) or (b) below:


 


(a)           The Company may elect
to make payment of any Defaulted Interest to the Persons in whose names the
Securities of such series in respect of which interest is in default (or their
respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner.  The
Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. 
Thereupon, the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment.  The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first class,
postage prepaid, to each Holder of a Security of such series at the address of
such Holder as it appears in the Securities Register not less than 10 days
prior to such Special Record Date.  The
Trustee may, in its discretion, in the name and at the expense of the Company,
cause a similar notice to be published at least once in a newspaper,
customarily published in the English language on each Business Day and of
general circulation in the State of California, but such publication shall not
be a condition precedent to the establishment of such Special Record Date.  Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective Predecessor Securities) are
registered on such Special Record Date and shall no longer be payable pursuant
to the following Clause (b).


 


29

















 


(b)           The Company may make
payment of any Defaulted Interest in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities of the
series in respect of which interest is in default may be listed and, upon such
notice as may be required by such exchange (or by the Trustee if the Securities
are not listed), if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such payment shall be deemed
practicable by the Trustee.


 


Subject to the foregoing
provisions of this Section 3.7, each Security delivered under this
Indenture upon transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to accrue, which
were carried by such other Security.


 


Section 3.8             Persons Deemed Owners.


 


The Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name
any Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and (subject to Section 3.7) any
interest on such Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the contrary.


 


Section 3.9             Cancellation.


 


All Securities
surrendered for payment, redemption, transfer or exchange shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee, and any such
Securities and Securities surrendered directly to the Trustee for any such
purpose shall be promptly canceled by it.  
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly canceled by the Trustee. 
No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture.  All canceled
Securities shall be destroyed by the Trustee and the Trustee shall deliver to
the Company a certificate of such destruction.


 


Section 3.10           Computation of Interest.


 


Except as otherwise
specified as contemplated by Section 3.1 for Securities of any series,
interest on the Securities of each series for any period shall be computed on
the basis of a 360-day year of twelve 30-day months and interest on the
Securities of each series for any partial period shall be computed on the basis
of the number of days elapsed in a 360-day year of twelve 30-day months.


 


Section 3.11           Deferrals of Interest Payment Dates.


 


If specified as
contemplated by Section 2.1 or Section 3.1 with respect to the Securities
of a particular series, so long as no Event of Default has occurred and is
continuing, the Company shall have the right, at any time during the term of
such series, from time to time to defer the payment of interest on such
Securities for such period or periods as may be specified as contemplated by
Section 3.1 (each, an “Extension  Period”).  During Extension Periods the Company shall
have the


 


30

















 


right to make partial payments of interest on any
Interest Payment Date.  No Extension
Period shall end on a date other than an Interest Payment Date.  At the end of any such Extension Period, the
Company shall pay all interest then accrued and unpaid on the Securities
(together with Additional Interest thereon, if any, at the rate specified for
the Securities of such series to the extent permitted by applicable law); provided  however; that no Extension Period
shall extend beyond the Stated Maturity of the principal of the Securities of
such series; provided, further,
that during any such Extension Period, the Company shall not, and shall not
permit any Subsidiary to, (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of the Company’s capital stock (which includes common and
preferred stock), (ii) make any payment of principal of or interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Company (including Securities other than the Securities of such series) that
ranks pari passu in all respects
with, or junior in interest to the Securities of such series or (iii) make any
guarantee payments with respect to any guarantee by the Company of the debt
securities of any Subsidiary of the Company if such guarantee ranks pari passu with or junior in interest to
the Securities of such series (other than, with respect to the foregoing
clauses (i) through (iii), (a) dividends or distributions in capital stock
of the Company (which includes common and preferred stock), (b) any
declaration of a dividend in connection with the implementation of a
stockholders’ rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto,
(c) payments under the SVB Guarantee related to the Preferred Securities
issued by the SVB Trust holding Securities of such series, and
(d) purchases of Common Stock related to the issuance of Common Stock or
rights under any of the Company’s benefit plans for its directors, officers,
employees or consultants) or (iv) redeem, purchase or acquire less than
all of the Securities of such series or any of the Preferred Securities.  Prior to the termination of any such
Extension Period, the Company may further extend such Extension Period, provided
that such extension does not cause such Extension Period to extend
beyond the Stated Maturity of the principal of such Securities.  Upon termination of any Extension Period and
upon the payment of all accrued and unpaid interest and any Additional Interest
then due on any Interest Payment Date, the Company may elect to begin a new
Extension Period, subject to the above requirements.  No interest shall be due and payable during an Extension Period,
except at the end thereof.  The Company
shall give the Trustee, the Property Trustee and the Administrative Trustees of
the SVB Trust holding Securities of such series notice of its election of any
Extension Period (or an extension thereof) at least one Business Day prior to
the earliest of (i) the next succeeding date on which Distributions on the
Preferred Securities of such SVB Trust would be payable except for the election
to begin or extend such Extension Period or (ii) the date the
Administrative Trustees are required to give notice to the New York Stock
Exchange, the Nasdaq National Market or other applicable stock exchange or
automated quotation system on which the Preferred Securities are then listed or
quoted or to holders of such Preferred Securities of the record date or (iii) the
date such Distributions are payable, but in any event not less than one
Business Day prior to such record date. 
The Trustee shall promptly give notice of the Company’s election to
begin a new Extension Period to the holders of the Securities of such series.  There is no limitation on the number of
times that the Company may elect to begin an Extension Period.


 


31

















 


Section 3.12         Right of Set-Off.


 


With respect to the
Securities of a series issued to a SVB Trust, notwithstanding anything to the
contrary in the Indenture, the Company shall have the right to set-off any
payment it is otherwise required to make thereunder in respect of any such
Security to the extent the Company has theretofore made, or is concurrently on
the date of such payment making, a payment under the Guarantee Agreement
relating to such Security or under Section 5.8 of the Indenture.


 


Section 3.13           Agreed
Tax Treatment.


 


Each Security issued
hereunder shall provide that the Company and, by its acceptance of a Security
or a beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, such Security agree that for United States Federal,
state and local tax purposes, eac of the aforementioned Persons shall treat
such Security as indebtedness.


 


Section 3.14         Shortening of Stated
Maturity.


 


If specified as
contemplated by Section 2.1 or Section 3.1 with respect to the
Securities of a particular series, the Company shall have the right to shorten
the Stated Maturity of the principal of the Securities of such series at any
time to any date not earlier than the first date on which the Company has the
right to redeem the Securities of such series. 
In the event that the Company elects to shorten the Stated Maturity of
the Securities, it shall give notice to the Indenture Trustee, and the
Indenture Trustee shall give notice of such shortening to the holders of the
Securities no less than 60 days prior to the effectiveness thereof.


 


Section 3.15           CUSIP
Numbers.


 


The Company in issuing
the Securities may use “CUSIP” numbers (if then generally in use), and, if so,
the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience
to Holders; provided  that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.


 


ARTICLE IV


 


SATISFACTION AND
DISCHARGE


 


Section 4.1             Satisfaction
and Discharge of Indenture.


 


This Indenture shall,
upon Company Request, cease to be of further effect (except as to any surviving
rights of registration of transfer or exchange of Securities herein expressly
provided for and as otherwise provided in this Section 4.1) and the
Trustee, on demand of and at the expense of


 


32

















 


the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when


 


(a)           either


 


(i)            all Securities
theretofore authenticated and delivered (other than (A) Securities which
have been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.6 and (B) Securities for whose payment money
has theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 10.3) have been delivered to the Trustee for
cancellation; or


 


(ii)           all such Securities not
theretofore delivered to the Trustee for cancellation


 


(A)          have become due and
payable, or


 


(B)           will become due and
payable at their Stated Maturity within one year of the date of deposit, or


 


(C)           are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company, and the Company, in the case of Clause (ii) (A), (B)
or (C) above, has deposited or caused to be deposited with the Trustee as trust
funds in trust for such purpose an amount in the currency or currencies in
which the Securities of such series are payable sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and interest
(including any Additional Interest) to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;


 


(b)           the Company has paid or
caused to be paid all other sums payable hereunder by the Company; and


 


(c)           the Company has
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel
each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.


 


Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee under Section 6.7, the obligations of the Trustee to any
Authenticating Agent under Section 6.14 and, if money shall have been
deposited with the Trustee pursuant to subclause (ii) of clause (a) of this
Section, the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive.


 


33

















 


Section 4.2             Application
of Trust Money.


 


Subject to the provisions
of the last paragraph of Section 10.3, all money deposited with the
Trustee pursuant to Section 4.1 shall be held in trust and applied by the
Trustee, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent (including
the Company acting as its own Paying Agent) as the Trustee may determine, to
the Persons entitled thereto, of the principal (and premium, if any) and
interest for the payment of which such money or obligations have been deposited
with or received by the Trustee.


 


ARTICLE V


 


DEFAULT AND
REMEDIES


 


Section 5.1             Events
of Default.


 


“Event  of  Default”, wherever
used herein with respect to the Securities of any series, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):


 


(a)           default in the payment
of any interest upon any Security of that series, including any Additional
Interest in respect thereof, when it becomes due and payable, and continuance
of such default for a period of 30 days (subject to the deferral of any due
date in the case of an Extension Period); or


 


(b)           default in the payment
of the principal of (or premium, if any, on) any Security of that series at its
Stated Maturity, upon redemption, by declaration or otherwise; or


 


(c)           default in the
performance or breach, in any material respect, of any covenant of the Company
in this Indenture (other than a covenant, a default in the performance of which
is elsewhere in this Section 5.1 specifically dealt with), and continuance
of such default or breach for a period of 90 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount of
the Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied; or


 


(d)           the entry of a decree
or order by a court having jurisdiction in the premises adjudging the Company a
bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Company under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law, or appointing a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Company or of
any substantial part of its property or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order unstayed and in
effect for a period of 60 consecutive days; or


 


34

















 


(e)           the institution by the
Company of proceedings to be adjudicated a bankrupt or insolvent, or the
consent by it to the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the filing of any
such petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or of any
substantial part of its property, or the making by it of an assignment for the
benefit for creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due and its willingness to be
adjudicated a bankrupt, or the taking of corporate action by the Company in
furtherance of any such action; or


 


(f)            any other Event of
Default provided with respect to Securities of that series.


