EXHIBIT 4.11
SILICON VALLEY BANCSHARES
OFFICERS' CERTIFICATE AND COMPANY ORDER
RELATING TO THE
8.25% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES DUE JUNE 15, 2028
OF SILICON VALLEY BANCSHARES
Pursuant to the Indenture dated as of May 22, 1998 (the "Indenture"),
between Silicon Valley Bancshares, a California corporation (the "Company")
and Wilmington Trust Company, as Debenture Trustee (the "Debenture Trustee")
and resolutions adopted by the Pricing Committee of the Company's Board of
Directors on May 19, 1998; this Officers' Certificate is being delivered to
the Debenture Trustee to establish the terms of one series of securities (the
"Securities") in accordance with Section 3.1 of the Indenture, to establish
the form of the Securities of such series in accordance with Section 2.1 of
the Indenture, to request the authentication and delivery of the Securities
of such series pursuant to Section 3.3 of the Indenture and to comply with
the provisions of Section 1.2 of the Indenture. This Officers' Certificate
shall be treated for all purposes under the Indenture as a supplemental
indenture thereto.
All conditions precedent provided for in the Indenture relating to the
establishment of (i) a series of Securities, (ii) the form of Securities of
such series, and (iii) authentication of such series of Securities, have been
complied with.
Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to them in the Indenture.
1. ESTABLISHMENT OF SERIES OF SECURITIES PURSUANT TO SECTION 3.1 OF THE
INDENTURE.
There are hereby established pursuant to Section 3.1 of the Indenture a
series of Securities which shall have the following terms:
A The Securities of such series shall bear the title "8.25% Junior
Subordinated Deferrable Interest Debentures Due June 15, 2028."
B. The aggregate principal amount of such series of Securities to
be issued pursuant to this Officers' Certificate and Company Order shall be
limited to $41,237,125 (except for Securities authenticated and delivered
upon registration of, transfer of, or in exchange for, or in lieu of, other
Securities of such series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.7 of
the Indenture and except for any Securities which, pursuant to Section 3.3 of
the Indenture, are deemed never to have been authenticated and delivered
thereunder).
C. The date on which the principal of the Securities is due and
payable shall be June 15, 2028.
D. The Securities shall bear interest at the rate of 8.25% per
annum (based upon a 360-day year of twelve 30-day months), from and including
the date of original issuance or from and including the most recent Interest
Payment Date to which interest has been paid or duly provided for, as the
case may be, payable quarterly in arrears on the 15th day of March, June,
September and December in each year (each, an "Interest Payment Date"),
commencing September 15, 1998, until the principal thereof is paid or made
available for payment. The Business Day next preceding an Interest Payment
Date shall be the "Regular Record Date" for the interest payable on such
Interest Payment Date. Accrued interest that is not paid on such applicable
Interest Payment Date will bear additional interest on the amount thereof (to
the extent permitted by law) at a rate per annum of 8.25% thereof compounded
quarterly.
In addition, so long as no Event of Default with respect to the
Securities has occurred or is continuing, the Company has the right under the
Indenture at any time during the term of such Securities to defer the payment
of interest at any time or from time to time for a period not exceeding 20
consecutive quarterly periods with respect to each Extension Period, provided
that no Extension Period may extend beyond the Stated Maturity. At the end
of such Extension Period, the Company must pay all interest then accrued and
unpaid (together with interest thereon at the annual rate of 8.25%,
compounded quarterly, to the extent permitted by applicable law).
E. Principal of and interest on the Securities will be payable,
and, except as provided in Section 3.5 of the Indenture with respect to a
Global Security (as defined below), the transfer of the Securities will be
registrable and Securities will be exchangeable for Securities bearing
identical terms and provisions at the corporate trust office of Wilmington
Trust Company in the City of Wilmington, Delaware.
F. The Securities will be redeemable in whole at any time and in
part from time to time, at the option of the Company at any time on or after
June 15, 2003, subject to the Company having received prior regulatory
approval if then so required, at a redemption price equal to the accrued and
unpaid interest on the Securities so redeemed to the date fixed for
redemption, plus 100% of the principal amount thereof.
In addition, upon the occurrence of a Tax Event, an Investment
Company Event or a Capital Treatment Event, the Company may, at its option
and subject to receipt of prior regulatory approval if then required under
applicable capital guidelines or policies, prepay the Securities in whole
(but not in part) at any time within 90 days of the occurrence of such Tax
Event, Investment Company Event or a Capital Treatment Event, at a redemption
price equal to the accrued and unpaid interest on the Securities so redeemed
to the date fixed for redemption, plus 100% of the principal amount thereof.
