Exhibit
4.17


 


AGREEMENT AS TO EXPENSES AND LIABILITIES


 


THIS
AGREEMENT AS TO EXPENSES AND LIABILITIES (this “Agreement”) dated as of October 30,
2003, between Silicon Valley Bancshares, a Delaware corporation (the “Company”) and SVB
Capital II, a Delaware statutory trust (the “Trust”).


 


WHEREAS,
the Trust intends to issue its Common Securities (the “Common Securities”)
to, and receive Junior Subordinated Deferrable Interest Debentures (the
“Debentures”) from, the Company and to issue and sell 7% Cumulative Trust
Preferred Securities (the “Trust
Preferred Securities”) with such powers, preferences and special
rights and restrictions as are set forth in the Amended and Restated Trust
Agreement of the Trust dated as of October 30, 2003 (as the same may be
amended, restated, modified or otherwise supplemented from time to time the “Trust Agreement”);


 


WHEREAS,
the Company will directly or indirectly own all of the Common Securities of the
Trust and will issue the Debentures;


 


NOW,
THEREFORE, in consideration of the purchase by each holder of the Trust
Preferred Securities, which purchase the Company hereby agrees shall benefit
the Company and which purchase the Company acknowledges will be made in
reliance upon the execution and delivery of this Agreement, the Company and the
Trust hereby agree as follows:


 


ARTICLE I


 


Section 1.1             Guarantee by the
Company.


 


Subject
to the terms and conditions hereof, the Company hereby irrevocably and
unconditionally guarantees to each person or entity to whom the Trust is now or
hereafter becomes indebted or liable (the “Beneficiaries”) the full payment, when and as
due, of any and all Obligations (as hereinafter defined) to such
Beneficiaries.  As used herein, “Obligations” means
any costs, expenses or liabilities of the Trust, other than obligations of the
Trust to pay to holders of any Trust Preferred Securities or other similar
interests in the Trust the amounts due such holders pursuant to the terms of
the Trust Preferred Securities or such other similar interests, as the case maybe.  This Agreement is intended to be for the
benefit of, and to be enforceable by, all such Beneficiaries, whether or not
such Beneficiaries have received notice hereof.


 


Section 1.2             Term of Agreement.


 


This
Agreement shall terminate and be of no further force and effect on the date on
which full payment has been made of all amounts payable to all holders of all
the Trust Preferred Securities (whether upon redemption, liquidation, exchange
or otherwise); provided, however,
that this Agreement shall continue to be effective or shall be reinstated, as
the case may be, if at any time any holder of Trust Preferred Securities or any
Beneficiary must restore payment of any sums paid under


 

















 


the Trust Preferred Securities, under any Obligation,
under the Guarantee Agreement dated the date hereof by the Company and
Wilmington Trust Company, as guarantee trustee, or under this Agreement for any
reason whatsoever.  This Agreement is
continuing, irrevocable, unconditional and absolute and the Company fully,
knowingly and unconditionally waives any right to revoke the guarantee under
Section 2815 of the California Civil Code or otherwise.


 


Section 1.3             Waiver of Notice.


 


The
Company hereby waives notice of acceptance of this Agreement and of any
Obligation to which it applies or may apply, and the Company hereby waives
presentment, demand for payment, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.


 


Section 1.4             No Impairment.


 


The
obligations, covenants, agreements and duties of the Company under this
Agreement shall in no way be affected or impaired by reason of the happening
from time to time of any of the following:


 


(a)           the extension of time
for the payment by the Trust of all or any portion of the Obligations or for
the performance of any other obligation under, arising out of, or in connection
with, the Obligations;


 


(b)           any failure, omission,
delay or lack of diligence on the part of the Beneficiaries to enforce, assert
or exercise any right, privilege, power or remedy conferred on the
Beneficiaries with respect to the Obligations or any action on the part of any
Beneficiary granting indulgence or extension of any kind; or


 


(c)           the voluntary or
involuntary liquidation, dissolution, sale of any collateral, receivership,
insolvency, bankruptcy assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other similar
proceedings affecting, the Trust or any of the assets of the Trust. 


 


There shall be no obligation of the Beneficiaries to
give notice to, or obtain the consent of, the Company with respect to the
happening of any of the foregoing.


 


Section 1.5             Enforcement.


 


A
Beneficiary may enforce this Agreement directly against the Company and the
Company waives any right or remedy to require that any action be brought
against the Trust or any other person or entity before proceeding against the
Company.


 


Section 1.6             Subrogation.


 


The
Company shall be subrogated to all (if any) rights of the Trust in respect of
any amounts paid to the Beneficiaries by the Company under this Agreement; provided,
however, that the Company
shall not (except to the extent required by mandatory provisions of law) be
entitled to


 


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enforce or exercise any rights which it may acquire by
way of subrogation or any indemnity, reimbursement or other agreement, in all
cases as a result of payment under this Agreement, if, at the time of any such
payment, any amounts are due and, unpaid under this Agreement.


 


ARTICLE II


 


Section 2.1             Binding Effect.


 


All
guarantees and agreements contained in this Agreement shall bind the
successors, assigns, receivers, trustees and representatives of the Company and
shall inure to the benefit of the Beneficiaries.


 


Section 2.2             Amendment.


 


So
long as there remains any Beneficiary or any Trust Preferred Securities are
outstanding, this Agreement shall not be modified or amended in any manner
adverse to such Beneficiary or to the holders of the Trust Preferred Securities.


 


Section 2.3             Notices.


 


Any
notice, request or other communication required or permitted to be given
hereunder shall be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), telex or by registered
or certified mail, addressed as follows (and if so given, shall be deemed given
when mailed or upon receipt of an answer-back, if sent by telex):


 


SVB Capital II:


c/o Silicon Valley Bancshares


3003 Tasman Drive


Santa Clara, California 95054


Facsimile No.: (408) 496-2405


Attention:  
Chief Financial Officer


 


Silicon Valley Bancshares:


3003 Tasman Drive


Santa Clara, California 95054


Facsimile No.: (408) 496-2405


Attention: Chief Financial Officer


 


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Section 2.4             Choice of Law.


 


THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA (WITHOUT
REGARD TO CONFLICT OF LAW PRINCIPLES).


 


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THIS AGREEMENT
is executed as of the day and year first above written.


 


	
   

  	
  SILICON
  VALLEY BANCSHARES

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kenneth P. Wilcox

  	
   

  
	
   

  	
   

  	
  Name:   Kenneth
  P. Wilcox

  
	
   

  	
   

  	
  Title:     President
  and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SVB
  CAPITAL II

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paulette Mehas

  	
   

  
	
   

  	
   

  	
  Name:   Paulette
  Mehas

  
	
   

  	
   

  	
  Title:    Administrative
  Trustee

  
					



 


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