 


Section 5.2             Acceleration
of Maturity; Rescission and Annulment.


 


If an Event of Default
(other than an Event of Default specified in Section 5.1(d) or 5.1(e))
with respect to Securities of any series at the time Outstanding occurs and is
continuing, then and in every such case the Trustee or the Holders of not less
than 25% in principal amount of the Outstanding Securities of that series may
declare the principal amount (or, if the Securities of that series are Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) of all the Securities of that series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), provided  that, in the case of the
Securities of a series issued to a SVB Trust, if, upon an Event of Default, the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series fail to declare the principal of all the
Securities of that series to be immediately due and payable, the holders of at
least 25% in aggregate Liquidation Amount of the corresponding series of
Preferred Securities then outstanding shall have such right by a notice in
writing to the Company and the Trustee; and upon any such declaration such
principal amount (or specified portion thereof) of and the accrued interest
(including any Additional Interest) on all the Securities of such series shall
become immediately due and payable. 
Payment of principal and interest (including any Additional Interest) on
such Securities shall remain subordinated to the extent provided in
Article XIII notwithstanding that such amount shall become immediately due
and payable as herein provided.  If an
Event of Default specified in Section 5.1(d) or 5.1(e) with respect to
Securities of any series at the time Outstanding occurs, the principal amount
of all the Securities of that series (or, if the Securities of that series are
Discount Securities, such portion of the principal amount of such Securities as
may be specified by the terms of that series) shall automatically, and without
any declaration or other action on the part of the Trustee or any Holder,
become immediately due and payable.


 


At any time after such a
declaration of acceleration with respect to Securities of any series has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the Outstanding Securities of that
series, by written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if


 


(a)           the Company has paid or
deposited with the Trustee a sum sufficient to pay:


 


35

















 


(i)            all overdue
installments of interest (including any Additional Interest) on all Securities
of that series,


 


(ii)           the principal of (and
premium, if any, on) any Securities of that series which have become due
otherwise than by such declaration of acceleration and interest thereon at the
rate borne by the Securities, and


 


(iii)          all sums paid or
advanced by the Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel; and


 


(b)           all Events of Default
with respect to Securities of that series, other than the nonpayment of the
principal of Securities of that series which has become due solely by such
acceleration, have been cured or waived as provided in Section 5.13.


 


In the case of Securities
of a series issued to a SVB Trust, the holders of a majority in aggregate
Liquidation Amount of the related series of Preferred Securities issued by such
SVB Trust shall also have the right to rescind and annul such declaration and
its consequences by written notice to the Company and the Trustee subject to
the satisfaction of the conditions set forth in Clauses (a) and (b) above of
this Section 5.2.


 


No such rescission shall
affect any subsequent default or impair any right consequent thereon.


 


Section 5.3             Collection of Indebtedness and Suits for Enforcement
by Trustee.


 


The Company covenants
that if:


 


(a)           default is made in the
payment of any installment of interest (including any Additional Interest) on
any Security when such interest becomes due and payable and such default
continues for a period of 30 days (subject to the deferral of any due date in
the case of an Extension Period), or


 


(b)           default is made in the
payment of the principal of (and premium, if any, on) any Security at the
Maturity thereof,


 


the Company will, upon
demand of the Trustee, pay to the Trustee, for the benefit of the Holders of
such Securities, the whole amount then due and payable on such Securities for
principal, including any sinking fund payment or analogous obligations (and
premium, if any) and interest (including any Additional Interest); and, in
addition thereto, all amounts owing the Trustee under Section 6.7.


 


If the Company fails to
pay such amounts forthwith upon such demand, the Trustee, in its own name and
as trustee of an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, and may prosecute such proceeding to
judgment or final decree, and may enforce the same against the Company or any
other obligor upon the Securities and collect the 


 


36

















 


moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor upon
the Securities, wherever situated.


 


If an Event of Default
with respect to Securities of any series occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders of Securities of such series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.


 


Section 5.4             Trustee May File Proofs of Claim.


 


In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors,


 


(a)           the Trustee
(irrespective of whether the principal of the Securities of any series shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal (and premium, if any) or interest
(including any Additional Interest)) shall be entitled and empowered, by
intervention in such proceeding or otherwise,


 


(i)            to file and prove a
claim for the whole amount of principal (and premium, if any) and interest
(including any Additional Interest) owing and unpaid in respect to the
Securities and to file such other papers or documents as may be necessary or
advisable and to take any and all actions as are authorized under the Trust
Indenture Act in order to have the claims of the Holders and any predecessor to
the Trustee under Section 6.7 allowed in any such judicial proceedings;
and


 


(ii)           in particular, the
Trustee shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same in
accordance with Section 5.6; and


 


(b)           any custodian,
receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each Holder
to make such payments to the Trustee for distribution in accordance with
Section 5.6, and in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any amount due
to it and any predecessor Trustee under Section 6.7.


 


Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding; provided, however, that the 


 


37

















 


Trustee may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official and be a member of a
creditors’ or other similar committee.


 


Section 5.5             Trustee May Enforce Claim Without Possession of
Securities.


 


All rights of action and
claims under this Indenture or the Securities may be prosecuted and enforced by
the Trustee without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of all the
amounts owing the Trustee and any predecessor Trustee under Section 6.7,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.


 


Section 5.6             Application of Money Collected.


 


Any money or property
collected or to be applied by the Trustee with respect to a series of
Securities pursuant to this Article shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money or property on account of principal (or premium, if
any) or interest (including any Additional Interest), upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:


 


FIRST: To the payment of
all amounts due the Trustee and any predecessor Trustee under Section 6.7;


 


SECOND: Subject to
Article XIII, to the payment of the amounts then due and unpaid upon such
series of Securities for principal (and premium, if any) and interest
(including any Additional Interest), in respect of which or for the benefit of
which such money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such series of Securities
for principal (and premium, if any) and interest (including any Additional Interest),
respectively; and


 


THIRD: The balance, if
any, to the Person or Persons entitled thereto.


 


Section 5.7             Limitation on Suits.


 


No Holder of any
Securities of any series shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture or for the appointment of
a receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) or for any other remedy hereunder, unless:


 


(a)           such Holder has
previously given written notice to the Trustee of a continuing Event of Default
with respect to the Securities of that series;


 


38

















 


(b)           the Holders of not less
than 25% in principal amount of the Outstanding Securities of that series shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;


 


(c)           such Holder or Holders
have offered to the Trustee reasonable indemnity against the costs, expenses
and liabilities to be incurred in compliance with such request:


 


(d)           the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity has failed to
institute any such proceeding; and


 


(e)           no direction
inconsistent with such written request has been given to the Trustee during
such 60-day period by the Holders of a majority in principal amount of the
Outstanding Securities of that series;


 


it being understood and
intended that no one or more of such Holders shall have any right in any manner
whatever by virtue of, or by availing itself of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other Holders of
Securities, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.


 


Section 5.8             Unconditional Right of Holders to Receive Principal
Premium and Interest; Direct Action by Holders of Preferred Securities.


 


Notwithstanding any other
provision in this Indenture, the Holder of any Security shall have the right
which is absolute and unconditional to receive payment of the principal of (and
premium, if any) and (subject to Section 3.7) interest (including any
Additional Interest) on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
right shall not be impaired without the consent of such Holder.  In the case of Securities of a series issued
to a SVB Trust, if upon the occurrence and during the continuance of an Event
of Default, the Trustee or the Holders of not less than 25% in principal amount
of the Outstanding Securities of this series fails to declare the principal of
all the Securities of such series to be immediately due and payable, any holder
of the corresponding series of Preferred Securities issued by such SVB Trust,
shall have the right, upon the occurrence and during the continuance of an
Event of Default described in Section 5.1(a) or 5.1(b), to institute a
suit directly against the Company for enforcement of payment to such holder of
principal of (premium, if any) and (subject to Section 3.7) interest
(including any Additional Interest) on the Securities having a principal amount
equal to the aggregate Liquidation Amount of such Preferred Securities of the
corresponding series held by such holder.


 


Section 5.9             Restoration
of Rights and Remedies.


 


If the Trustee, any
Holder or any holder of Preferred Securities has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee, such Holder or such


 


39

















 


holder of Preferred Securities, then and in every such
case the Company, the Trustee, the Holders and such holder of Preferred
Securities shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee, the Holders and the holders of
Preferred Securities shall continue as though no such proceeding had been
instituted.


 


Section 5.10           Rights and Remedies Cumulative.


 


Except as otherwise
provided in the last paragraph of Section 3.6, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise.  The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.


 


Section 5.11           Delay or Omission Not Waiver.


 


No delay or omission of
the Trustee, any Holder of any Security or any holder of any Preferred Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein.


 


Every right and remedy
given by this Article or by law to the Trustee or to the Holders and the
right and remedy given to the holders of Preferred Securities by
Section 5.8 may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee, the Holders or the holders of Preferred Securities,
as the case may be.


 


Section 5.12           Control by Holders.


 


The Holders of a majority
in principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee, with respect to the Securities of such series, provided  that:


 


(a)           such direction shall
not be in conflict with any rule of law or with this Indenture.


 


(b)           the Trustee may take
any other action deemed proper by the Trustee which is not inconsistent with
such direction, and


 


(c)           subject to the
provisions of Section 6.1, the Trustee shall have the right to decline to
follow such direction if a Responsible Officer or Officers of the Trustee
shall, in good faith, determine that the proceeding so directed would be
unjustly prejudicial to the Holders not joining in any such direction or would
involve the Trustee in personal liability.


 


40

















 


Section 5.13           Waiver of Past Defaults.


