Exhibit 4.2

 

Execution Version

 

HERITAGE COMMERCE CORP

 

FIRST SUPPLEMENTAL INDENTURE
 dated as of May 26, 2017

 

to the Subordinated Indenture
 dated as of May 26, 2017

 

5.25% Fixed-to-Floating Rate Subordinated Notes due 2027

 

Wilmington Trust, National Association, as Trustee

 











 

FIRST SUPPLEMENTAL INDENTURE

 

THIS FIRST SUPPLEMENTAL INDENTURE (“First Supplemental Indenture”), dated as of May 26, 2017 between Heritage Commerce Corp, a California corporation (the “Company”), and Wilmington Trust, National Association, a national banking association, not in its individual capacity but solely as trustee (“Trustee”).

 

RECITALS

 

WHEREAS, the Company and the Trustee have executed and delivered a Subordinated Indenture, dated as of May 26, 2017 (the “Base Indenture” and as supplemented by this First Supplemental Indenture and further supplemented from time to time, the “Indenture”), to provide for the issuance from time to time by the Company of its unsecured subordinated indebtedness to be issued in one or more series as provided in the Indenture;

 

WHEREAS, the issuance and sale of Forty Million Dollars ($40,000,000) aggregate principal amount of a new series of Securities of the Company designated as its 5.25% Fixed-to-Floating Rate Subordinated Notes due 2027 (the “2027 Notes”) have been authorized by resolutions adopted by the Pricing Committee of the Board of Directors of the Company;

 

WHEREAS, the Company desires to issue and sell Forty Million Dollars ($40,000,000) aggregate principal amount of the 2027 Notes as of the date hereof;

 

WHEREAS, the Company desires to establish the terms of the 2027 Notes;

 

WHEREAS, all things necessary to make this First Supplemental Indenture a valid and binding supplement to the Base Indenture in accordance with its terms and the terms of the Base Indenture have been done;

 

WHEREAS, the Company has complied with all conditions precedent provided for in the Base Indenture relating to this First Supplemental Indenture; and

 

WHEREAS, the Company has requested that the Trustee execute and deliver this First Supplemental Indenture.

 

NOW, THEREFORE, for and in consideration of the premises stated herein and the purchase of the 2027 Notes by the Holders thereof, the Company and the Trustee covenant and agree, for the equal and proportionate benefit of the Holders of the 2027 Notes, as follows:

 

ARTICLE I
 SCOPE OF FIRST SUPPLEMENTAL INDENTURE

 

Section 1.01                             Scope.  This First Supplemental Indenture constitutes a supplement to the Base Indenture and an integral part of the Indenture and shall be read together with the Base Indenture as though all the provisions thereof are contained in one instrument.  Except as expressly amended by the First Supplemental Indenture, the terms and provisions of the Base Indenture shall remain in full force and effect.  Notwithstanding the foregoing, this First Supplemental Indenture shall only apply to the 2027 Notes.

 

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ARTICLE II
 DEFINITIONS

 

Section 2.01                             Definitions and Other Provisions of General Application.  For all purposes of this First Supplemental Indenture unless otherwise specified herein:

 

(a)                                 all terms used in this First Supplemental Indenture which are not otherwise defined herein shall have the meanings they are given in the Base Indenture;

 

(b)                                 the provisions of general application stated in Sections 10.1 through 10.15 of the Base Indenture shall apply to this First Supplemental Indenture, except that the words “herein,” “hereof,” “hereto” and “hereunder” and other words of similar import refer to this First Supplemental Indenture as a whole and not to the Base Indenture or any particular Article, Section or other subdivision of the Base Indenture or this First Supplemental Indenture;

 

(c)                                  Section 1.1 of the Base Indenture is amended and supplemented, solely with respect to the 2027 Notes, by inserting the following additional defined terms in their appropriate alphabetical positions:

 

“1940 Act Event” means if the Company is required to register as an investment company pursuant to the Investment Company Act of 1940, as amended (15 U.S.C. 80a-1 et seq.).

 

“Calculation Agent” has the meaning ascribed in Section 3.02(e)(iv).

 

“Custodian” means receiver, liquidator, trustee, assignee or other similar official.

 

“Depository” has the meaning provided in Section 3.02(m).

 

“Designated LIBOR Page” means the display on Bloomberg Page BBAM1 (or any successor or substitute page of such service, or any successor to such service selected by the Company), for the purpose of displaying the London interbank rates for U.S. dollars.

 

“DTC” has the meaning provided in Section 3.02(g).

 

“Federal Reserve” has the meaning provided in the definition of “Tier 2 Capital Event.”

 

“Fixed Rate Interest Payment Date” has the meaning provided in Section 3.02(e)(i).

 

“Fixed Rate Period” has the meaning provided in Section 3.02(e)(i).

 

“Fixed Rate Regular Record Date” has the meaning provided in Section 3.02(e)(i).

 

“Floating Rate Interest Payment Date” has the meaning provided in Section 3.02(e)(ii).

 

“Floating Rate Period” has the meaning provided in Section 3.02(e)(ii).

 

“Floating Rate Regular Record Date” has the meaning provided in Section 3.02(e)(ii).

 

“Interest Payment Date” has the meaning provided in Section 3.02(e)(ii).

 

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“Issue Date” means May 26, 2017.

 

“London Banking Day” means any day on which commercial banks are open for business (including dealing in U.S. dollars) in London.

 

“Representative Amount” has the meaning provided in the definition of “Three-Month LIBOR.”

 

“Reset Rate Determination Date” means the second London Banking Day immediately preceding the first day of each applicable interest period commencing on the first Floating Rate Interest Payment Date.

