EXHIBIT 4.1


 




SILICON VALLEY
BANCSHARES





to


WILMINGTON TRUST COMPANY


 


Trustee


 












JUNIOR SUBORDINATED
INDENTURE


Dated as of __________, 2003


____________________________________________________________________


 


 

















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
   

  	
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  ARTICLE
  I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

  	
   

  	
  1

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 1.1

  	
   

  	
  Definitions

  	
   

  	
  1

  	
   

  
	
   

  	
  Section 1.2

  	
   

  	
  Compliance
  Certificate and Opinions

  	
   

  	
  9

  	
   

  
	
   

  	
  Section 1.3

  	
   

  	
  Forms
  of Documents Delivered to Trustee

  	
   

  	
  10

  	
   

  
	
   

  	
  Section 1.4

  	
   

  	
  Acts of Holders

  	
   

  	
  10

  	
   

  
	
   

  	
  Section 1.5

  	
   

  	
  Notices,
  Etc to Trustee and Company

  	
   

  	
  13

  	
   

  
	
   

  	
  Section 1.6

  	
   

  	
  Notice to
  Holders; Waiver

  	
   

  	
  13

  	
   

  
	
   

  	
  Section 1.7

  	
   

  	
  Conflict
  with Trust Indenture Act

  	
   

  	
  13

  	
   

  
	
   

  	
  Section 1.8

  	
   

  	
  Effect
  of Headings and Table of Contents

  	
   

  	
  13

  	
   

  
	
   

  	
  Section 1.9

  	
   

  	
  Successors and
  Assigns

  	
   

  	
  13

  	
   

  
	
   

  	
  Section 1.10

  	
   

  	
  Separability Clause

  	
   

  	
  14

  	
   

  
	
   

  	
  Section 1.11

  	
   

  	
  Benefits of
  Indenture

  	
   

  	
  14

  	
   

  
	
   

  	
  Section 1.12

  	
   

  	
  Governing Law

  	
   

  	
  14

  	
   

  
	
   

  	
  Section 1.13

  	
   

  	
  Non-Business Days

  	
   

  	
  14

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II SECURITY FORMS

  	
   

  	
  14

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.1

  	
   

  	
  Forms Generally

  	
   

  	
  14

  	
   

  
	
   

  	
  Section 2.2

  	
   

  	
  Form of Face of
  Security

  	
   

  	
  15

  	
   

  
	
   

  	
  Section 2.3

  	
   

  	
  Form of
  Reverse of Security

  	
   

  	
  18

  	
   

  
	
   

  	
  Section 2.4

  	
   

  	
  Additional
  Provisions Required in Global Security

  	
   

  	
  21

  	
   

  
	
   

  	
  Section 2.5

  	
   

  	
  Form
  of Trustee’s Certificate of Authentication

  	
   

  	
  21

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III THE SECURITIES

  	
   

  	
  21

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.1

  	
   

  	
  Title and Terms

  	
   

  	
  21

  	
   

  
	
   

  	
  Section 3.2

  	
   

  	
  Denominations

  	
   

  	
  24

  	
   

  
	
   

  	
  Section 3.3

  	
   

  	
  Execution,
  Authentication, Delivery and Dating

  	
   

  	
  24

  	
   

  
	
   

  	
  Section 3.4

  	
   

  	
  Temporary Securities

  	
   

  	
  25

  	
   

  
	
   

  	
  Section 3.5

  	
   

  	
  Registration,
  Transfer and Exchange

  	
   

  	
  26

  	
   

  
	
   

  	
  Section 3.6

  	
   

  	
  Mutilated,
  Destroyed Lost and Stolen Securities

  	
   

  	
  28

  	
   

  
	
   

  	
  Section 3.7

  	
   

  	
  Payment
  of Interest: Interest Rights Preserved

  	
   

  	
  28

  	
   

  
	
   

  	
  Section 3.8

  	
   

  	
  Persons Deemed
  Owners

  	
   

  	
  30

  	
   

  
	
   

  	
  Section 3.9

  	
   

  	
  Cancellation

  	
   

  	
  30

  	
   

  
	
   

  	
  Section 3.10

  	
   

  	
  Computation of
  Interest

  	
   

  	
  30

  	
   

  
	
   

  	
  Section 3.11

  	
   

  	
  Deferrals
  of Interest Payment Dates

  	
   

  	
  30

  	
   

  
	
   

  	
  Section 3.12

  	
   

  	
  Right of Set-Off

  	
   

  	
  31

  	
   

  
	
   

  	
  Section 3.13

  	
   

  	
  Agreed Tax Treatment

  	
   

  	
  32

  	
   

  
	
   

  	
  Section 3.14

  	
   