 


The Holders of not less
than a majority in principal amount of the Outstanding Securities of any series
and, in the case of any Securities of a series issued to a SVB Trust, the
holders of Preferred Securities issued by such SVB Trust (as set forth in
Section 9.2) may waive any past default hereunder and its consequences
with respect to such series except a default:


 


(1)           in the payment of the
principal of (or premium, if any) or interest (including any Additional
Interest) on any Security of such series, unless such default has been cured
and a sum sufficient to pay all matured installments of interest and principal
due otherwise than by such acceleration has been deposited by the Trustee; or


 


(2)           in respect of a
covenant or provision hereof which under Article IX cannot be modified or
amended without the consent of the Holder of each Outstanding Security of such
series affected.


 


Any such waiver shall be
deemed to be on behalf of the Holders of all the Securities of such series or,
in the case of a waiver by holders of Preferred Securities issued by such SVB
Trust, by all holders of Preferred Securities issued by such SVB Trust.


 


Upon any such waiver,
such default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this Indenture, but no
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon.


 


Section 5.14           Undertaking for Costs.


 


All parties to this
Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require,
in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys’ fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 16% in principal amount of the Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest (including any Additional
Interest) on any Security on or after the respective Stated Maturities
expressed in such Security.


 


Section 5.15           Waiver of Usury Stay or Extension Laws.


 


The Company covenants (to
the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any usury, stay or extension law wherever enacted, now or at any
time hereafter in force, which may affect the covenants or the performance of
this Indenture; and the Company (to the extent that it may 


 


41

















 


lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.


 


ARTICLE VI


 


THE TRUSTEE


 


Section 6.1             Certain Duties and Responsibilities.


 


(a)           Except during the
continuance of an Event of Default;


 


(A)          the Trustee undertakes
to perform such duties and only such duties as are specifically set forth in
this Indenture, and no implied covenants or obligations shall be read into this
indenture against the Trustee; and


 


(B)           in the absence of bad
faith on its part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; provided, however that in the
case of any such certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform to
the requirements of this Indenture.


 


(b)           In case an Event of
Default has occurred and is continuing, the Trustee shall exercise such of the
rights and powers vested in it by this indenture, 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 own affairs.


 


(c)           No provision of this
Indenture shall be construed to relieve the Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct except that


 


(A)          this
Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;


 


(B)           the Trustee shall not
be liable for any error of judgment made in good faith by a Responsible
Officer, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and


 


(C)           the 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 Holders pursuant to Section 5.12
relating to the time, method and place of conducting any proceeding for any
remedy 


 


42

















 


 


 


available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture with respect to the
Securities of such series.


 


(d)           No provision of this
Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if there shall be
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.


 


(e)           Whether or not therein
expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section 6.1.


 


Section 6.2             Notice
of Defaults.


 


Within 90 days after
actual knowledge by a Responsible Officer of the Trustee of the occurrence of
any default hereunder with respect to the Securities of any series, the Trustee
shall transmit by mail to all Holders of Securities of such series, as their
names and addresses appear in the Securities Register, notice of such default,
unless such default shall have been cured or waived; provided, however,
that, except in the case of a default in the payment of the principal of (or
premium, if any) or interest (including any Additional Interest) on any
Security of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interests of the
Holders of Securities of such series; and provided, further,
that, in the case of any default of the character specified in
Section 5.13, no such notice to Holders of Securities of such series shall
be given until at least 30 days after the occurrence thereof.  For the purpose of this Section, the term
“default” means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.


 


Section 6.3             Certain
Rights of Trustee.


 


Subject to the provisions
of Section 6.1:


 


(a)           the Trustee may rely
and shall be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, Security or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
patty or parties;


 


(b)           any request or
direction of the Company mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order and any resolution of the Board of Directors
may be sufficiently evidenced by a Board Resolution;


 


(c)           whenever in the
administration of this Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or omitting any
action


 


43

















 


hereunder,
the Trustee (unless other evidence be herein specifically prescribed) may, in
the absence of bad faith on its part, rely upon an Officers’ Certificate;


 


(d)           the Trustee may consult
with counsel and the advice of such counsel or any Opinion of Counsel 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 reliance thereon;


 


(e)           the Trustee shall be
under no obligation to exercise any of the rights or powers vested in it by
this Indenture at the request or direction of any of the Holders pursuant to
this Indenture, unless such Holders, shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction;


 


(f)            the 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, indenture, Security or other paper or
document, but the Trustee in its discretion may make such inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney; and


 


(g)           the Trustee may execute
any of the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the 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.


 


Section 6.4             Not
Responsible for Recitals or Issuance of Securities.


 


The recitals contained
herein and in the Securities, except the Trustee’s certificates of authentication,
shall be taken as the statements of the Company, and neither the Trustee nor
any Authenticating Agent assumes any responsibility for their correctness.  The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities.  Neither the Trustee nor any Authenticating
Agent shall be accountable for the use or application by the Company of the
Securities or the proceeds thereof.


 


Section 6.5             May Hold
Securities.


 


The Trustee, any
Authenticating Agent, any Paying Agent, any Securities Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 6.8 and 6.13, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Securities Registrar or such
other agent.


 


44

















 


Section 6.6             Money
Held in Trust.


 


Money held by the Trustee
in trust hereunder need not be segregated from other funds except to the extent
required by law.  The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.


 


Section 6.7             Compensation
and Reimbursement.


 


The Company agrees


 


(a)           to pay to the Trustee
from time to time compensation for all services rendered by it hereunder in
such amounts as the Company and the Trustee shall agree from time to time
(which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);


 


(b)           to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence, misconduct or bad faith;
and


 


(c)           to indemnify the
Trustee for, and to hold it harmless against, any loss, liability or expense
(including the reasonable compensation and the expenses and disbursements of
its agents and counsel) incurred without negligence or bad faith, arising out
of or in connection with the acceptance or administration of this trust or the
performance of its duties hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.  This indemnification shall survive the
termination of this Indenture.


 


To secure the Company’s
payment obligations in this Section 6.7, the Company and the Holders agree
that the Trustee shall have a lien prior to the Securities on all money or
property held or collected by the Trustee. 
Such lien shall survive the satisfaction and discharge of this
Indenture.


 


When the Trustee incurs
expenses or renders services after an Event of Default specified in
Section 5.1(d) or (e) occurs, the expenses and the compensation for the
services are intended to constitute expenses of administration under the
Bankruptcy Reform Act of 1978 or any successor statute.


 


Section 6.8             Disqualification;
Conflicting Interests.


 


The Trustee for the
Securities of any series issued hereunder shall be subject to the provisions of
Section 310(b) of the Trust Indenture Act.  Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the second to last paragraph of said
Section 310(b).


 


45

















 


Section 6.9             Corporate
Trustee Required; Eligibility.


 


There shall at all times
be a Trustee hereunder which shall be


 


(a)           a corporation organized
and doing business under the laws of the United States of America or of any
State or Territory or the District of Columbia, authorized under such laws to
exercise corporate trust powers and subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority, or


 


(b)           a corporation or other
Person organized and doing business under the laws of a foreign government that
is permitted to act as Trustee pursuant to a rule, regulation or order of the
Commission, authorized under such laws to exercise corporate trust powers, and
subject to supervision or examination by authority of such foreign government
or a political subdivision thereof substantially equivalent to supervision or
examination applicable to United States institutional trustees, in either case
having a combined capital and surplus of at least $50,000,000, subject to
supervision or examination by Federal or State authority.  If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then, for the purposes of this
Section 6.9, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published.  If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 6.9, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article VI.  Neither the Company nor any Person directly
or indirectly controlling, controlled by or under common control with the
Company shall serve as Trustee for the Securities of any series issued
hereunder.


 


Section 6.10           Resignation
and Removal; Appointment of Successor.


 


(a)           No resignation or
removal of the Trustee and no appointment of a successor Trustee pursuant to
this Article VI shall become effective until the acceptance of appointment
by !he” successor Trustee under Section 6.11.


 


(b)           The Trustee may resign
at any time with respect to the Securities of one or more series by giving written
notice thereof to the Company.  If an
instrument of acceptance by a successor Trustee shall not have been delivered
to the Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.


 


(c)           The Trustee may be
removed at any time with respect to the Securities of any series by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series, delivered to the Trustee and to the Company.


 


(d)           If at any time:


 


46

















 


(i)            the Trustee shall fail
to comply with Section 6.8 after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Security for at least six
months, or


 


(ii)           the Trustee shall cease
to be eligible under Section 6.9 and shall fail to resign after written
request therefor by the Company or by any such Holder, or


 


(iii)          the Trustee shall become
incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver
of the Trustee or of its property shall be appointed or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then, in any such
case, (y) the Company, acting pursuant to the authority of a Board
Resolution, may remove the Trustee with respect to all Securities, or
(z) subject to Section 5.14, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.


 


(e)           If the Trustee shall
resign, be removed or become incapable of acting, or if a vacancy shall occur
in the office of Trustee for any cause with respect to the Securities of one or
more series, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee with respect to the Securities of that or those series.  If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy; a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment, become
the successor Trustee with respect to the Securities of such series and
supersede the successor Trustee appointed by the Company.  If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Security for at least six months may,
subject to Section 5.14, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.


 


(f)            The Company shall give
notice of each resignation and each removal of the Trustee with respect to the
Securities of any series and each appointment of a successor Trustee with
respect to the Securities of any series by mailing written notice of such event
by first-class mail, postage prepaid, to the Holders of Securities of such
series as their names and addresses appear in the Securities Register.  Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.


 


Section 6.11           Acceptance
of Appointment by Successor.


 


(a)           In case of the
appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee so appointed shall execute, acknowledge and
deliver to the


 


47

















 


Company
and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder.


 


(b)           In case of the
appointment hereunder of a successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the retiring Trustee and each
successor Trustee with respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (i) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and
to vest in, each successor Trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates, (ii) if the
retiring Trustee is not retiring with respect to all Securities, shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (iii) shall
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts, and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.


 


(c)           Upon request of any
such successor Trustee, the Company shall execute any and all instruments for
more fully and certainly vesting in and confirming to such successor Trustee
all rights, powers and trusts referred to in paragraph (a) or (b) of this
Section 6.11, as the case may be.


 


(d)           No successor Trustee
shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this Article VI.


