First Supplemental Indenture, dated as of July 1, 2021, by and among Wilmington Trust Company, as trustee, SVB Financial Group and Boston Private Financial Holdings, Inc
FIRST SUPPLEMENTAL INDENTURE
Boston Private Capital Trust II
THIS FIRST SUPPLEMENTAL INDENTURE dated as of July 1, 2021 (this Supplemental Indenture) is by and among Wilmington Trust Company, a Delaware trust company, as Trustee (herein, together with its successors in interest, the Trustee), SVB Financial Group, a Delaware corporation (the Successor Company), and Boston Private Financial Holdings, Inc., a bank holding company incorporated in the Commonwealth of Massachusetts (the Company), under the Indenture referred to below.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the Trustee, the Company and the Successor Company hereby agree as follows:
The Trustee and the Company are parties to that certain Indenture dated as of September 27, 2005 (the Indenture), pursuant to which the Company issued U.S. $103,093,000 of its Fixed/Floating Rate Junior Subordinated Debt Securities due 2035 (the Debt Securities).
As permitted by the terms of the Indenture, the Company, simultaneously with the effectiveness of this Supplemental Indenture, shall merge (referred to herein for purposes of Article XI of the Indenture as the Merger) with and into the Successor Company with the Successor Company as the surviving corporation, whereupon the separate corporate existence of the Company will cease. The parties hereto are entering into this Supplemental Indenture pursuant to, and in accordance with, Articles IX and XI of the Indenture.
SECTION 1. Definitions. All capitalized terms used herein that are defined in the Indenture, either directly or by reference therein, shall have the respective meanings assigned them in the Indenture except as otherwise provided herein or unless the context otherwise requires.
SECTION 2. Interpretation.
In this Supplemental Indenture, unless a clear contrary intention appears:
the singular number includes the plural number and vice versa;
reference to any gender includes the other gender;
the words herein, hereof and hereunder and other words of similar import refer to this Supplemental Indenture as a whole and not to any particular Section or other subdivision;
reference to any Person includes such Persons successors and assigns but, if applicable, only if such successors and assigns are permitted by this Supplemental Indenture or the Indenture, and reference to a Person in a particular capacity excludes such Person in any other capacity or individually provided that nothing in this clause (iv) is intended to authorize any assignment not otherwise permitted by this Supplemental Indenture or the Indenture;
reference to any agreement, document or instrument means such agreement, document or instrument as amended, supplemented or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof, as well as any substitution or replacement therefor and reference to any note includes modifications thereof and any note issued in extension or renewal thereof or in substitution or replacement therefor;
reference to any Section means such Section of this Supplemental Indenture; and
the word including (and with correlative meaning include) means including without limiting the generality of any description preceding such term.
No provision in this Supplemental Indenture shall be interpreted or construed against any Person because that Person or its legal representative drafted such provision.
SECTION 3. Assumption of Obligations.
Pursuant to, and in compliance and accordance with, Section 11.01 and Section 11.02 of the Indenture, the Successor Company hereby expressly assumes all obligations of the Company under the Debt Securities, the Indenture, Guarantee Agreement, dated as of September 27, 2005 (the Guarantee), as Guarantor (as defined in the Guarantee) and the Amended and Restated Declaration of Trust, dated as of September 27, 2005 (the Declaration of Trust), as Sponsor (as defined in the Declaration of Trust), including the due and punctual payment of the principal of and premium, if any, and interest on all of the Debt Securities and the due and punctual performance and observance of all of the covenants and conditions of the Indenture to be performed or observed by the Company.
Pursuant to, and in compliance and accordance with, Section 11.02 of the Indenture, the Successor Company shall succeed to and be substituted for the Company, with the same effect as if the Successor Company had originally been named in the Indenture as the Company, and thereupon the Company shall be relieved of any further liability or obligation under the Indenture or upon the Debt Securities.
SECTION 4. Representations and Warranties. The Successor Company represents and warrants that (a) it has all the necessary power and authority to execute and deliver this Supplemental Indenture and to perform the covenants and obligations of the Indenture, (b) it is a corporation organized and existing under the laws of Delaware, (c) after giving effect to the Merger and this Supplemental Indenture, no Default or Event of Default, and no event that, after notice or lapse of time or both, would constitute an Event of Default, has occurred and is continuing and (d) this Supplemental Indenture is properly executed and delivered pursuant to Article IX and Article XI of the Indenture and does not require the consent of the Securityholders.
SECTION 5. Conditions of Effectiveness. This Supplemental Indenture shall become effective simultaneously with the effectiveness of the Merger, provided, however, that:
the Trustee shall have executed a counterpart of this Supplemental Indenture and shall have received one or more counterparts of this Supplemental Indenture executed by the Successor Company and the Company;
the Trustee shall have received an Officers Certificate stating that (i) in the opinion of the signers, all conditions precedent provided for in the Indenture, including in Articles IX and XI, relating to execution of the Merger and this Supplemental Indenture have been complied with, (ii) the Merger and this Supplemental Indenture comply with Articles IX and XI of the Indenture, (iii) it is proper for the Trustee under the provisions of Article IX of the Indenture to join in execution of the Supplemental Indenture and (iv) the execution of this Supplemental Indenture is authorized or permitted by and conforms to the terms of Article IX of the Indenture;
the Trustee shall have received an Opinion of Counsel to the effect that (i) the Merger and this Supplemental Indenture comply with Articles IX and XI of the Indenture, (ii) the execution of this Supplemental Indenture is authorized or permitted by and conforms to the terms of Article IX of the Indenture, (iii) it is proper for the Trustee under the provisions of Article IX of the Indenture to join in execution of the Supplemental Indenture and (iv) all conditions precedent provided for in the Indenture, including in Articles IX and XI, relating to the execution of the Merger and this Supplemental Indenture have been complied with; and
the Successor Company and the Company shall have duly executed and filed with the Secretary of State of the State of Delaware a Certificate of Merger in connection with the Merger.
SECTION 6. Reference to the Indenture.
Upon the effectiveness of this Supplemental Indenture, the Indenture shall be and hereby is modified in accordance herewith.
Upon the effectiveness of this Supplemental Indenture, this Supplemental Indenture forms a part of the Indenture for all purposes and each reference in the Indenture to this Indenture, hereunder, herein or words of like import shall mean and be a reference to the Indenture, as affected, amended and supplemented hereby.
Upon the effectiveness of this Supplemental Indenture, each reference in the Debt Securities to the Indenture including each term defined by reference to the Indenture shall mean and be a reference to the Indenture or such term, as the case may be, as affected, amended and supplemented hereby; the Debt Securities shall continue to be governed by the Indenture; and every holder of Debt Securities heretofore or hereafter under the Indenture shall be bound by this Supplemental Indenture.
The Indenture, as amended and supplemented hereby shall remain in full force and effect and is hereby ratified and confirmed.
SECTION 7. Execution in Counterparts. This Supplemental Indenture may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which when taken together shall constitute but one and the same instrument.
SECTION 8. Governing Law; Binding Effect. This Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York and shall be binding upon the parties hereto and their respective successors and assigns.
SECTION 9. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture. The recitals of fact contained herein shall be taken as the statements solely of the Company or the Successor Company, and the Trustee assumes no responsibility for the correctness thereof.
[Signatures on following page]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the day and year first written above.
|BOSTON PRIVATE FINANCIAL HOLDINGS, INC.|
|Name: Steven M. Gaven|
|Title: Executive Vice President and|
|Chief Financial Officer|
|SVB FINANCIAL GROUP|
|Name: Michael Kruse|
|WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as Trustee|
|Name:||Michael H. Wass|