 

“Tax Event” shall mean the receipt by the Company of an opinion of independent tax counsel to the effect that, as a result of (a) an amendment to, or change (including any announced prospective change) in, the laws or any regulations thereunder of the United States or any political subdivision or taxing authority thereof or therein, or (b) any official administrative pronouncement or judicial decision interpreting or applying such laws or regulations, which amendment or change becomes effective or which pronouncement or decision is announced on or after the date of original issuance of the 2027 Notes, in each case, there is more than an insubstantial risk that the interest payable by the Company on the 2027 Notes is not, or within 90 days of the date of such opinion will not be, deductible by the Company, in whole or in part, for United States federal income tax purposes.

 

“Tier 2 Capital Event” shall mean the Company’s good faith determination (as evidenced by a resolution of the board of directors to that effect) that, as a result of (a) any amendment to, or change (including any announced prospective change) in, the laws or any regulations thereunder of the United States or any rules, guidelines or policies of an applicable regulatory authority for the Company or (b) any official administrative pronouncement or judicial decision interpreting or applying such laws or regulations, which amendment or change is effective or which pronouncement or decision is announced on or after the date of original issuance of the 2027 Notes, in each case, there is more than an insubstantial amount of risk that the Company will not be entitled to treat the 2027 Notes then outstanding as Tier 2 Capital (or its then equivalent if the Company were subject to such capital requirement) for purposes of capital adequacy requirements of the Board of Governors of the Federal Reserve System (the “Federal Reserve”) (or any successor regulatory authority with jurisdiction over bank holding companies), as then in effect and applicable to the Company, for so long as any Note is outstanding.

 

“Three-Month LIBOR” means, for any interest period, the offered rate for deposits in U.S. dollars having a maturity of three months that appears on the Designated LIBOR Page as of 11:00 a.m., London time, on the Reset Rate Determination Date related to such interest period. If such rate does not appear on such page at such time, then the Calculation Agent will request the principal London office of each of four major reference banks in the London interbank market, selected by the Company for this purpose and whose names and contact information will be provided by the Company to the Calculation Agent, to provide such bank’s offered quotation to prime banks in the London interbank market for deposits in U.S. dollars with a term of three months as of 11:00 a m., London time, on such Reset Rate Determination Date and in a principal amount equal to an amount for a single transaction in U.S. dollars in the relevant market at the 

 

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relevant time as determined by  the Company and provided to the Calculation Agent (a “Representative Amount”).  If at least two such quotations are so provided, Three-Month LIBOR for the interest period related to such Reset Rate Determination Date will be the arithmetic mean of such quotations.  If fewer than two such quotations are provided, the Calculation Agent will request each of three major banks in the City of New York selected by the Company for this purpose and whose names and contact information will be provided by the Company to the Calculation Agent, to provide such bank’s rate for loans in U.S. dollars to leading European banks with a term of three months as of approximately 11:00 a m., New York City time, on such Reset Rate Determination Date and in a Representative Amount.  If at least two such rates are so provided, Three-Month LIBOR for the interest period related to such Reset Rate Determination Date will be the arithmetic mean of such quotations.  If fewer than two such rates are so provided, then Three-Month LIBOR for the interest period related to such Reset Rate Determination Date will be set to equal the Three-Month LIBOR for the immediately preceding interest period or, in the case of the interest period commencing on the first Floating Rate Interest Payment Date, 1.885%, resulting in a coupon rate of 5.25%.  All percentages used in or resulting from any calculation of Three-Month LIBOR will be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point, with 0.000005% rounded up to 0.00001%.  Notwithstanding the foregoing, in the event that Three-Month LIBOR as determined in accordance with this definition is less than zero, Three-Month LIBOR for such interest period shall be deemed to be zero.

 

(d)                                 Section 1.1 of the Base Indenture is amended and supplemented, solely with respect to the 2027 Notes, by replacing the corresponding defined term in the Base Indenture with the following defined terms:

 

“Senior Indebtedness” means the principal, premium, if any, unpaid interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company), fees, charges, expenses, reimbursement and indemnification obligations, and all other amounts payable under or in respect of the following indebtedness of the Company: (i) any obligation (a) for money borrowed or purchased by the Company; (b) for the payment of the purchase price of any business, property or assets evidenced by a bond, note, debenture or similar instrument or agreement (including purchase money obligations), whether by purchase, merger, consolidation or otherwise; or (c) which is a direct or indirect obligation which arises as a result of banker’s acceptances or bank letters of credit issued to secure obligations of the Company, or to secure the payment of revenue bonds issued for the benefit of the Company whether contingent or otherwise; (ii) any obligation of the Company as lessee under any lease of property which is reflected on the Company’s balance sheet as a capitalized lease; (iii) any obligation to general creditors, which shall not include trade creditors; (iv) any obligation arising from direct credit substitutes; (v) any obligation associated with derivative products such as interest rate and currency exchange contracts, foreign exchange contracts, commodity contracts or any similar arrangements; and (vi) all obligations of the type referred to above of other persons or entities for the payment of which the Company is responsible or liable as obligor, guarantor or otherwise, whether or not classified as a liability on a balance sheet prepared in accordance with accounting principles generally accepted in the United States, in each case, whether now outstanding, or created, assumed, incurred or guaranteed in the future.  With respect to the 2027 Notes, Senior Indebtedness excludes any indebtedness that (a) expressly states that it is junior to, or ranks equally in right of payment with, the 2027 Notes; or (b) is 

 

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identified as junior to, or equal in right of payment with, the 2027 Notes in any board resolution establishing such series of subordinated indebtedness or in  any supplemental indenture. Notwithstanding the foregoing, and for the avoidance of doubt, if the Federal Reserve (or other competent regulatory agency or authority) promulgates any rule or issues any interpretation that defines general creditor(s), the main purpose of which is to establish criteria for determining whether the subordinated debt of a financial or bank holding company is to be included in its capital, then the term “general creditors” as used in the definition of “Senior Indebtedness” will have the meaning as described in that rule or interpretation.

 

ARTICLE III
 FORM AND TERMS OF THE 2027 Notes

 

Section 3.01                             Form and Dating.