 


48

















 


Section 6.12           Merger, Conversion, Consolidation or Succession to
Business.


 


Any corporation into
which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to al I or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this
Article VI, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. 
In case any Securities shall have been authenticated, but not delivered,
by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated, and in case any Securities shall not
have been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor Trustee or in the name of such
successor Trustee, and in all cases the certificate of authentication shall
have the full force which it is provided anywhere in the Securities or in this
Indenture that the certificate of the Trustee shall have.


 


Section 6.13           Preferential Collection of Claims Against Company.


 


If and when the Trustee
shall be or become a creditor of the Company (or any other obligor upon the
Securities), the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against the Company (or any
such other obligor).


 


Section 6.14           Appointment
of Authenticating Agent.


 


The Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 3.5, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes
as if authenticated by the Trustee hereunder. 
Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee’s certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent.  Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, or of any State
or Territory or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authority.  If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section 6.14 the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.  If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this
Section 6.14, such Authenticating Agent shall resign immediately in the
manner and with the effect specified in this Section 6.14.


 


49

















 


Any corporation into
which an Authenticating Agent may be merged or converted or with which it may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a party, or any
corporation succeeding, to all or substantially all of the corporate trust
business of an Authenticating Agent shall be the successor Authenticating Agent
hereunder, provided such corporation shall be otherwise eligible under
this Section, without the execution or filing of any paper or any further act
on the part of the Trustee or the Authenticating Agent.


 


An Authenticating Agent
may resign at any time by giving written notice thereof to the Trustee and to
the Company.  The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company.  Upon receiving such a notice of resignation
or upon such a termination, or in case at any time such Authenticating Agent
shall cease to be eligible in accordance with the provisions of this
Section 6.14, the Trustee may appoint a successor Authenticating Agent
which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.6 to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve.  Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent.  No successor Authenticating Agent shall be appointed unless
eligible under the provision of this Section 6.14.


 


The Trustee agrees to pay
to each Authenticating Agent from time to time reasonable compensation for its
services under this Section 6.14, and the Trustee shall be entitled to be
reimbursed for such payments, subject to the provisions of Section 6.7.


 


If an appointment with
respect to one or more series is made pursuant to this Section 6.14, the
Securities of such series may have endorsed thereon, in addition to the
Trustee’s certificate of authentication, an alternative certificate of
authentication in the following form:


 


This is one of the
Securities referred to in the within mentioned Indenture.


 


	
  Dated:

  	
   

  
	
   

  	
   

  
	
   

  	
  [INSERT NAME OF
  TRUSTEE]

  
	
   

  	
  As Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  As Authenticating Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Officer

  
					



 


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ARTICLE VII


 


HOLDERS’ LISTS AND
REPORTS BY TRUSTEE AND COMPANY


 


Section 7.1             Company
to Furnish Trustee Names and Addresses of Holders.


 


The Company will furnish
or cause to be furnished to the Trustee:


 


(a)           semi-annually, not more
than 15 days after January 15 and July 15 in each year, a list, in
such form as the Trustee may reasonably require, of the names and addresses of
the Holders as of January 1 and July 1 of such year, and


 


(b)           at such other times as
the Trustee may request in writing, within 30 days after the receipt by the Company
of any such request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished, excluding from any such list names and
addresses received by the Trustee in its capacity as Securities Registrar.


 


Section 7.2             Preservation of Information, Communications to
Holders.


 


(a)           The Trustee shall
preserve, in as current a form as is reasonably practicable, the names and
addresses of Holders contained in the most recent list furnished to the Trustee
as provided in Section 7.1 and the names and addresses of Holders received
by the Trustee in its capacity as Securities Registrar.  The Trustee may destroy any list furnished
to it as provided in Section 7.1 upon receipt of a new list so furnished.


 


(b)           The rights of Holders
to communicate with other Holders with respect to their rights under this
Indenture or under the Securities, and the corresponding rights and privileges
of the Trustee, shall be as provided in the Trust Indenture Act.


 


(c)           Every Holder of
Securities, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any agent of either of
them shall be held accountable by reason of the disclosure of information as to
the names and addresses of the Holders made pursuant to the Trust Indenture
Act.


 


Section 7.3             Reports by Trustee.


 


(a)           The Trustee shall
transmit to Holders such reports concerning the Trustee and its actions under
this Indenture as may be required pursuant to the Trust Indenture Act, at the
times and in the manner provided pursuant thereto.


 


(b)           Reports so required to
be transmitted at stated intervals of not more than 12 months shall be
transmitted no later than July 15 in each calendar year, commencing with
the first July 15 after the first issuance of Securities under this
Indenture.


 


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(c)           A copy of each such
report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange upon which any Securities are listed and also
with the Commission.  The Company will
notify the Trustee when any Securities are listed on any stock exchange.


 


Section 7.4             Reports by Company.


 


The Company shall file
with the Trustee and with the Commission, and transmit to Holders, such
information, documents and other reports, and such summaries thereof, as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided in the Trust Indenture Act; provided  that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act shall be
filed with the Trustee within 15 days after the same is required to be filed
with the Commission.  Notwithstanding
that the Company may not be required to remain subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the Company shall
continue to file with the Commission and provide the Trustee with the annual
reports and the information, documents and other reports which are specified in
Sections 13 and 15(d) of the Exchange Act.  The Company also shall comply with the other provisions of Trust
Indenture Act Section 314(a).


 


ARTICLE VIII


 


CONSOLIDATION,
MERGER, CONVEYANCE, TRANSFER OR LEASE


 


Section 8.1            Company May Consolidate, Etc., Only on
Certain Terms.


 


The Company shall not
consolidate with or merge into any other Person (in a transaction in which the
Company is not the surviving corporation) or convey, transfer or lease its
properties and assets substantially as an entirety to any Person, unless:


 


(a)           in case the Company
shall consolidate with or merge into another Person or convey, transfer or
lease its properties and assets substantially as an entirety to any Person, the
Person formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety shall be a
corporation, limited liability company, partnership, trust or other business
entity organized and existing under the laws of the United States of America or
any State or the District of Columbia, and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of
(and premium, if any) and interest (including any Additional Interest) on all
the Securities and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;


 


(b)           immediately after
giving effect to such transaction, no Event of Default, and no event which,
after notice or lapse of time, or both, would become an Event of Default, shall
have occurred and be continuing;


 


52

















 


(c)           the Company has
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, conveyance, transfer or lease and
any such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with; and the Trustee, subject to Section 6.1, may rely upon such
Officers’ Certificate and Opinion of Counsel as conclusive evidence that such
transaction complies with this Section 8.1.


 


Section 8.2             Successor Corporation Substituted.


 


Upon any consolidation or
merger by the Company with or into any other Person, or any conveyance,
transfer or lease by the Company of its properties and assets substantially as
an entirety to any Person in accordance with Section 8.1, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein; and in the event of any such conveyance, transfer or
lease the Company shall be discharged from all obligations and covenants under
the Indenture and the Securities and may be dissolved and liquidated.


 


Such successor Person may
cause to be signed, and may issue either in its own name or in the name of the
Company, any or all of the Securities issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee; and,
upon the order of such successor Person instead of the Company and subject to
all the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Securities which previously
shall have been signed and delivered by the officers of the Company to the
Trustee for authentication pursuant to such provisions and any Securities which
such successor Person thereafter shall cause to be signed and delivered to the
Trustee on its behalf for the purpose pursuant to such provisions.  All the Securities so issued shall in all
respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities had been issued at the date of
the execution hereof.


 


In case of any such
consolidation, merger, sale, conveyance or lease, such changes in phraseology
and form may be made in the Securities thereafter to be issued as may be
appropriate.


 


ARTICLE IX


 


SUPPLEMENTAL
INDENTURES


 


Section 9.1             Supplemental Indentures without Consent of Holders.


 


Without the consent of
any Holders, the Company, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:


 


53

















 


(a)           to evidence the
succession of another Person to the Company, and the assumption by any such
successor of the covenants of the Company herein and in the Securities
contained; or


 


(b)           to convey, transfer,
assign, mortgage or pledge any property to or with the Trustee or to surrender
any right or power herein conferred upon the Company; or


 


(c)           to establish the form
or terms of Securities of any series as permitted by Sections 2.1 or 3.1; provided,
however, that the form and terms of Securities of any series may be
established by a Board Resolution, as set forth in the Officers’ Certificate
delivered to the Trustee pursuant to Section 3.1, without entering into a
supplemental indenture for all purposes hereunder; or


 


(d)           to add to the covenants
of the Company for the benefit of the Holders of all or any series of
Securities (and if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or power
herein conferred upon the Company; or


 


(e)           to add any additional
Events of Default for the benefit of the Holders of all or any series of
Securities (and if such additional Events of Default are to be for the benefit
of less than all series of Securities, stating that such additional Events of
Default are expressly being included solely for the benefit of such series); or


 


(f)            to change or eliminate
any of the provisions of this Indenture, provided  that any such
change or elimination shall become effective only when there is no Security
Outstanding of any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision; or


 


(g)           to cure any ambiguity,
to correct or supplement any provision herein which may be defective or
inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Indenture, provided
that such action pursuant to this clause (g) shall not adversely affect
the interest of the Holders of Securities of any series in any material respect
or, in the case of the Securities of a series issued to a SVB Trust and for so
long as any of the corresponding series of Preferred Securities issued by such
SVB Trust shall remain outstanding, the holders of such Preferred Securities;
or


 


(h)           to evidence and provide
for the acceptance of appointment hereunder by a successor Trustee with respect
to the Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 6.11(b); or


 


(i)            to comply with the
requirements of the Commission in order to effect or maintain the qualification
of this Indenture under the Trust Indenture Act.


 


54

















 


Section 9.2             Supplemental
Indentures with Consent of Holders.