  	
  Shortening
  of Stated Maturity

  	
   

  	
  32

  	
   

  
	
   

  	
  Section 3.15

  	
   

  	
  CUSIP Numbers

  	
   

  	
  32

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
													



 

















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  ARTICLE IV
  SATISFACTION AND DISCHARGE

  	
   

  	
  32

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.1

  	
   

  	
  Satisfaction
  and Discharge of Indenture

  	
   

  	
  32

  	
   

  
	
   

  	
  Section 4.2

  	
   

  	
  Application of
  Trust Money

  	
   

  	
  33

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V DEFAULT AND
  REMEDIES

  	
   

  	
  34

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 5.1

  	
   

  	
  Events of Default

  	
   

  	
  34

  	
   

  
	
   

  	
  Section 5.2

  	
   

  	
  Acceleration
  of Maturity; Rescission and Annulment

  	
   

  	
  35

  	
   

  
	
   

  	
  Section 5.3

  	
   

  	
  Collection
  of Indebtedness and Suits for Enforcement by Trustee

  	
   

  	
  36

  	
   

  
	
   

  	
  Section 5.4

  	
   

  	
  Trustee
  May File Proofs of Claim

  	
   

  	
  37

  	
   

  
	
   

  	
  Section 5.5

  	
   

  	
  Trustee
  May Enforce Claim Without Possession of Securities

  	
   

  	
  37

  	
   

  
	
   

  	
  Section 5.6

  	
   

  	
  Application
  of Money Collected

  	
   

  	
  38

  	
   

  
	
   

  	
  Section 5.7

  	
   

  	
  Limitation on Suits

  	
   

  	
  38

  	
   

  
	
   

  	
  Section 5.8

  	
   

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

  	
   

  	
  39

  	
   

  
	
   

  	
  Section 5.9

  	
   

  	
  Restoration
  of Rights and Remedies

  	
   

  	
  39

  	
   

  
	
   

  	
  Section 5.10

  	
   

  	
  Rights and
  Remedies Cumulative

  	
   

  	
  39

  	
   

  
	
   

  	
  Section 5.11

  	
   

  	
  Delay or
  Omission Not Waiver

  	
   

  	
  40

  	
   

  
	
   

  	
  Section 5.12

  	
   

  	
  Control by Holders

  	
   

  	
  40

  	
   

  
	
   

  	
  Section 5.13

  	
   

  	
  Waiver of Past
  Defaults

  	
   

  	
  40

  	
   

  
	
   

  	
  Section 5.14

  	
   

  	
  Undertaking for
  Costs

  	
   

  	
  41

  	
   

  
	
   

  	
  Section 5.15

  	
   

  	
  Waiver
  of Usury Stay or Extension Laws

  	
   

  	
  41

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VI THE TRUSTEE

  	
   

  	
  42

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.1

  	
   

  	
  Certain
  Duties and Responsibilities

  	
   

  	
  42

  	
   

  
	
   

  	
  Section 6.2

  	
   

  	
  Notice of Defaults

  	
   

  	
  43

  	
   

  
	
   

  	
  Section 6.3

  	
   

  	
  Certain Rights
  of Trustee

  	
   

  	
  43

  	
   

  
	
   

  	
  Section 6.4

  	
   

  	
  Not
  Responsible for Recitals or Issuance of Securities

  	
   

  	
  44

  	
   

  
	
   

  	
  Section 6.5

  	
   

  	
  May Hold Securities

  	
   

  	
  44

  	
   

  
	
   

  	
  Section 6.6

  	
   

  	
  Money Held in Trust

  	
   

  	
  44

  	
   

  
	
   

  	
  Section 6.7

  	
   

  	
  Compensation
  and Reimbursement

  	
   

  	
  44

  	
   

  
	
   

  	
  Section 6.8

  	
   

  	
  Disqualification;
  Conflicting Interests

  	
   

  	
  45

  	
   

  
	
   

  	
  Section 6.9

  	
   

  	
  Corporate
  Trustee Required; Eligibility

  	
   

  	
  45

  	
   

  
	
   

  	
  Section 6.10

  	
   

  	
  Resignation
  and Removal; Appointment of Successor

  	
   

  	
  46

  	
   

  
	
   

  	
  Section 6.11

  	
   

  	
  Acceptance
  of Appointment by Successor

  	
   

  	
  47

  	
   

  
	
   

  	
  Section 6.12

  	
   

  	
  Merger,
  Conversion, Consolidation or Succession to Business

  	
   

  	
  48

  	
   

  
	
   

  	
  Section 6.13

  	
   

  	
  Preferential
  Collection of Claims Against Company

  	
   

  	
  49

  	
   

  
	
   

  	
  Section 6.14

  	
   