G. The Company shall not be obligated to redeem or purchase any
Securities pursuant to any sinking fund or analogous provisions or at the
option of the Holder.
H. The Securities will be issued only in fully registered form and
the authorized minimum denomination of the Securities shall be $25.00 and any
integral multiple of $25.00 in excess thereof.
I. The Securities shall be denominated, and payments of principal
of (and premium, if any) and interest on the Securities of such series will
be made, in United States dollars.
J. The Securities shall be subject to the Events of Default
specified in Section 5.1, paragraphs (a) through (e), of the Indenture.
K. The portion of the principal amount of the Securities which
shall be payable upon declaration of acceleration of maturity thereof shall
not be other than the principal amount thereof.
L. The Securities will be issued in fully registered form, without
coupons. The Securities will not be issued in bearer form.
M. The amount of payments of principal of and any premium or
interest on the Securities will not be determined with reference to an index.
N. The Securities shall not be issued in the form of a temporary
Global Security (as defined below).
O. The Securities will initially be deposited with, and on behalf
of, The Depository Trust Company, New York, New York, as Depositary, and will
be represented by a global security (a "Global Security") registered in the
name of a nominee of the Depositary. If, and so long as the Depositary or
its nominee is the registered holder of any Global Security, the Depositary
or its nominee, as the case may be, will be considered the sole Holder of the
Securities of such series represented by such Global Security for all
purposes under the Indenture and the Securities.
P. The Trustee shall be Paying Agent.
Q. The Securities will not be convertible into any other securities
or property of the Company. The Securities of any series may not be
exchanged for Securities of any other series.
R. The Trust Agreement, the Amended and Restated Trust Agreement
and the Guarantee Agreement are in the forms attached hereto as Exhibits A,
B, and C respectively.
S. The Securities are 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 and Subordinated Debt, as provided in the Indenture.
II. ESTABLISHMENT OF FORMS OF SECURITIES PURSUANT TO SECTION 2.1 OF
INDENTURE.
It is hereby established pursuant to Section 2.1 of the Indenture that
the Securities shall be substantially in the form attached as Exhibit D
hereto.
III. ORDER FOR THE AUTHENTICATION AND DELIVERY OF SECURITIES PURSUANT
TO SECTION 3.3 OF THE INDENTURE.
It is hereby ordered pursuant to Section 3.3 of the Indenture that the
Trustee authenticate, in the manner provided by the Indenture, Securities in
the aggregate principal amount of $41,237,125 registered in the name of Cede
& Co., as the nominee of The Depository Trust Company, which Securities have
been heretofore duly executed by the proper officers of the Company and
delivered to you as provided in the Indenture, and to deliver said
authenticated Securities to Wilmington Trust Company or its custodian on May
22, 1998.
IV. OTHER MATTERS.
Attached as Exhibit E hereto are true and correct copies of resolutions
adopted by the Pricing Committee of the Board of Directors of the Company at
a meeting on May 19, 1998. Attached as Exhibit F hereto are true and correct
copies of resolutions adopted by the Board of Directors of the Company at a
meeting on April 16, 1998. Such resolutions have not been further amended,
modified or rescinded and remain in full force and effect; and such
resolutions (together with this Officers' Certificate) are the only
resolutions or other action adopted by the Company's Board of Directors or
any committee thereof or by any Authorized Officers relating to the offering
and sale of the Securities.
The undersigned have read the pertinent sections of the Indenture
including the related definitions contained therein. The undersigned have
examined the resolutions adopted by the Board of Directors and the Pricing
Committee of the Board of Directors of the Company. In the opinion of the
undersigned, the undersigned have made such examination or investigation as
is necessary to enable the undersigned to express an informed opinion as to
whether or not the conditions precedent to the establishment of (i) a series
of Securities, (ii) the forms of such Securities and (iii) authentication of
such series of Securities, contained in the Indenture have been complied
with. In the opinion of the undersigned, such conditions have been complied
with.
IN WITNESS WHEREOF, the undersigned have executed this Certificate this
22nd day of May, 1998.
SILICON VALLEY BANCSHARES
By: /s/ John C. Dean
------------------------------
Name: John C. Dean
Title: President and Chief Executive
Officer
By: /s/ Barbara B. Kamm
------------------------------
Name: Barbara B. Kamm
Title: Executive Vice President and
Acting Chief Financial Officer