 

(a)                                 The 2027 Notes shall be substantially in the form of Exhibit A attached hereto.  The 2027 Notes shall be executed on behalf of the Company by one of its Officers.  The 2027 Notes may have a legend or legends or endorsements as may be required to comply with any law or with any rules of any securities exchange or usage.  The 2027 Notes shall be dated the date of their authentication.

 

(b)                                 The terms contained in the 2027 Notes shall constitute, and are hereby expressly made, a part of the Indenture as supplemented by this First Supplemental Indenture, and the Company and the Trustee, by their execution and delivery of this First Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby.

 

Section 3.02                             Terms of the 2027 Notes.  The following terms relating to the 2027 Notes are hereby established:

 

(a)                                 Title.  The 2027 Notes shall constitute a series of Securities having the title “Heritage Commerce Corp 5.25% Fixed-to-Floating Rate Subordinated Notes due 2027” and the CUSIP number 426927 AD1.

 

(b)                                 Principal Amount.  The aggregate principal amount of the 2027 Notes that may be authenticated and delivered under the Indenture, as amended hereby, shall be Forty Million Dollars ($40,000,000) on the Issue Date.  Provided that no Event of Default has occurred and is continuing with respect to the 2027 Notes, the Company may, without notice to or the consent of the Holders, create and issue additional Securities having the same terms as, and ranking equally and ratably with, the 2027 Notes in all respects and so that such additional 2027 Notes will be consolidated and form a single series with, and have the same terms as to status, redemption or otherwise as, the 2027 Notes initially issued, provided that such additional 2027 Notes are fungible for U.S. federal income tax purposes with the 2027 Notes.

 

(c)                                  Person to Whom Interest is Payable.  Interest payable, and punctually paid or duly provided for, on any Interest Payment Date will be paid to the person in whose name the 2027 Notes are registered for such interest at the close of business on the fifteenth (15th) day of the month immediately preceding the applicable Interest Payment Date, whether or not such day is a Business Day.  Any such interest which is payable, but not so punctually paid or duly provided for on any Interest Payment Date shall cease to be payable to the Holder on such 

 

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relevant record date by virtue of having been a Holder on such date, and such defaulted interest may be paid by the Company to the person in whose name the 2027 Note is registered at the close of business on a  special record date for the payment of such defaulted interest to be fixed by the Company, notice whereof shall be given to Holders of 2027 Notes of this series not less than ten (10) days prior to such special record date that complies with Section 2.13 of the Base Indenture, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the 2027 Notes may be listed and upon such notice as may be required by such exchange and in compliance with the Base Indenture.

 

(d)                                 Maturity Date.  The entire outstanding Principal of the 2027 Notes shall be payable on June 1, 2027.

 

(e)                                  Interest.

 

(i)                                     The 2027 Notes will bear interest at a fixed rate of 5.25% per annum from and including May 26, 2017 to, but excluding, June 1, 2022 (the “Fixed Rate Period”). Interest accrued on the 2027 Notes during the Fixed Rate Period will be payable semi-annually in arrears on June 1 and December 1 of each year, commencing on December 1, 2017 (each such date a “Fixed Rate Interest Payment Date”).  The interest payable during the Fixed Rate Period will be paid to each holder in whose name a 2027 Note is registered at the close of business on the fifteenth (15th) day (whether or not a Business Day) of the month immediately preceding the applicable Fixed Rate Interest Payment Date (each such date, a “Fixed Rate Regular Record Date”).

 

(ii)                                  The 2027 Notes will bear a floating interest rate from and including June 1, 2022 to the Maturity Date or Redemption Date (the “Floating Rate Period”).  The floating interest rate will be reset quarterly, and the interest rate for any Floating Rate Period shall be equal to Three-Month LIBOR plus 336.5 basis points (i.e., 3.365%).  During the Floating Rate Period, interest on the 2027 Notes will be payable quarterly in arrears on March 1, June 1, September 1 and December 1 of each year commencing on September 1, 2022 to, but excluding, the Maturity Date or Redemption Date, as applicable (each such interest payment date, a “Floating Rate Interest Payment Date”, together with a Fixed Rate Interest Payment Date, an “Interest Payment Date”).  The interest payable during the Floating Rate Period will be paid to each holder in whose name a Note is registered at the close of business on the fifteenth (15th) day (whether or not a Business Day) of the month immediately preceding the applicable Floating Rate Interest Payment Date (each such date, a “Floating Rate Regular Record Date”).

 

(iii)                               The amount of interest payable on any Fixed Rate Interest Payment Date during the Fixed Rate Period will be computed on the basis of a 360-day year consisting of twelve 30-day months up to, but excluding June 1, 2022, and, the amount of interest payable on any Floating Rate Interest Payment Date during the Floating Rate Period will be computed on the basis of a 360-day year and the number of days actually elapsed. In the event that any scheduled Interest Payment Date for the 2027 Notes falls on a day that is not a Business Day, then payment of interest payable on such Interest Payment Date will be paid on the next succeeding day which is a Business Day (any payment made on such date will be treated as being made on the date that the payment was first due and no interest on such payment will accrue for the period from and after such scheduled Interest Payment Date); provided, that in the 

 

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event that any scheduled Floating Rate Interest Payment Date falls on a day that is not a Business Day and the next succeeding Business Day falls in the next succeeding calendar month, such Floating Rate Interest  Payment Date will be accelerated to the immediately preceding Business Day, and, in each such case, the amounts payable on such Business Day will include interest accrued to but excluding such Business Day. Dollar amounts resulting from interest calculations will be rounded to the nearest cent, with one-half cent being rounded upward.