  	
  Appointment
  of Authenticating Agent

  	
   

  	
  49

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VII HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

  	
   

  	
  50

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.1

  	
   

  	
  Company
  to Furnish Trustee Names and Addresses of Holders

  	
   

  	
  50

  	
   

  
	
   

  	
  Section 7.2

  	
   

  	
  Preservation
  of Information, Communications to Holders

  	
   

  	
  51

  	
   

  
										



 


 


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  Section 7.3

  	
   

  	
  Reports by Trustee

  	
   

  	
  51

  	
   

  
	
   

  	
  Section 7.4

  	
   

  	
  Reports by Company

  	
   

  	
  51

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

  	
   

  	
  53

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 8.1

  	
   

  	
  Company
  May Consolidate, Etc., Only on Certain Terms

  	
   

  	
  53

  	
   

  
	
   

  	
  Section 8.2

  	
   

  	
  Successor
  Corporation Substituted

  	
   

  	
  53

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX
  SUPPLEMENTAL INDENTURES

  	
   

  	
  54

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 9.1

  	
   

  	
  Supplemental
  Indentures without Consent of Holders

  	
   

  	
  54

  	
   

  
	
   

  	
  Section 9.2

  	
   

  	
  Supplemental
  Indentures with Consent of Holders

  	
   

  	
  55

  	
   

  
	
   

  	
  Section 9.3

  	
   

  	
  Execution
  of Supplemental Indentures

  	
   

  	
  56

  	
   

  
	
   

  	
  Section 9.4

  	
   

  	
  Effect
  of Consents; Effect of  Supplemental
  Indentures

  	
   

  	
  57

  	
   

  
	
   

  	
  Section 9.5

  	
   

  	
  Conformity
  with Trust Indenture Act

  	
   

  	
  57

  	
   

  
	
   

  	
  Section 9.6

  	
   

  	
  Reference
  in Securities to Supplemental Indentures

  	
   

  	
  57

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  X COVENANTS

  	
   

  	
  58

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 10.1

  	
   

  	
  Payment
  of Principal, Premium and Interest

  	
   

  	
  58

  	
   

  
	
   

  	
  Section 10.2

  	
   

  	
  Maintenance
  of Office or Agency

  	
   

  	
  58

  	
   

  
	
   

  	
  Section 10.3

  	
   

  	
  Money
  for Security Payments to be Held in Trust

  	
   

  	
  58

  	
   

  
	
   

  	
  Section 10.4

  	
   

  	
  Statement as
  to Compliance

  	
   

  	
  60

  	
   

  
	
   

  	
  Section 10.5

  	
   

  	
  Waiver of
  Certain Covenants

  	
   

  	
  60

  	
   

  
	
   

  	
  Section 10.6

  	
   

  	
  Additional Sums

  	
   

  	
  60

  	
   

  
	
   

  	
  Section 10.7

  	
   

  	
  Additional Covenants

  	
   

  	
  61

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI
  REDEMPTION OF SECURITIES

  	
   

  	
  62

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 11.1

  	
   

  	
  Applicability
  of This Article

  	
   

  	
  62

  	
   

  
	
   

  	
  Section 11.2

  	
   

  	
  Election
  to Redeem; Notice to Trustee

  	
   

  	
  62

  	
   

  
	
   

  	
  Section 11.3

  	
   

  	
  Selection
  of Securities to be Redeemed

  	
   

  	
  62

  	
   

  
	
   

  	
  Section 11.4

  	
   

  	
  Notice of Redemption

  	
   

  	
  63

  	
   

  
	
   

  	
  Section 11.5

  	
   

  	
  Deposit of
  Redemption Price

  	
   

  	
  64

  	
   

  
	
   

  	
  Section 11.6

  	
   

  	
  Payment
  of Securities Called for Redemption

  	
   

  	
  64

  	
   

  
	
   

  	
  Section 11.7

  	
   

  	
  Right
  of Redemption of Securities Initially Issued to a SVB Trust

  	
   

  	
  64

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII SINKING FUNDS

  	
   

  	
  65

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 12.1

  	
   

  	
  Applicability of
  Article

  	
   

  	
  65

  	
   

  
	
   

  	
  Section 12.2

  	
   

  	
  Satisfaction
  of Sinking Fund Payments with Securities

  	
   

  	
  65

  	
   

  
	
   

  	
  Section 12.3

  	
   

  	
  Redemption
  of Securities for Sinking Fund

  	
   

  	
  65

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIII
  SUBORDINATION OF SECURITIES

  	
   

  	
  67

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.1

  	
   

  	
  Securities
  Subordinate to Senior Debt

  	
   

  	
  67

  	
   

  
	
   

  	
  Section 13.2

  	
   