 


With the consent of the
Holders of not less than a majority in principal amount of the Outstanding
Securities of each series affected by such supplemental indenture, by Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the Holders of Securities
of such series under this Indenture; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:


 


(a)           except to the extent
permitted by Sections 3.11 or 3.14 or as otherwise specified as
contemplated by Section 2.1 or Section 3.1 with respect to the
deferral of the payment of interest on the Securities of any series or the
shortening of the Stated Maturity of the Securities of any series, change the
Stated Maturity of the principal of, or any installment of interest (including
any Additional Interest) on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or reduce any premium payable upon the
redemption thereof, or reduce the amount of principal of a Discount Security
that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.2, or change the place of payment
where, or the coin or currency in which, any Security or interest thereon is
payable, or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of redemption,
on or after the Redemption Date), or


 


(b)           reduce the percentage
in principal amount of the Outstanding Securities of any series, the consent of
whose Holders is required for any such supplemental indenture, or the consent
of whose Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or


 


(c)           modify any of the
provisions of this Section, Section 5.13 or Section 10.5, except to
increase any such percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the Holder
of each Security affected thereby; or


 


(d)           modify the provisions
in Article XIII of this Indenture with respect to the subordination of
Outstanding Securities of any series in a manner adverse to the Holders
thereof;


 


provided, further, that, in
the case of the Securities of a series issued to a SVB Trust, so long as any of
the corresponding series of Preferred Securities issued by such SVB Trust
remains outstanding, (i) no such amendment shall be made that adversely
affects the holders of such Preferred Securities in any material respect, and
no termination of this Indenture shall occur, and no waiver of any Event of
Default or compliance with any covenant under this Indenture shall be effective,
without the prior consent of the holders of at least a majority of the
aggregate Liquidation Amount of such Preferred Securities then outstanding
unless and until the principal (and premium, if any) of the Securities of such
series and all accrued and, subject to Section 3.7, unpaid interest
(including any Additional Interest) thereon have been paid in full and
(ii) no amendment shall be made to Section 5.8 of this Indenture that
would impair the rights of the holders of Preferred Securities provided therein
without the prior consent of the holders of each Preferred Security then
outstanding unless and until the


 


55

















 


principal (and premium, if any) of the Securities of
such series and all accrued and (subject to Section 3.7) unpaid interest
(including any Additional Interest) thereon have been paid in full.


 


A supplemental indenture
that changes or eliminates any covenant or other provision of this Indenture
that has expressly been included solely for the benefit of one or more
particular series of Securities or Preferred Securities, or which modifies the
rights of the Holders of Securities or holders of Preferred Securities of such
series with respect to such covenant or other provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities or holders
of Preferred Securities of any other series.


 


It shall not be necessary
for any Act of Holders under this Section to approve the particular form
of any proposed supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.


 


Section 9.3             Execution
of Supplemental Indentures.


 


In executing or accepting
the additional series of Securities created by any supplemental indenture
permitted by this Article or the modifications thereby of any series of
Securities previously created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 6.1) shall be fully protected in
relying upon, an Officers’ Certificate and an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture, and that all conditions precedent have been complied with.  The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which affects the Trustee’s own
rights, duties or immunities under this Indenture or otherwise.


 


Section 9.4             Effect
of Consents; Effect of  Supplemental
Indentures.


 


Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder’s
Security, even if notation of the consent is not made on any Security.  However, any such Holder or subsequent
Holder may revoke the consent as to its Security or portion of a Security if
the Trustee receives the notice of revocation before the date the amendment,
supplement or waiver becomes effective.


 


Upon the execution of any
supplemental indenture under this Article IX or delivery to the Trustee of
the Officers’ Certificate pursuant to Section 3.1 hereof (which Officers’
Certificate shall have the effect of a supplemental indenture for all purposes
hereunder), this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.


 


56

















 


Section 9.5             Conformity
with Trust Indenture Act.


 


Every supplemental
indenture executed pursuant to this Article IX: and every Officers’
Certificate delivered to the trustee pursuant to Section 3.1 hereof shall
conform to the requirements of the Trust Indenture Act as then in effect.


 


Section 9.6             Reference
in Securities to Supplemental Indentures.


 


Securities authenticated
and delivered after the execution of any supplemental indenture pursuant to
this Article IX or delivery to the Trustee of the Officers’ Certificate
pursuant to Section 3.1 hereof (which Officers’ Certificate shall have the
effect of a supplemental indenture for all purposes hereunder) may, and shall
if required by the Company, bear a notation in form approved by the Company as
to any matter provided for in such supplemental indenture or such Officers’
Certificate.  If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Company, to any such supplemental indenture or such Officers’s
Certificate may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series.


 


ARTICLE X


 


COVENANTS


 


Section 10.1           Payment of Principal, Premium and Interest.


 


The Company covenants and
agrees for the benefit of each series of Securities that it will duly and
punctually pay the principal of (and premium, if any) and interest on the
Securities of that series in accordance with the terms of such Securities and
this Indenture.


 


Section 10.2           Maintenance of Office or Agency.


 


The Company will maintain
in each Place of Payment for any series of Securities, an office or agency
where Securities of that series may be presented or surrendered for payment and
an office or agency where Securities of that series may be surrendered for
transfer or exchange and when notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served.  The Company initially appoints the Trustee,
acting through its Corporate Trust Office, as its agent for said purposes.  The Company will give prompt written notice
to the Trustee of any change in the location of any such office or agency.  If at any time the Company shall fail to
maintain such office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.


 


The Company may also from
time to time designate one or more other offices or agencies where the
Securities may be presented or surrendered for any or all of such purposes, and
may from


 


57

















 


time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in each
Place of Payment for Securities of any series for such purposes.  The Company will give prompt written notice
to the Trustee of any such designation and any change in the location of any
such office or agency.


 


Section 10.3           Money for Security Payments to be Held in Trust.


 


If the Company shall at
any time act as its own Paying Agent with respect to any series of Securities,
it will, on or before each due date of the principal of (and premium, if any)
or interest on any of the Securities of such series, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided, and
will promptly notify the Trustee of its failure so to act.


 


Whenever the Company
shall have one or more Paying Agents, it will, prior to 10:00 a.m. New York
time on each due date of the principal of or interest on any Securities,
deposit with a Paying Agent a sum sufficient to pay the principal (and premium,
if any) or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal and premium (if any) or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its failure so to act.


 


The Company will cause
each Paying Agent other than the Trustee to execute and deliver to the Trustee
an instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section 10.3, that such Paying Agent will:


 


(a)           hold all sums held by
it for the payment of the principal of (and premium, if any) or interest on
Securities in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein provided;


 


(b)           give the Trustee notice
of any default by the Company (or any otter obligor upon the Securities) in the
making of any payment of principal (and premium, if any) or interest:


 


(c)           at any time during the
continuance of any such default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying Agent;
and


 


(d)           comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent.


 


The Company may at any
time, for the purpose of obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by the Company or such


 


58

















 


Paying Agent; and, upon such payment by any Paying Agent
to the Trustee, such Paying Agent shall be released from all further liability
with respect to such money.


 


Any money deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of (and premium, if any) or interest on any Security
and remaining unclaimed for two years after such principal (and premium, if
any) or interest has become due and payable shall (unless otherwise required by
mandatory provision of applicable escheat or abandoned or unclaimed property
law) be paid on Company Request to the Company, or (if then held by the
Company) shall (unless otherwise required by mandatory provision of applicable
escheat or abandoned or unclaimed property law) be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment 
thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the State of California, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication, any unclaimed balance of such
money then remaining will be repaid to the Company.


 


Section 10.4           Statement as to Compliance.


 


The Company shall deliver
to the Trustee, within 120 days after the end of each calendar year of the
Company ending after the date hereof, an Officers’ Certificate covering the
preceding calendar year, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance, observance or
fulfillment of or compliance with any of the terms, provisions, covenants and
conditions of this Indenture, and if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which they
may have knowledge.  For the purpose of
this Section 10.4, compliance shall be determined without regard to any
grace period or requirement of notice provided pursuant to the terms of this
Indenture.


 


Section 10.5           Waiver of Certain Covenants.


 


The Company may omit in
any particular instance to comply with any covenant or condition provided
pursuant to Sections 3.1, 9.1(c), or 9.1(d) with respect to the Securities
of any series, if before or after the time for such compliance the Holders of
at least a majority in principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no
such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company in respect of any such covenant or condition shall
remain in full force and effect.


 


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Section 10.6           Additional Sums.


 


In the case of the
Securities of a series issued to a SVB Trust, so long as no Event of Default
has occurred and is continuing and except as otherwise specified as
contemplated by Section 2.1 or Section 3.1, in the event that
(i) such SVB Trust is the Holder of all of the Outstanding Securities of
such series, (ii) a Tax Event in respect of such SVB Trust shall have
occurred and be continuing and (iii) the Company shall not have
(A) redeemed the Securities of such series pursuant to Section 11.7
or (B) terminated such SVB Trust pursuant to Section 9.2(b) of the
related Trust Agreement, the Company shall pay to such SVB Trust (and its
permitted successors or assigns under the related Trust Agreement) for so long
as such SVB Trust (or its permitted successor or assignee) is the registered
holder of any Securities of such series, such additional amounts as may be
necessary in order that the amount of Distributions (including any Additional
Amounts (as defined in such Trust Agreement)) then due and payable by such SVB
Trust on the related Preferred Securities and Common Securities that at any
time remain outstanding in accordance with the terms thereof shall not be
reduced as a result of any Additional Taxes (the “Additional  Sums”).  Whenever in this Indenture or the Securities
there is a reference in any context to the payment of principal of or interest
on the Securities, such mention shall be deemed to include mention of the
payments of the Additional Sums provided for in this paragraph to the extent
that, in such context.  Additional Sums
are, were or would be payable in respect thereof pursuant to the provisions of
this paragraph and express mention of the payment of Additional Sums (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Sums in those provisions hereof where such express mention is not
made; provided, however, that the deferral of the payment of
interest pursuant to Section 3.11 or the Securities shall not defer the
payment of any Additional Sums that may be due and payable.


 


Section 10.7           Additional Covenants.


