Temecula Valley Bancorp Inc. Fixed Rate Junior Subordinated Note due 20__
EXHIBIT
4.2
Fixed
Rate Junior Subordinated Note due 20__
No.
_____________ $__________
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAW. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAWS. THE HOLDER OF THIS SECURITY BY
ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY
ONLY
(A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A IN ACCORDANCE WITH RULE 144A, (D) TO A NON-U.S. PERSON
IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 (AS APPLICABLE)
OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED
INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (A) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR
THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE, A COPY OF
WHICH
MAY BE OBTAINED FROM THE COMPANY.
THE
HOLDER OF THIS SECURITY, OR ANY INTEREST THEREIN, BY ITS ACCEPTANCE HEREOF
OR
THEREOF AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT
PLAN,
INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE
I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE “CODE”) (EACH A “PLAN”), OR AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT IN
THE ENTITY, AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR
HOLD THIS SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER
IS
ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR
ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY,
OR
ANY INTEREST THEREIN, ARE NOT PROHIBITED BY SECTION 406 OF ERISA OR SECTION
4975
OF THE CODE WITH RESPECT TO SUCH PURCHASE AND HOLDING. ANY PURCHASER OR HOLDER
OF THE SECURITIES OR ANY
INTEREST
THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF
THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN TO WHICH TITLE
I OF ERISA OR SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON
ACTING ON BEHALF OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON
OR ENTITY USING THE “PLAN ASSETS” OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN TO
FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE OR HOLDING WILL NOT RESULT IN
A
PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE
FOR WHICH FULL EXEMPTIVE RELIEF IS NOT AVAILABLE UNDER AN APPLICABLE STATUTORY
OR ADMINISTRATIVE EXEMPTION.
THIS
OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED STATES OR ANY
AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCE
CORPORATION.
Temecula
Valley Bancorp Inc., a corporation organized and existing under the laws of
California (hereinafter called the “Company,” which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to Wilmington Trust Company, not in its
individual capacity but solely as Trustee for Temecula Valley Statutory Trust
VI
(the “Holder”), or registered assigns, the principal sum of $__________or such
other principal amount represented hereby as may be set forth in the records
of
the Securities Registrar hereinafter referred to in accordance with the
Indenture on ________ __, 203__. The Company further promises to pay interest
on
said principal sum from ____________ __, 2007, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, quarterly
(subject to deferral as set forth herein) in arrears on March 30th, June 30th,
September 30th and December
30th of each
year, commencing on June 30, 2008, or if any such day is not a Business Day,
on
the next succeeding Business Day (and no interest shall accrue in respect of
the
amounts whose payment is so delayed for the period from and after such Interest
Payment Date until such next succeeding Business Day), except that, if such
Business Day falls in the next succeeding calendar year, such payment shall
be
made on the immediately preceding Business Day, in each case, with the same
force and effect as if made on the Interest Payment Date, together with
Additional Tax Sums, if any, as provided in Section 10.5 of the
Indenture, until the principal hereof is paid or duly provided for or made
available for payment; provided, that any overdue principal, premium,
if any, or Additional Tax Sums and any overdue installment of interest shall
bear interest at the Increased Interest rate (to the extent that the payment
of
such interest shall be legally enforceable) until they are paid or made
available for payment, and such interest shall be payable on
demand.
The
amount of interest payable for any interest period shall be computed and paid
on
the basis of a 360-day year and the actual number of days elapsed in the
relevant interest period. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date shall, 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. Any such interest 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 not less
than ten (10) 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 or automated quotation system on which the Securities may be listed,
traded or quoted and upon such notice as may be required by such exchange or
automated quotation system, all as more fully provided in the
Indenture.