 

(iv)                              The Company agrees that for so long as any of the 2027 Notes are outstanding there will at all times be an agent appointed to calculate Three-Month LIBOR in respect of each Floating Rate Period (the “Calculation Agent”).  The calculation of Three-Month LIBOR for each applicable Floating Rate Period by the Calculation Agent will (in the absence of manifest error) be final and binding. The Calculation Agent shall have all the rights, protections and indemnities afforded to the Trustee under the Base Indenture and hereunder.  The Company hereby appoints Wilmington Trust, National Association, as Calculation Agent for the purposes of determining Three-Month LIBOR for each Floating Interest Period with respect to the 2027 Notes and Wilmington Trust, National Association accepts the appointment.  The Calculation Agent may be removed by the Company at any time. If the Calculation Agent is unable or unwilling to act as Calculation Agent or is removed by the Company, the Company will promptly appoint a replacement Calculation Agent, which does not control or is not controlled by or under common control with the Company or its Affiliates.  The Calculation Agent may not resign its duties without a successor having been duly appointed; provided, that if a successor Calculation Agent has not been appointed by the Company and such successor accepted such position within 30 days after the giving of notice of resignation by the Calculation Agent, the resigning Calculation Agent may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Calculation Agent with respect to the 2027 Notes. The Calculation Agent’s calculation of the amount of any interest payable after the first Reset Rate Determination Date will be maintained on file at the Calculation Agent’s principal offices.

 

(f)                                   Place of Payment of Principal and Interest.  So long as the 2027 Notes shall be issued in global form, the Company shall make, or cause the Paying Agent to make, all payments of principal and interest on the 2027 Notes by wire transfer in immediately available funds to the Depository or its nominee, in accordance with applicable procedures of the Depository.  If the 2027 Notes are not in global form, the Company, may, at its option, make, or cause the Paying Agent to make, payments of principal and interest on the 2027 Notes by check mailed to the address of the person specified for payment in accordance with Section 3.02(e)(i) and (e)(ii) above. A global security with respect to the 2027 Notes shall be exchangeable for physical securities of such series only if:

 

·                  The Depository is at any time unwilling or unable or ineligible to continue as a depository or ceases to be a clearing agency registered under the Exchange Act and a successor depository is not appointed by the Company within 90 days of the date the Company is so notified in writing;

 

·                  The Company executes and delivers to the Trustee a Company Order to the effect that such global securities shall be so exchangeable (and the Trustee consents thereto); or

 

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·                  An Event of Default has occurred and is continuing with respect to the global securities and a Holder requests such exchange.

 

(g)                                  Redemption.  The 2027 Notes shall be redeemable, in each case, in whole or in part from time to time, at the option of the Company prior to the Maturity Date beginning with the Interest Payment Date on June 1, 2022, and on any Interest Payment Date thereafter subject to obtaining the prior approval of the Federal Reserve to the extent such approval is then required under the rules of the Federal Reserve.  The 2027 Notes may not otherwise be redeemed prior to the Maturity Date, except that the Company may, at its option, redeem the 2027 Notes before the Maturity Date in whole but not in part at any time, upon the occurrence of a Tier 2 Capital Event or a Tax Event, or a 1940 Act Event.  Any such redemption will be at a Redemption Price equal to 100% of the principal amount of the 2027 Notes to be redeemed, plus accrued and unpaid interest to, but excluding, the redemption date fixed by the Company.  The provisions of Article III of the Base Indenture shall apply to any redemption of the 2027 Notes pursuant to this Article 3.  Any partial redemption will be made in accordance with The Depository Trust Company’s (“DTC”) applicable procedures among all of the Holders of the 2027 Notes.  If any 2027 Note is to be redeemed in part only, the notice of redemption relating to such 2027 Note shall state that it is a partial redemption and the portion of the principal amount thereof to be redeemed.  The 2027 Notes are not subject to redemption or prepayment at the option of the Holders.

 

(h)                                 Sinking Fund.  There shall be no sinking fund for the 2027 Notes.

 

(i)                                     Denomination.  The 2027 Notes and any beneficial interest in the 2027 Notes shall be in minimum denominations of $1,000 and integral multiples of $1,000 in excess thereof.

 

(j)                                    Currency of the 2027 Notes.  The 2027 Notes shall be denominated, and payment of principal and interest of the 2027 Notes shall be payable in, the currency of the United States of America.

 

(k)                                 Acceleration.  Neither the Trustee nor the Holders of the 2027 Notes shall have the right to accelerate the maturity of the 2027 Notes unless there is an Event of Default specified under clause (e), (f) or (h) of Section 6.1 (as amended herein) of the Base Indenture.  If an Event of Default specified in clause (e), (f) or (h) of Section 6.1 (as amended herein) of the Base Indenture occurs, then the principal amount of all of the outstanding 2027 Notes, including any accrued and unpaid interest on the 2027 Notes and premium, if any, shall automatically become and be immediately due and payable without any declaration or other act on the part of the Trustee or the Holders of the 2027 Notes in accordance with the provisions of Section 6.2 of the Base Indenture.

 

(l)                                     Stated Maturity.  The principal of the 2027 Notes shall be payable on March 30, 2027 subject to acceleration as provided under the Indenture.

 

(m)                             Registered Form.  The 2027 Notes shall be issuable as registered global Securities, and the depository for the 2027 Notes shall be the DTC (the “Depository”) or any successor Depository appointed by the Company within 90 days of the termination of services of 

 

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DTC (or any successor to DTC).  Sections 2.11 and 2.13 of the Base Indenture shall apply to the 2027 Notes.

 

(n)                                 Events of Default.  The Events of Default provided for in Section 6.1 of the Base Indenture shall apply to the 2027 Notes, provided that:

 

(i)                                     the text of clause (b) of Section 6.1 of the Base Indenture shall be substituted with the following:

 

“(b) default in the payment of the principal (or premium, if any) on the 2027 Notes with respect thereto when it becomes due and payable (whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise);”

 

(ii)                                  the text of clause (c) of Section 6.1 of the Base Indenture is deleted and replaced with the word “Reserved”;

 

(iii)                               the text of clause (e) of Section 6.1 of the Base Indenture shall be substituted with the following:

 

“(e) The Company shall consent to the appointment of a Custodian in any bankruptcy, receivership, insolvency, liquidation or similar proceeding with respect to the Company;”

 

(iv)                              the text of clause (f) of Section 6.1 of the Base Indenture shall be substituted with the following:

 

“(f) A court of competent jurisdiction shall enter a decree or order for the appointment of a Custodian in any bankruptcy, receivership, insolvency, liquidation, or similar proceeding relating to the Company, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days;” and

 

(v)                                 a new clause (h), reading in its entirety as follows, shall be inserted:

 

“(h) in the event of an appointment of a Custodian for the Company’s principal banking subsidiary, Heritage Bank of Commerce, and such appointment shall not have been rescinded for a period of 60 consecutive days from the date thereof.”