 


The Company covenants and
agrees with each Holder of Securities of any series that it shall not, and it
shall not permit any Subsidiary of the Company to, (a) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any shares of the Company’s capital stock
(which includes common and preferred stock), (b) make any payment of
principal of or interest or premium, if any, on or repay, repurchase or redeem
any debt securities of the Company (including Securities other than the
Securities of such series) that rank pari passu in all respects with or junior
in interest to the Securities of such series or (c) make any guarantee
payments with respect to any guarantee by the Company of debt securities of any
Subsidiary of the Company if such guarantee ranks pari passu with or junior in
interest to the Securities (other than, in the case of clauses (a) through (c),
(i) dividends or distributions in capital stock of the Company (which
includes common and preferred stock), (ii) any declaration of a dividend
in connection with the implementation of a rights plan, or the issuance of
stock under any such plan in the future, or the redemption or repurchase of any
such rights pursuant thereto, (iii) payments under the SVB Guarantee
related to the Preferred Securities issued by the SVB Trust holding Securities
of such series, and (iv) purchases of Common Stock related to the issuance
of Common Stock or rights under any of the Company’s benefit plans for its
directors, officers consultants or employees) or (d) redeem, purchase or
acquire less than all of the Securities of such series or any of the Preferred
Securities if at such time (x) there shall have occurred an Event of


 


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Default with respect to the Securities of such series,
(y) if the Securities of such series are held by a SVB Trust, the Company
shall be in default with respect to its payment of any obligations under the
SVB Guarantee relating to the Preferred Securities issued by such SVB Trust, or
(z) the Company shall have given notice of its election to begin an
Extension Period with respect to the Securities of such series as provided
herein and shall not have rescinded such notice, or such Extension Period, or
any extension thereof, shall be continuing.


 


The Company also
covenants with each Holder of Securities of a series issued to a SVB Trust
(A) to maintain, directly or indirectly, 100% ownership of the Common
Securities of such SVB Trust; provided,however, that any permitted successor of the Company
hereunder may succeed to the Company’s ownership of such Common Securities,
(B) not to voluntarily terminate, wind-up or liquidate such SVB Trust,
except upon prior approval of the federal regulators of the Company, if then so
required under applicable guidelines or policies of such regulators, and except
(1) in connection with a distribution of the Securities of such series to
the holders of Trust Securities in liquidation of such SVB Trust or (2) in
connection with certain mergers, consolidations or amalgamations permitted by
the related Trust Agreement, and (C) to use its reasonable efforts,
consistent with the terms and provisions of such Trust Agreement, to cause such
SVB Trust to remain classified as a grantor trust and not an association
taxable as a corporation for United States federal income tax purposes.


 


ARTICLE XI


 


REDEMPTION OF
SECURITIES


 


Section 11.1           Applicability of This Article.


 


Redemption of Securities
of any series (whether by operation of a sinking fund or otherwise) as
permitted or required by any form of Security issued pursuant to this Indenture
shall be made in accordance with such form of Security and this Article; provided,
however, that if any provision of any such form of Security shall
conflict with any provision of this Article, the provision of such form of
Security shall govern.  Except as
otherwise set forth in the form of Security for such series, each Security of
such series shall be subject to partial redemption only in the amount of $25
or, in the case of the Securities of a series issued to a SVB Trust, $25, or
integral multiples of $25 in excess thereof.


 


Section 11.2           Election
to Redeem; Notice to Trustee.


 


The election of the
Company to redeem any Securities shall be evidenced by or pursuant to a Board
Resolution.  In case of any redemption
at the election of the Company of less than all of the Securities of any
particular series and having the same terms, the Company shall, not less than
30 nor more than 60 days prior to the Redemption Date (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such date and of
the principal amount of Securities of that series to be redeemed.  In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities, the Company shall furnish the Trustee with an
Officers’ Certificate and an Opinion of Counsel evidencing compliance with such
restriction.


 


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Section 11.3           Selection
of Securities to be Redeemed.


 


If less than all the
Securities of any series are to be redeemed (unless all the Securities of such
series and of a specified tenor are to be redeemed or unless such redemption
affects only a single Security), the particular Securities to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of a portion of the
principal amount of any Security of such series, provided  that
the portion of the principal amount of any Security not redeemed shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.  If
less than all the Securities of such series and of a specified tenor are to be
redeemed (unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series and specified tenor not previously called for redemption in accordance
with the preceding sentence.


 


The Trustee shall
promptly notify the Company in writing of the Securities selected for partial
redemption and the principal amount thereof to be redeemed.  For all purposes of this Indenture, unless
the context otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security which has
been or is to be redeemed.  If the Company
shall so direct, Securities registered in the name of the Company, any
Affiliate or any Subsidiary thereof shall not be included in the Securities
selected for redemption.


 


Section 11.4           Notice of
Redemption.


 


Notice of redemption
shall be given by first-class mail, postage prepaid, mailed not later than the
30th day, and not earlier than the 60th day, prior to the
Redemption Date, to each Holder of Securities to be redeemed, at the address of
such Holder as it appears in the Securities Register.


 


With respect to
Securities of each series to be redeemed, each notice of redemption shall
state:


 


(a)           the Redemption Date;


 


(b)           the Redemption Price;


 


(c)           if less than all
Outstanding Securities of such particular series and having the same terms are
to be redeemed, the identification (and, in the case of partial redemption, the
respective principal amounts) of the particular Securities to be redeemed;


 


(d)           that on the Redemption
Date, the Redemption Price will become due and payable upon each such Security
or portion thereof, and that interest thereon, if any, shall cease to accrue on
and after said date;


 


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(e)           the place or places
where such Securities are to be surrendered for payment of the Redemption Price;
and


 


(f)            that the redemption is
for a sinking fund, if such is the case.


 


Notice of redemption of
Securities to be redeemed at the election of the Company shall be given by the
Company or, at the Company’s request, by the Trustee in the name and at the expense
of the Company and shall not be irrevocable. 
The notice if mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives such
notice.  In any case, a failure to give
such notice by mail or any defect in the notice to the Holder of any Security
designated for redemption as a whole or in part shall not affect the validity
of the proceedings for the redemption of any other Security.


 


Section 11.5           Deposit
of Redemption Price.


 


Prior to 12:00 noon,
Eastern time on the Redemption Date specified in the notice of redemption given
as provided in Section 11.4, the Company will deposit with the Trustee or
with one or more Paying Agents (or if the Company is acting as its own Paying
Agent, the Company will segregate and hold in trust as provided in
Section 10.3) an amount of money sufficient to pay the Redemption Price
of, and any accrued interest (including Additional Interest) on, all the
Securities which are to be redeemed on that date.


 


Section 11.6           Payment
of Securities Called for Redemption.


 


If any notice of
redemption has been given as provided in Section 11.4, the Securities or
portion of Securities with respect to which such notice has been given shall
become due and payable on the date and at the place or places stated in such
notice at the applicable Redemption Price. 
On presentation and surrender of such Securities at a Place of Payment
in said notice specified, the said securities or the specified portions thereof
shall be paid and redeemed by the Company at the applicable Redemption Price,
together with accrued interest (including any Additional Interest) to the
Redemption Date; provided, however, that, unless otherwise
specified as contemplated by Section 3.1, installments of interest whose
Stated Maturity is on or prior to the Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered
as such at the close of business on the relevant Record Dates according to
their terms and the provisions of Section 3.7.


 


Upon presentation of any
Security redeemed in part only, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder thereof, at the expense of the Company,
a new Security or Securities of the same series, of authorized denominations,
in aggregate principal amount equal to the portion of the Security not redeemed
so presented and having the same Original Issue Date, Stated Maturity and
terms.  If a Global Security is so
surrendered, such new Security will also be a new Global Security.


 


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If any Security called
for redemption shall not be so paid upon surrender thereof for redemption, the
principal of and premium, if any, on such Security shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.


 


Section 11.7           Right of
Redemption of Securities Initially Issued to a SVB Trust.


 


In the case of the
Securities of a series initially issued to a SVB Trust, except as otherwise
specified as contemplated by Section 3.1, the Company, at its option, may
redeem such Securities (i) on or after the date five years after the
Original Issue Date of such Securities, in whole at any time or in part from
time to time, or (ii) upon the occurrence and during the continuation of a
Tax Event, Investment Company Event, or Capital Treatment Event, at any time
within 90 days following the occurrence of such Tax Event, Investment Company
Event or Capital Treatment Event in respect of such SVB Trust, in whole (but
not in part), in each case at a Redemption Price equal to 100% of the principal
amount thereof.


 


ARTICLE XII


 


SINKING FUNDS


 


Section 12.1           Applicability
of Article.


 


The provisions of this
Article shall be applicable to any sinking fund for the retirement of
Securities of any series except as otherwise specified as contemplated by
Section 3.1 for such Securities.


 


The minimum amount of any
sinking fund payment provided for by the terms of any Securities of any series
is herein referred to as a “mandatory sinking fund payment”, and any sinking
fund payment in excess of such minimum amount which is permitted to be made by
the terms of such Securities of any series is herein referred to as an
“optional sinking fund payment”.  If provided
for by the terms of any Securities of any series, the cash amount of any
sinking fund payment may be subject to reduction as provided in
Section 12.2.  Each sinking fund
payment shall be applied to the redemption of Securities of any series as
provided for by the terms of such Securities.


 


Section 12.2           Satisfaction
of Sinking Fund Payments with Securities.


 


In lieu of making all or
any part of a mandatory sinking fund payment with respect to any Securities of
a series in cash, the Company may at its option, at any time no more than 16
months and no less than 30 days prior to the date on which such sinking fund
payment is due, deliver to the Trustee Securities of such series (together with
the unmatured coupons, if any, appertaining thereto) theretofore purchased or
otherwise acquired by the Company, except Securities of such series that have
been redeemed through the application of mandatory or optional sinking fund
payments pursuant to the terms of the Securities of such series, accompanied by
a Company Order instructing the Trustee to credit such obligations and stating
that the Securities of such series were originally issued by the Company by way
of bona fide sale or other negotiation for value; provided  that
the


 


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Securities to be so credited have not been previously
so credited.  The Securities to be so
credited shall be received and credited for such purpose by the Trustee at the
redemption price for such Securities, as specified in the Securities so to be
redeemed, for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly.