  	
  Payment
  Over of Proceeds Upon Dissolution, Etc

  	
   

  	
  67

  	
   

  
	
   

  	
  Section 13.3

  	
   

  	
  Prior
  Payment to Senior Debt Upon Acceleration of Securities

  	
   

  	
  68

  	
   

  
										



 


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  Section 13.4

  	
   

  	
  No
  Payment When Senior Debt in Default

  	
   

  	
  69

  	
   

  
	
   

  	
  Section 13.5

  	
   

  	
  Payment
  Permitted If No Default

  	
   

  	
  70

  	
   

  
	
   

  	
  Section 13.6

  	
   

  	
  Subrogation
  to Rights of Holders of Senior Debt

  	
   

  	
  70

  	
   

  
	
   

  	
  Section 13.7

  	
   

  	
  Provisions
  Solely to Define Relative Rights

  	
   

  	
  70

  	
   

  
	
   

  	
  Section 13.8

  	
   

  	
  Trustee
  to Effectuate Subordination

  	
   

  	
  71

  	
   

  
	
   

  	
  Section 13.9

  	
   

  	
  No
  Waiver of Subordination Provisions

  	
   

  	
  71

  	
   

  
	
   

  	
  Section 13.10

  	
   

  	
  Notice to Trustee

  	
   

  	
  71

  	
   

  
	
   

  	
  Section 13.11

  	
   

  	
  Reliance
  on Judicial Order or Certificate of Liquidating Agent

  	
   

  	
  72

  	
   

  
	
   

  	
  Section 13.12

  	
   

  	
  Trustee
  Not Fiduciary for Holders of Senior Debt

  	
   

  	
  72

  	
   

  
	
   

  	
  Section 13.13

  	
   

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

  	
   

  	
  72

  	
   

  
	
   

  	
  Section 13.14

  	
   

  	
  Article
  Applicable to Paying Agents

  	
   

  	
  73

  	
   

  
	
   

  	
  Section 13.15

  	
   

  	
  Certain
  Conversions or Exchanges Deemed Payment

  	
   

  	
  73

  	
   

  
										



 


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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 ______________, 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 ______________, 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.


 


2

















 


“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 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.


 


3

















 


“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.


“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.


 


4

















 


“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.


“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.


 


5

















 


“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.


“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


 


6

















 


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.


“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 other representative, (i) in the case of
such Senior Debt issued pursuant to our agreement providing for voting
arrangements as 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.


“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


 


8

















 


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, 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.


 


9

















 


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.


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


 


10

















 


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 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


 


11

















 


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 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.


 


12

















 


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.  If any provision
of this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or excluded, as the case may be.


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.


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.


 


13























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, 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


 


14

















 


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 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


 


15

















 


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 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


 


16

















 


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.


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.


 


17

















 


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 __________, 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.


[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.]


 


18

















 


[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 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.]


 


19

















 


[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 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


 


20

















 


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

  
				



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.


 


21

















 


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;


(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;


 


22

















 


(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;


(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;


 


23

















 


(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 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,


 


24

















 


(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
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,


 


25

















 


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.


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.


 


26

















 


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.


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.


 


27

















 


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.


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


 


28

















 


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).


(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.


 


29

















 


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 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


30

















 


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.


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.


 


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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, each of the
aforementioned parties 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
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


 


32

















 


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.


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.


 


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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


(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


 


34

















 


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:


(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


 


35

















 


(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
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


 


36

















 


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 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


 


37

















 


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;


(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


 


38

















 


(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 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


 


39

















 


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.


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


 


40

















 


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 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.


 


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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 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.


 


42

















 


(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 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


 


43

















 


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.


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


 


44

















 


(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).


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


 


45

















 


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:


(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,


 


46

















 


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 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


 


47

















 


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.


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


 


48

















 


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.


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


 


49

















 


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

  
						



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


 


50

















 


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.


(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


 


51

















 


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).


 


 


 


52























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 corporation 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, partnership or trust 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;


(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.


 


53

















 


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:


(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


 


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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.


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


 


55

















 


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
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


 


56

















 


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.


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.


 


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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 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


 


58

















 


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 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


 


59

















 


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.


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


 


60

















 


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 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.


 


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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.


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.


 


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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;


(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.


 


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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.


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.


 


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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
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


 


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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
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


 


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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 distribution of assets of the Company
of any kind or character, whether in cash, property or securities, to creditors
upon any given 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.


 


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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 (1) the Senior Debt is
assumed by the new corporation, if any, resulting from any reorganization or
readjustment and (2) 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.


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


 


 


 


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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 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 periods prescribed 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
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 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.


 


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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.


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


 


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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.


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


 


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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 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.


 


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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 pasties 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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
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  WILMINGTON TRUST
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