 

(o)                                 Acceleration of Maturity, Rescission and Annulment. Section 6.2 of the Base Indenture shall apply to the 2027 Notes, except that the section shall be amended as follows:

 

“If an Event of Default with respect to Securities of any Series at the time outstanding occurs and is continuing (other than an Event of Default referred to in Section 6.1(e), 6.1(f) or 6.1(h)), then in every such case the Trustee or the Holders of not less than 25.0% in aggregate principal amount of the outstanding Securities of that Series may declare the principal amount of and accrued and unpaid interest, if any, on all of 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), and upon any such declaration such principal amount

 

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and accrued and unpaid interest, if any, shall become immediately due and payable. If an Event of Default specified in Sections 6.1(e), 6.1(f) or 6.1(h) occurs, the principal amount of all the 2027 Notes, together with accrued and unpaid interest, if any, thereon, shall automatically, and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable. The Maturity of the 2027 Notes shall not otherwise be accelerated as a result of an Event of Default.”

 

(p)                                 Payments to Holders. The first paragraph of Section 12.2 of the Base Indenture shall be substituted with the following and shall apply to the 2027 Notes:

 

“Except as otherwise provided in a supplemental indenture, no payment shall be made with respect to the principal of or interest on the Securities (including, but not limited to, the redemption price with respect to the Securities to be called for redemption in accordance with Article III as provided in the Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 12.5, if (i):

 

(a) a default in the payment of principal, premium, interest, rent or other obligations due on any Senior Indebtedness occurs and is continuing (or, in the case of Senior Indebtedness for which there is a period of grace, in the event of such a default that continues beyond the period of grace, if any, specified in the instrument or lease evidencing such Senior Indebtedness), unless and until such default shall have been cured or waived or shall have ceased to exist; or

 

(b) an event of default or a default, in each case, other than a payment default, on a Designated Senior Indebtedness occurs and is continuing that then permits holders of such Designated Senior Indebtedness (or a trustee or other authorized party on their behalf) to accelerate its maturity and the Trustee receives a notice of the default (a “Payment Blockage Notice”) from a Representative or the Company, and

 

(ii) such default is the subject of judicial proceedings or the Company has received notice of such default from an authorized person under this Indenture.”

 

(q)                                 Ranking.  The 2027 Notes shall rank junior to and shall be subordinated to all Senior Indebtedness of the Company, whether existing as of the date of this First Supplemental Indenture, or hereafter issued or incurred, including all indebtedness relating to money owed to general creditors.  Subject to the terms of the Base Indenture, if the Trustee or any holder of any of the 2027 Notes receives any payment or distribution of the Company’s assets in contravention of the subordination provisions applicable to the 2027 Notes before all Senior Indebtedness is paid in full in cash, property or securities, including by way of set-off or any such payment or distribution that may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the 2027 Notes, then such payment or distribution will be held in trust for the benefit of holders of Senior Indebtedness or their representatives to the extent necessary to make payment in full in cash or payment satisfactory to the holders of Senior Indebtedness of all unpaid Senior Indebtedness.

 

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(r)                                    No Collateral.  The 2027 Notes shall not be entitled to the benefit of any security interest in, or collateralization by, any rights, property or interest of the Company.

 

(s)                                   Additional Terms.  Other terms applicable to the 2027 Notes are as otherwise provided for in the Base Indenture, as supplemented by this First Supplemental Indenture.

 

ARTICLE IV
 SUPPLEMENTAL INDENTURES

 

Section 4.01                             Supplemental Indentures.  The following paragraph shall be added to the end of Section 9.2 of the Base Indenture and shall only apply to the 2027 Notes:

 

“Not in limitation of the foregoing, without the consent of any Holder of 2027 Notes, the Company and the Trustee may amend or supplement the Indenture or the 2027 Notes to conform the terms of the Indenture and the 2027 Notes to the description of the 2027 Notes in the prospectus supplement dated May 23, 2017 relating to the offering of the 2027 Notes.”

 

ARTICLE V
 MISCELLANEOUS

 

Section 5.01                             Trust Indenture Act.  This First Supplemental Indenture is subject to the provisions of the Trust Indenture Act that are required to be part of the Indenture and shall, to the extent applicable, be governed by such provisions.  If any provision of this First Supplemental Indenture limits, qualifies, or conflicts with a provision of the Trust Indenture Act that is required under such act to be a part of and govern this First Supplemental Indenture, the latter provision shall control.

 

Section 5.02                             GOVERNING LAW.  THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS FIRST SUPPLEMENTAL INDENTURE AND THE 2027 NOTES.

 

Section 5.03                             Duplicate Originals.  The parties may sign any number of copies of this First Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.

 

Section 5.04                             Severability.  In case any provision in this First Supplemental Indenture or the 2027 Notes 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 5.05                             Ratification.  The Base Indenture, as supplemented and amended by this First Supplemental Indenture, is in all respects ratified and confirmed.  The Base Indenture and this First Supplemental Indenture shall be read, taken and construed as one and the same instrument. All provisions included in this First Supplemental Indenture supersede any conflicting provisions included in the Base Indenture unless not permitted by law.  The Trustee accepts the trusts created by the Base Indenture, as supplemented by this First Supplemental Indenture, and agrees to perform the same upon the terms and conditions of the Base Indenture, as supplemented by this First Supplemental Indenture.