 


Section 12.3           Redemption
of Securities for Sinking Fund.


 


Not less than 60 days
prior to each sinking fund payment date for any series of Securities, the
Company will deliver to the Trustee an Officers’ Certificate specifying the
amount of the next ensuing sinking fund payment for such Securities pursuant to
the terms of such Securities, the portion thereof, if any, which is to be
satisfied by payment of cash in the currency in which the Securities of such
series are payable (except as provided pursuant to Section 3.1) and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities pursuant to Section 12.2 and will also deliver to the Trustee
any Securities to be so delivered.  Such
Officers’ Certificate shall be irrevocable and upon its delivery the Company
shall be obligated to make the cash payment or payments therein referred to, if
any, on or before the succeeding sinking fund payment date.  In the case of the failure of the Company to
deliver such Officers’ Certificate (or, as required by this Indenture, the
Securities and coupons, if any, specified in such Officers’ Certificate), the
sinking fund payment due on the succeeding sinking fund payment date for such
series shall be paid entirely in cash and shall be sufficient to redeem the
principal amount of the Securities of such series subject to a mandatory
sinking fund payment without the right to deliver or credit securities as
provided in Section 12.2 and without the right to make the optional
sinking fund payment with respect to such series at such time.


 


Any sinking fund payment
or payments (mandatory or optional) made in cash plus any unused balance of any
preceding sinking fund payments made with respect to the Securities of any
particular series shall be applied by the Trustee (or by the Company if the
Company is acting as its own Paying Agent) on the sinking fund payment date on
which such payment is made (or, if such payment is made before a sinking fund
payment date, on the sinking fund payment date immediately following the date
of such payment) to the redemption of Securities of such series at the
Redemption Price specified in such Securities with respect to the sinking
fund.  Any sinking fund moneys not so
applied or allocated by the Trustee (or, if the Company is acting as its own
Paying, Agent, segregated and held in trust by the Company as provided in
Section 10.3) for such series and together with such payment (or such
amount so segregated) shall be applied in accordance with the provisions of
this Section 12.3.  Any and all
sinking fund moneys with respect to the Securities of any particular series
held by the Trustee (or if the Company is acting as its own Paying Agent,
segregated and held in trust as provided in Section 10.3) on the last
sinking fund payment date with respect to Securities of such series and not
held for the payment or redemption of particular Securities of such series
shall be applied by the Trustee (or by the Company if the Company is acting as
its own Paying Agent), together with other moneys, if necessary, to be
deposited (or segregated) sufficient for the purpose, to the payment of the
principal of the Securities of such series at Maturity.  The Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the manner specified in
Section 11.3 and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in
Section 11.4.  Such notice having


 


65

















 


been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Section 11.6.  On or before each sinking fund payment date,
the Company shall pay to the Trustee (or, if the Company is acting as its own
Paying Agent, the Company shall segregate and hold in trust as provided in Section 10.3)
in cash a sum in the currency in which Securities of such series are “ payable
(except as provided pursuant to Section 3.1) equal to the principal and
any interest accrued to the Redemption Date for Securities or portions thereof
to be redeemed on such sinking fund payment date pursuant to this
Section 12.3.


 


Neither the Trustee nor
the Company shall redeem any Securities of a series with sinking fund moneys or
mail any notice of redemption of Securities of such series by operation of the
sinking fund for such series during the continuance of a default in payment of
interest, if any, on any Securities of such series or of any Event of Default
(other than an Event of Default occurring as a consequence of this paragraph)
with respect to the Securities of such series, except that if the notice of
redemption shall have been provided in accordance with the provisions hereof,
the Trustee (or the Company, if the Company is then acting as its own Paying
Agent) shall redeem such Securities if cash sufficient for that purpose shall
be deposited with the Trustee (or segregated by the Company) for that purpose
in accordance with the terms of this Article XII.  Except as aforesaid, any moneys in the
sinking fund for such series at the time when any such default or Event of
Default shall occur and any moneys thereafter paid into such sinking fund
shall, during the continuance of such default or Event of Default, be held as
security for the payment of the Securities and coupons, if any, of such series;
provided, however, that in case such default or Event of Default shall have
been cured or waived herein, such moneys shall thereafter be applied on the
next sinking fund payment date for the Securities of such series on which such
moneys may be applied pursuant to the provisions of this Section 12.3.


 


ARTICLE XIII


 


SUBORDINATION OF
SECURITIES


 


Section 13.1           Securities
Subordinate to Senior Debt.


 


The Company covenants and
agrees, and each Holder of a Security, by its acceptance thereof, likewise
covenants and agrees, that, to the extent and in the manner hereinafter set
forth in this Article XIII, the payment of the principal of (and premium,
if any) and interest (including any Additional Interest) on each and all of the
Securities are hereby expressly made subordinate and subject in right of
payment to the prior payment in full of all amounts then due and payable in
respect of all Senior Debt.


 


Section 13.2         Payment Over of Proceeds
Upon Dissolution, Etc.


 


In the event of any
liquidation, dissolution, winding up, receivership, insolvency, bankruptcy,
reorganization, arrangement, adjustment, composition, assignment for the
benefit of creditors, marshaling of assets, or other similar proceedings
relative to the Company (each such event, if any, herein sometimes referred to
as a “Proceeding”),
or upon any payment by the Company or any 


 


66

















 


distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to creditors upon any such
Proceeding, then the holders of Senior Debt shall be entitled to receive
payment in full in cash of Allocable Amounts of such Senior Debt, or provision
shall be made for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Debt, before the Holders of the Securities
are entitled to receive or retain any payment or distribution of any kind or
character, whether in cash, property or securities (including any payment or
distribution which may be payable or deliverable by reason of the payment of
any other Debt of the Company subordinated to the payment of the Securities,
such payment or distribution being hereinafter referred to as a “Junior  Subordinated  Payment”), on account
of principal of (or premium, if any) or interest (including any Additional
Interest) on the Securities or on account of the purchase or other acquisition
of Securities by the Company or any Subsidiary and to that end the holders of
Senior Debt shall be entitled to receive, for application to the payment
thereof, any payment or distribution of any kind or character, whether in cash,
property or securities, including any Junior Subordinated Payment, which may be
payable or deliverable in respect of the Securities in any such Proceeding.


 


In the event that,
notwithstanding the foregoing provisions of this Section 13.2, the Trustee
or the Holder of any Security shall have received any payment or distribution
of assets of the Company of any kind or character, whether in cash, property or
securities, including any Junior Subordinated Payment, before all Allocable
Amounts of all Senior Debt are paid in full or payment thereof is provided for
in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt, then and in such event such payment or distribution
shall be paid over or delivered forthwith to the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee, agent or other Person
making payment or distribution of assets of the Company for application to the
payment of all Allocable Amounts of all Senior Debt remaining unpaid, to the
extent necessary to pay all Allocable Amounts of all Senior Debt in full, after
giving effect to any concurrent payment or distribution to or for the holders
of Senior Debt.


 


For purposes of this
Article XIII only, the words “any payment or distribution of any kind or
character, whether in cash, property or securities” shall not be deemed to
include shares of stock of the Company as reorganized or readjusted, or
securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment which securities are subordinated in right of
payment to all then outstanding Senior Debt to at least the same extent as the
Securities are so subordinated as provided in this Article XIII; provided,
that, (a) the Senior Debt is assumed by the new corporation, if any,
resulting from any reorganization or readjustment and (b) the rights of the
holders of Senior Debt are not, without the consent of such holders, altered by
such reorganization or readjustment. 
The consolidation of the Company with, or the merger of the Company
into, another Person or the liquidation or dissolution of the Company following
the conveyance, transfer or lease of all or substantially all of its properties
and assets as an entirety to another Person upon the terms and conditions set
forth in Article VIII shall not be deemed a Proceeding for the purposes of
this Section 13.2 if the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by sale such properties and
assets as an entirety, as the case may be, shall, as a part of such
consolidation, merger, conveyance, transfer or lease comply with the conditions
set forth in Article VIII.


 


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Section 13.3           Prior
Payment to Senior Debt Upon Acceleration of Securities.


 


In the event that any
Securities are declared due and payable before their Stated Maturity, then and
in such event the holders of the Senior Debt outstanding at the time such
Securities so become due and payable shall be entitled to receive payment in
full of all Allocable Amounts due on or in respect of such Senior Debt
(including any amounts due upon acceleration), or provision shall be made for
such payment in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior Debt, before the Holders of the Securities are
entitled to receive any payment or distribution of any kind or character,
whether in cash, properties or securities (including any Junior Subordinated
Payment) by the Company on account of the principal of (or premium, if any) or
interest (including any Additional Interest) on the Securities or on account of
the purchase or other acquisition of Securities by the Company or any
Subsidiary; provided  however,
that nothing in this Section 13.3 shall prevent the satisfaction of any
sinking fund payment in accordance with this Indenture or as otherwise
specified as contemplated by Section 3.1 for the Securities of any series
by delivering and crediting pursuant to Section 12.2 or as otherwise
specified as contemplated by Section 3.1 for the Securities of any series
Securities which have been acquired (upon redemption or otherwise) prior to
such declaration of acceleration.


 


In the event that,
notwithstanding the foregoing, the Company shall make any payment to the
Trustee or the Holder of any Security prohibited by the foregoing provisions of
this Section 13.3, then and in such event such payment shall be paid over
and delivered forthwith to the Company.


 


The provisions of this
Section 13.3 shall not apply to any payment with respect to which
Section 13.2 would be applicable.


 


Section 13.4           No
Payment When Senior Debt in Default.