 

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Section 5.06                             Effectiveness.  The provisions of this First Supplemental Indenture shall become effective as of the date hereof.

 

Section 5.07                             Successors.  All agreements of the Company in this First Supplemental Indenture shall bind its successors.  All agreements of the Trustee in this First Supplemental Indenture shall bind its successors.

 

Section 5.08                             Indenture and Notes Solely Corporate Obligations.  No recourse for the payment of the principal of or interest or any Additional Amounts on any 2027 Note, or for any claim based thereon or otherwise in respect thereof, shall be had against any shareholder, employee, officer or director, as such, past, present or future, of the Company or of any successor Person; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this First Supplemental Indenture and the issue of the 2027 Notes.

 

Section 5.09                             Trustee’s Disclaimer.  The recitals contained herein shall be taken as the statements of the Company and the Trustee assumes no responsibility for their correctness.  The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this First Supplemental Indenture, the 2027 Notes, or for or in respect of the recitals contained herein, all of which recitals are made solely by the Company.

 

Section 5.10                             USA PATRIOT Act.  The parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, are required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account.  The parties to this agreement agree that they shall provide the Trustee with such information as they may request in order to satisfy the requirements of the USA PATRIOT Act.

 

[Remainder of page intentionally left blank.]

 

12











 

IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed as of the date first above written.

 

	
 
    	
HERITAGE COMMERCE CORP
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Lawrence D.   McGovern
    
	
 
    	
 
    	
Name: 
    	
Lawrence D. McGovern
    
	
 
    	
 
    	
Title:
    	
Executive Vice President and Chief Financial   Officer
    


 

[Signature Page to First Supplemental Indenture]

 











 

	
 
    	
WILMINGTON TRUST, NATIONAL
    
	
 
    	
ASSOCIATION,   as Trustee
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   W. Thomas Morris II
    
	
 
    	
Name:   W. Thomas Morris II
    
	
 
    	
Title:   Vice President
    


 

[Signature Page to First Supplemental Indenture]

 











 

EXHIBIT A

 

FORM OF NOTE

 

See attached.

 

A-1











 

THIS SECURITY AND THE OBLIGATIONS OF THE COMPANY (AS DEFINED HEREIN) AS EVIDENCED HEREBY (1) ARE NOT DEPOSITS WITH OR HELD BY THE COMPANY AND ARE NOT INSURED OR GUARANTEED BY ANY FEDERAL AGENCY OR INSTRUMENTALITY, INCLUDING, WITHOUT LIMITATION, THE FEDERAL DEPOSIT INSURANCE CORPORATION, AND (2) ARE SUBORDINATE IN THE RIGHT OF PAYMENT TO THE SENIOR INDEBTEDNESS (AS DEFINED IN THE INDENTURE IDENTIFIED HEREIN).

 

GLOBAL NOTE

 

THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.

 

UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE (I) BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR (II) BY A NOMINEE OF THE DEPOSITARY OR THE DEPOSITARY TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, 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, OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.

 

A-2











 

HERITAGE COMMERCE CORP

 

5.25% Fixed-to-Floating Rate Subordinated Notes due 2027

 

	
No. 1
    	
CUSIP:   426927 AD1
    
	
 
    	
ISIN:   US426927AD10
    


 

$40,000,000

 

Heritage Commerce Corp, a California corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or its registered assigns, the principal sum of $40,000,000 (or such other amount as set forth in the Schedule of Increases or Decreases in Global Note attached hereto) on June 1, 2027 (such date is hereinafter referred to as the “Stated Maturity Date”), unless redeemed prior to such date, and to pay interest thereon (i) from, and including, May 26, 2017, to, but excluding, June 1, 2022, unless redeemed prior to such date, at a rate of 5.25% per annum, semi-annually in arrears on June 1 and December 1 of each year, commencing December 1, 2017 (each such date, a “Fixed Rate Interest Payment Date,” with the period from, and including, May 26, 2017 to, but excluding, the first Fixed Rate Interest Payment Date and each successive period from, and including, a Fixed Rate Interest Payment Date to, but excluding, the next Fixed Rate Interest Payment Date being a “Fixed Rate Period”) and (ii) from, and including, June 1, 2022 to, but excluding, the Stated Maturity Date, unless redeemed subsequent to June 1, 2022 but prior to the Stated Maturity Date, at a rate equal to Three-month LIBOR, reset quarterly, plus 336.5 basis points (3.365%), payable quarterly in arrears on March 1, June 1, September 1 and December 1 of each year through the Stated Maturity Date or earlier redemption date, commencing on September 1, 2022 (each, a “Floating Rate Interest Payment Date,” and together with the Fixed Rate Interest Payment Dates, the “Interest Payment Dates,” with the period from, and including, June 1, 2022 to, but excluding, the first Floating Rate Interest Payment Date and each successive period from, and including a Floating Rate Interest Payment Date to, but excluding, the next Floating Rate Interest Payment Date being a “Floating Rate Period”).  The amount of interest payable on any Fixed Rate Interest Payment Date during the Fixed Rate Period will be computed on the basis of a 360-day year consisting of twelve 30-day months up to, but excluding June 1, 2022, and, the amount of interest payable on any Floating Rate Interest Payment Date during the Floating Rate Period will be computed on the basis of a 360-day year and the number of days actually elapsed. In the event that any scheduled Interest Payment Date for this Note falls on a day that is not a Business Day, then payment of interest payable on such Interest Payment Date will be paid on the next succeeding day which is a Business Day (any payment made on such date will be treated as being made on the date that the payment was first due and no interest on such payment will accrue for the period from and after such scheduled Interest Payment Date); provided, that in the event that any scheduled Floating Rate Interest Payment Date falls on a day that is not a Business Day and the next succeeding Business Day falls in the next succeeding calendar month, such Floating Rate Interest Payment Date will be accelerated to the immediately preceding Business Day, and, in each such case, the amounts payable on such Business Day will include interest accrued to but excluding such Business Day.  All percentages used in or resulting from any calculation of Three-month LIBOR shall be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point, with 0.000005% rounded up to 0.00001%.

 

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Any principal and premium, and any such installment of interest, which is overdue shall bear interest at the applicable rate set forth in the previous paragraph (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand. The interest 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 Note is registered at the close of business on the 15th day of the month (whether or not a Business Day) of such Interest Payment Date.

 

Payment of the principal of and interest on this Note will be made at the office or agency of the Company maintained for that purpose, which shall initially be the Corporate Trust Office of the Trustee, in such currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.

 

Reference is hereby made to the further provisions of this Note 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 Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

[Remainder of this page intentionally left blank. Signature page follows.]

 

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IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by its duly authorized officer.

 

	
 
    	
HERITAGE COMMERCE CORP
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Name: 
    	
Lawrence D. McGovern
    
	
 
    	
 
    	
Title:
    	
Executive Vice President and Chief Financial   Officer
    


 

A-5












 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

This is one of the Notes of the series designated therein referred to in the within-mentioned Indenture.

 

Date of authentication: May 26, 2017

 

	
 
    	
WILMINGTON TRUST, NATIONAL
    
	
 
    	
ASSOCIATION,   as Trustee
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:   W. Thomas Morris II
    
	
 
    	
Title:   Vice President
    


 

A-6











 

REVERSE OF NOTE

 

HERITAGE COMMERCE CORP

 

5.25% Fixed-to-Floating Rate Subordinated Notes due 2027

 

This Note is one of a duly authorized issue of Securities of the Company of a series designated as the “5.25% Fixed-to-Floating Rate Subordinated Notes due 2027” (herein called the “Notes”) initially issued in an aggregate principal amount of $40,000,000 on May 26, 2017.  Such series of Securities has been established pursuant to, and is one of an indefinite number of series of subordinated debt securities of the Company issued or issuable under and pursuant to the Subordinated Indenture, dated as of May 26, 2017 (the “Base Indenture”), between the Company and Wilmington Trust, National Association, as Trustee (herein called the “Trustee,” which term includes any successor trustee), as supplemented and amended by the First Supplemental Indenture between the Company and the Trustee, dated as of May 26, 2017 (the “First Supplemental Indenture,” and the Base Indenture as supplemented and amended by the First Supplemental Indenture, the “Indenture”), to which Indenture and any other indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Persons in whose names Notes are registered from time to time and of the terms upon which the Notes are, and are to be, authenticated and delivered.  The terms, conditions and provisions of the Notes are those stated in the Indenture, those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and those set forth in this Note.  To the extent that the terms, conditions and provisions of this Note modify, supplement or are inconsistent with those of the Indenture, then the terms, conditions and other provisions of this Note shall govern to the extent that such terms, conditions and other provisions of this Note are not inconsistent with the terms, conditions and provisions made part of the Indenture by reference to the Trust Indenture Act.

 

All capitalized terms used in this Note and not defined herein that are defined in the Indenture shall have the meanings assigned to them in the Indenture.  To the extent that any capitalized term used in this Note and defined herein is also defined in the Indenture but conflicts with the definition provided in the Indenture, the definition of the capitalized term in this Note shall control.

 

The indebtedness of the Company evidenced by the Notes, including the principal thereof, premium, if any, Additional Amounts, if any, and interest thereon, is, to the extent and in the manner set forth in the Indenture, subordinate and subject in right of payment to the prior payment in full of all Senior Indebtedness, whether outstanding at the date hereof or hereafter incurred, and on the terms and subject to the terms and conditions set forth in the Indenture, and shall rank pari passu in right of payment with all other Securities and with all other unsecured subordinated indebtedness of the Company that is not by its terms subordinate and subject in right of payment to the prior payment in full of debentures, notes, bonds or other evidences of indebtedness of types that include the Notes.  Each Holder of this Note, by the acceptance hereof, agrees to and shall be bound by such provisions of the Indenture and authorizes and directs the Trustee on his behalf to take such actions as may be necessary or appropriate to effectuate the subordination so provided.

 

A-7











 

The Notes are intended to be treated as Tier 2 capital (or its then-equivalent if the Company were subject to such capital requirement) for purposes of capital adequacy requirements of the Board of Governors of the Federal Reserve System (or any successor regulatory authority with jurisdiction over bank holding companies) (the “Federal Reserve Board”) as then in effect and applicable to the Company.  If an Event of Default with respect to Notes shall occur and be continuing, the principal and interest owed on the Notes shall only become due and payable in accordance with the terms and conditions set forth in Article VI of the Base Indenture (as amended by the First Supplemental Indenture) and Section 3.02(k) and (o) of the First Supplemental Indenture.  Accordingly, the Holder of this Note has no right to accelerate the maturity of this Note in the event that the Company fails to pay interest on any of the Notes, or fails to perform any other obligations under the Notes or in the Indenture that are applicable to the Notes.

 

The Company may, at its option, redeem the Notes, in whole or in part from time to time, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest (the “Redemption Price”) to but excluding, the date of redemption (the “Redemption Date”), on any Interest Payment Date on or after June 1, 2022.  The Company may also, at its option, redeem the Notes before the Stated Maturity Date, in whole, but not in part, at any time, upon the occurrence of a Tier 2 Capital Event, a Tax Event or a 1940 Act Event.  Any such redemption will be at a redemption price equal to the Redemption Price to, but excluding, the Redemption Date fixed by the Company.  No redemption of the Notes by the Company prior to the Stated Maturity Date shall be made without the prior approval of the Federal Reserve Board if such prior approval is or will be required at the scheduled Redemption Date.  The provisions of Article III of the Base Indenture and Section 3.02(g) of the First Supplemental Indenture shall apply to the redemption of any Notes by the Company.