 


(a)           In the event and during
the continuation of any default (beyond any applicable grace period specified
in the instrument evidencing such Senior Debt) in the payment of principal of,
(or premium, if any) or interest on any Senior Debt, or (b) in the event that
any event of default with respect to any Senior Debt shall have occurred and be
continuing that permits the holders of such Senior Debt to cause such Senior
Debt to be declared or become due and payable prior to the date on which it
would otherwise have become due and payable and the Trustee receives a notice
of the default from a Representative or holder of such Senior Debt or the
Company, in the case of (a) and (b), unless and until such event of default
shall have been cured or waived or shall have ceased to exist and such
acceleration shall have been rescinded or annulled, then no payment or
distribution of any kind or character, whether in cash, properties or
securities (including any Junior Subordinated Payment) shall be made by the
Company on account of principal of (or premium, if any) or interest (including
any Additional Interest), if any, on the Securities or on account of the
purchase or other acquisition of Securities by the Company or any Subsidiary,
in each case unless and until all Allocable Amounts of such Senior Debt are
paid in full; provided, however, that nothing in this
Section 13.4 shall prevent the satisfaction of any sinking fund payment in
accordance with this Indenture or as otherwise specified as contemplated by
Section 3.1 for the Securities of any series by delivering and crediting
pursuant to Section 12.2 or as otherwise specified as contemplated by 


 


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Section 3.1
for the Securities of any series Securities which have been acquired (upon
redemption or otherwise) prior to such default in payment or event of default.


 


In the event that,
notwithstanding the foregoing, the Company shall make any payment to the
Trustee or the Holder of any Security prohibited by the foregoing provisions of
this Section 13.4, then and in such event such payment shall be paid over
and delivered forthwith to the Company.


 


The provisions of this
Section 13.4 shall not apply to any payment with respect to which
Section 13.2 would be applicable.


 


Section 13.5           Payment
Permitted If No Default.


 


Nothing contained in this
Article XIII or elsewhere in this Indenture or in any of the Securities
shall prevent (a) the Company, at any time except during the pendency of
any Proceeding referred to in Section 13.2 or under the conditions
described in Sections 13.3 and 13.4, from making payments at any time of
principal of (and premium, if any) or interest (including Additional Interest)
on the Securities, or (b) the application by the Trustee of any money
deposited with it hereunder to the payment of or on account of the principal of
(and premium, if any) or interest (including any Additional Interest) on the
Securities or the retention of such payment by the Holders, if, at the time of
such application by the Trustee, it did not have knowledge that such payment
would have been prohibited by the provisions of this Article XIII.


 


Section 13.6           Subrogation
to Rights of Holders of Senior Debt.


 


Subject to the
payment in full of all amounts due or to become due on all Senior Debt, or the
provision for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, the Holders of the Securities shall
be subrogated to the extent of the payments or distributions made to the
holders of such Senior Debt pursuant to the provisions of this
Article XIII (equally and ratably with the holders of all indebtedness of
the Company which by its express terms is subordinated to Senior Debt of the
Company to substantially the same extent as the Securities are subordinated to
the Senior Debt and is entitled to like rights of subrogation by reason of any
payments or distributions made to holders of such Senior Debt) to the rights of
the holders of such Senior Debt to receive payments and distributions of cash,
property and securities applicable to the Senior Debt until the principal of
(and premium, if any) and interest on the Securities shall be paid in
full.  For purposes of such subrogation,
no payments or distributions to the holders of the Senior Debt of any cash,
property or securities to which the Holders of the Securities or the Trustee
would be entitled except for the provisions of this Article, and no payments
pursuant to the provisions of this Article XIII to the holders of Senior
Debt by Holders of the Securities or the Trustee shall, as among the Company,
its creditors other than holders of Senior Debt, and the Holders of the
Securities, be deemed to be a payment or distribution by the Company to or on
account of the Senior Debt.


 


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Section 13.7           Provisions
Solely to Define Relative Rights.


 


The provisions of this
Article XIII are and are intended solely for the purpose of defining the
relative rights of the Holders of the Securities on the one hand and the
holders of Senior Debt on the other hand. 
Nothing contained in this Article XIII or elsewhere in this
Indenture or in the Securities is intended to or shall (a) impair, as
between the Company and the Holders of the Securities, the obligations of the
Company, which are absolute and unconditional, to pay to the Holders of the
Securities the principal of (and premium, if any) and interest (including any
Additional Interest) on the Securities as and when the same shall become due
and payable in accordance with their terns; or (b) affect the relative
rights against the Company of the Holders of the Securities and creditors of
the Company other than their rights in relation to the holders of Senior Debt;
or (c) prevent the Trustee or the Holder of any Security from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture including, without limitation, filing and voting claims in any
Proceeding, subject to the rights, if any, under this Article XIII of the
holders of Senior Debt to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.


 


Section 13.8           Trustee
to Effectuate Subordination.


 


Each Holder of a Security
by his or her acceptance thereof authorizes and directs the Trustee on his or
her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination provided in this Article XIII
and appoints the Trustee his or her attorney-in-fact for any and all such
purposes.


 


Section 13.9           No Waiver
of Subordination Provisions.


 


No right of any present
or future holder of any Senior Debt to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company or by any act or failure to act, in good faith,
by any such holder, or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
that any such holder may have or be otherwise charged with.


 


Without in any way
limiting the generality of the immediately preceding paragraph, the holders of
Senior Debt may, at any time and from to time, without the consent of or notice
to the Trustee or the Holders of the Securities, without incurring
responsibility to the Holders of the Securities and without impairing or releasing
the subordination provided in this Article or the obligations hereunder of
the Holders of the Securities to the holders of Senior Debt, do any one or more
of the following: (a) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior Debt, or otherwise
amend or supplement in any manner Senior Debt or any instrument evidencing the
same or any agreement under which Senior Debt is outstanding; (b) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Debt; (c) release any Person liable in any
manner for the collection of Senior Debt; and (d) exercise or refrain from
exercising any rights against the Company and any other Person.


 


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Section 13.10         Notice to
Trustee.


 


The Company shall give
prompt written notice to the Trustee of any fact known to the Company which
would prohibit the making of any payment to or by the Trustee in respect of the
Securities.  Notwithstanding the
provisions of this Article XIII or any other provision of this Indenture,
the Trustee shall not be charged with knowledge of the existence of any facts
which would prohibit the making of any payment to or by the Trustee in respect
of the Securities, unless and until the Trustee shall have received written
notice thereof from the Company or a holder of Senior Debt or from any trustee,
agent or representative therefor, provided, however, that if the
Trustee shall not have received the notice provided for in this
Section 13.10 at least two Business Days prior to the date upon which by
the terms hereof any monies may become payable for any purpose (including,
without limitation, the payment of the principal of (and premium, if any) or
interest (including any Additional Interest) on any Security), then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such monies and to apply the same to the purpose
for which they were received and shall not be affected by any notice to the
contrary which may be received by it within two Business Days prior to such
date.


 


Subject to the provisions
of Section 6.1, the Trustee shall be entitled to rely on the delivery to
it of a written notice by a Person representing himself to be a holder of
Senior Debt (or a trustee therefor) to establish that such notice has been
given by a holder of Senior Debt (or a trustee therefor).  In the event that the Trustee determines in
good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Debt to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Debt held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to
the rights of such Person under this Article, and if such evidence is not furnished,
the Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.


 


Section 13.11         Reliance on
Judicial Order or Certificate of Liquidating Agent.


 


Upon any payment or
distribution of assets of the Company referred to in this Article XIII,
the Trustee, subject to the provisions of Section 6.1, and the Holders of
the Securities shall be entitled to rely upon any order or decree entered by
any court of competent jurisdiction in which such Proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of the Senior Debt and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article XIII.


 


Section 13.12         Trustee Not
Fiduciary for Holders of Senior Debt.


 


The Trustee, in its
capacity as trustee under this Indenture, shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt and shall not be liable to any
such holders if it shall in


 


71

















 


good faith mistakenly pay over or distribute to
Holders of Securities or to the Company or to any other Person cash, property
or securities to which any holders of Senior Debt shall be entitled by virtue
of this Article or otherwise.


 


Section 13.13         Rights of
Trustee as Holder of Senior Debt; Preservation of Trustee’s Rights.


 


The Trustee in its
individual capacity shall be entitled to all the rights set forth in this
Article XIII with respect to any Senior Debt which may at any time be held
by it, to the same extent as any other holder of Senior Debt, and nothing in
this Indenture shall deprive the Trustee of any of its rights as such holder.


 


Section 13.14         Article Applicable
to Paying Agents.


 


In case at any time any
Paying Agent other than the Trustee shall have been appointed by the Company
and be then acting hereunder, the term “Trustee” as used in this
Article XIII shall in such case (unless the context otherwise requires) be
construed as extending to and including such Paying Agent within its meaning as
fully for all intents and purposes as if such Paying Agent were named in this
Article XIII in addition to or in place of the Trustee.


 


Section 13.15         Certain
Conversions or Exchanges Deemed Payment.


 


For the purposes of this
Article XIII only, (a) the issuance and delivery of junior securities
upon conversion or exchange of Securities shall not be deemed to constitute a
payment or distribution on account of the principal of (or premium, if any) or
interest (including any Additional Interest) on Securities or on account of the
purchase or other acquisition of Securities, and (b) the payment, issuance
or delivery of cash, property or securities (other than junior securities) upon
conversion or exchange of a Security shall be deemed to constitute payment on
account of the principal of such security. 
For the purposes of this Section 13.15, the term “junior
securities” means (i) shares of any stock of any class of the Company and
(ii) securities of the Company which are subordinated in right of payment
to all Senior Debt which may be outstanding at the time of issuance or delivery
of such securities to substantially the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in this Article XIII.


 


* * * *


 


This instrument may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.


 


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IN WITNESS WHEREOF, the
parties hereto have caused this Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and attested, all as of the
day and year fast above written.


 


	
   

  	
  SILICON VALLEY
  BANCSHARES

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kenneth P. Wilcox

  	
   

  
	
   

  	
  Name:

  	
  Kenneth P. Wilcox

  
	
   

  	
  Title:

  	
  President and Chief
  Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Attest:

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Derek Witte

  	
   

  	
   

  
	
  Name:

  	
  Derek Witte

  	
   

  
	
  Its:

  	
  General Counsel and
  Secretary

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WILMINGTON TRUST
  COMPANY,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Denise M. Geran

  	
   

  
	
   

  	
  Its:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
  Attest:

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ William T. Morris

  	
   

  	
   

  
	
  Its:

  	
  Senior Financial
  Services Officer