 

The Notes are not entitled to the benefit of any sinking fund.  The Notes are not convertible into or exchangeable for any other securities or property of the Company or any Subsidiary of the Company.

 

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Notes at any time by the Company and the Trustee with the consent of the Holders of at least a majority in aggregate principal amount of the Outstanding Notes.  The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Notes at the time Outstanding, on behalf of the Holders of all Notes, to waive certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.

 

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note is registrable in the Register described in Section 2.7 of the Base Indenture, upon surrender of this Note for registration of transfer at the office or agency of the Company in any place where the principal of and interest on this Note are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the 

 

A-8











 

Registrar duly executed by the Holder hereof or his attorney duly authorized in writing, and  thereupon one or more new Notes, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

 

The Notes are issuable only in registered form without coupons in minimum denominations of $1,000 and any integral multiples of $1,000 in excess thereof.

 

The Company and the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note is overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.

 

This Security is a global note, represented by a permanent global certificate registered in the name of the nominee of The Depository Trust Company (each a “Global Note” and collectively, the “Global Notes”).  Accordingly, unless and until it is exchanged for individual certificates, this Note may not be transferred except as a whole by The Depository Trust Company (the “Depositary”) to a nominee of such Depositary or by a nominee of such Depositary or by the Depositary or any nominee to a successor Depositary or any nominee of such successor.  Ownership of beneficial interests in this Security will be shown on, and the transfer of that ownership will be effected only through, records maintained by the applicable Depositary or its nominee (with respect to interest of persons that have accounts with the Depositary (“Participants”)) and the records of Participants (with respect to interests of persons other than Participants).  Beneficial interests in Notes owned by persons that hold through Participants will be evidenced only by, and transfers of such beneficial interests with such Participants will be effected only through, records maintained by such Participants. Except as provided below, owners of beneficial interests in this Note will not be entitled to have any individual certificates and will not be considered the owners or Holders thereof under the Indenture.

 

Except in the limited circumstances set forth in the Indenture, Participants and owners of beneficial interests in the Global Notes will not be entitled to receive Notes in the form of Individual Securities and will not be considered Holders of Notes.  None of the Company, the Trustee, the Registrar, the Paying Agent or any of their respective agents will be liable for any delay by the Depositary, its nominee or any direct or indirect Participant in identifying the beneficial owners of the related Notes.  The Company, the Trustee, the Registrar, the Paying Agent and each of their respective agents may conclusively rely on, and will be protected in relying on, instructions from the Depositary or its nominee for all purposes, including with respect to the registration and delivery, and the respective principal amounts, of the Notes to be issued.

 

Except as provided in Section 2.14 of the Base Indenture, beneficial owners of Global Notes will not be entitled to receive physical delivery of Notes in the form of Individual Securities, and no Global Note will be exchangeable except for another Global Note of like denomination and tenor to be registered in the name of the Depositary or its nominee. Accordingly, each person owning a beneficial interest in a Global Note must rely on the procedures of the Depositary and, if such person is not a Participant, on the 

 

A-9











 

procedures of the Participant through which such person owns its interest, to exercise any rights of a Holder under the Notes.

 

The laws of some jurisdictions may require that certain purchasers of securities take physical delivery of those securities in definitive form.  Accordingly, the ability to transfer interests in the Notes represented by a Global Note to those persons may be limited.  In addition, because the Depositary can act only on behalf of its Participants, who in turn act on behalf of persons who hold interests through Participants, the ability of a person having an interest in Notes represented by a Global Note to pledge or transfer such interest to persons or entities that do not participate in the Depositary’s system, or otherwise to take actions in respect of such interest, may be affected by the lack of a physical definitive security in respect of such interest.  None of the Company, the Trustee, the Paying Agent and the Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of Notes by the Depositary, or for maintaining, supervising or reviewing any records of the Depositary relating to the Notes.

 

The Trustee will act as the Company’s Paying Agent with respect to the Notes through its Corporate Trust Office presently located at 1100 North Market Street, Wilmington, Delaware 19890.  The Company may at any time rescind the designation of a Paying Agent, appoint a successor Paying Agent, or approve a change in the office through which any Paying Agent acts.

 

Notices to the Holders of registered Notes in the form of Individual Securities will be given to such Holders at their respective addresses in the Register, or in the case of Global Notes, electronic delivery in accordance with DTC’s applicable procedures.  The Indenture contains provisions setting forth certain conditions to the institution of proceedings by the Holders of Notes with respect to the Indenture or for any remedy under the Indenture.

 

THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER, AND SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.

 

A-10











 

ASSIGNMENT FORM

 

To assign the within Security, fill in the form below: I or we assign and transfer the within Security to:

 

	
 
    	
 
    	
 
    
	
 
    	
(Insert   assignee’s legal name)
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
(Insert   assignee’s social security or tax I.D. number)
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
(Print   or type assignee’s name, address and zip code)
    	
 
    


 

and irrevocably appoint the Trustee as agent to transfer this Security on the books of Heritage Financial Corp.  The agent may substitute another to act for it.

 

	
Your Signature:
    	
 
    
	
 
    	
 
    
	
(Sign exactly as your   name appears on the other side of this Security)
    
	
 
    	
 
    
	
Your   Name:
    	
 
    
	
 
    	
 
    
	
Date:
    	
 
    
	
 
    	
 
    
	
Signature   Guarantee:
    	
 
    


 

SIGNATURE GUARANTEE

 

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

A-10











 

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE

 

The initial principal amount of this Global Note is $40,000,000.  The following increases or decreases in the principal amount of this Global Note have been made:

 

	
Date
    	
 
    	
Amount of
   decrease in
   principal
   amount of this
   Global Note
    	
 
    	
Amount of
   increase in
   principal
   amount of the
   Global Note
    	
 
    	
Principal
   amount of this
   Global Note
   following such
   decrease or
   increase
    	
 
    	
Signature of
   authorized
   signatory of
   Trustee
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    


 

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