So
long
as no Event of Default pursuant to Sections 5.1(c), (e),
(f), (g) or (h) of the Indenture has occurred and
is
continuing, the Company shall have the right, at any time and from time to
time
during the term of this Security, to defer the payment of interest on this
Security for a period of up to twenty (20) consecutive quarterly interest
payment periods (each such period, an “Extension Period”), during which
Extension Period(s), no interest shall be due and payable (except any Additional
Tax Sums that may be due and payable). No Extension Period shall end on a date
other than an Interest Payment Date, and no Extension Period shall extend beyond
the Stated Maturity of the principal of this Security. No interest shall be
due
and payable during an Extension Period (except any Additional Tax Sums that
may
be due and payable), except at the end thereof, but each installment of interest
that would otherwise have been due and payable during such Extension Period
shall bear Increased Interest (to the extent payment of such interest would
be
legally enforceable) from the dates on which amounts would have otherwise been
due and payable until paid or made available for payment. At the end of any
such
Extension Period, the Company shall pay all interest then accrued and unpaid
on
this Security, together with such Increased Interest. Prior to the
termination of any such Extension Period, the Company may further defer the
payment of interest; provided, that (i) all such previous and further
extensions comprising such Extension Period do not exceed twenty (20) quarterly
interest payment periods, (ii) no Extension Period shall end on a date other
than an Interest Payment Date and (iii) no Extension Period shall extend beyond
the Stated Maturity of the principal of this Security. Upon the termination
of
any such Extension Period and upon the payment of all accrued and unpaid
interest and any Increased Interest then due on any Interest Payment Date,
the
Company may elect to begin a new Extension Period; provided, that (i)
such Extension Period does not exceed twenty (20) quarterly interest payment
periods, (ii) no Extension Period shall end on a date other than an Interest
Payment Date, (iii) no Extension Period shall extend beyond the Stated Maturity
of the principal of this Security and (iv) no Event of Default pursuant to
Sections 5.1(c), (e), (f), (g) or (h) has
occurred and is continuing. The Company shall give (i) the Holder of this
Security, (ii) the Trustee, (iii) the Property Trustee and (iv) any beneficial
owner of the Preferred Securities reasonably identified to the Company (which
identification may be made by such beneficial owner) written notice of its
election to begin any such Extension Period no later than the close of business
on the fifteenth (15th) Business
Day
prior to the next succeeding Interest Payment Date on which interest on this
Security would be payable but for such deferral.
During
any such Extension Period, the Company shall not (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 Equity Interests, (ii)
vote in favor of or permit or otherwise allow any of its Subsidiaries to declare
or pay any dividends or distributions on, or redeem, purchase, acquire or make
a
liquidation payment with respect to or otherwise retire, any of such
Subsidiary’s Equity Interests entitling the holders thereof to a stated rate of
return, other than dividends or distributions on Equity Interests issued by
any
Subsidiary solely payable to the Company or any Subsidiary thereof (for the
avoidance of doubt, whether such Equity Interests are perpetual or otherwise),
or (iii) make any payment of principal of or any interest or premium on or
repay, repurchase or redeem any debt securities of the Company that rank
pari passu in all respects with or junior in interest to this Security
(other than (a) repurchases, redemptions or other acquisitions of Equity
Interests of the Company in connection with (1) any employment contract, benefit
plan or other similar arrangement with or for the benefit of any one or more
employees, officers, directors or consultants, (2) a dividend reinvestment
or
stockholder stock purchase or similar plan with respect to any Equity Interests
or (3) the issuance of Equity Interests of the Company (or securities
convertible into or exercisable for such Equity Interests) as consideration
in
an acquisition transaction entered into prior to the applicable Extension
Period, (b) as a result of an exchange or conversion of any class or series
of
the Company’s Equity Interests (or any Equity Interests of a Subsidiary of the
Company) for any class or series of the Company’s Equity Interests or of any
class or series of the Company’s indebtedness for any class or series of the
Company’s Equity Interests, (c) the purchase of fractional interests in Equity
Interests of the Company pursuant to the conversion or exchange provisions
of
such Equity Interests or the security being converted or exchanged, (d) any
declaration of a dividend in connection with any
Rights
Plan, the issuance of rights, Equity Interests or other property under any
Rights Plan, or the redemption or repurchase of rights pursuant thereto, (e)
any
dividend in the form of Equity Interests, warrants, options or other rights
where the dividend Equity Interests or the Equity Interests issuable upon
exercise of such warrants, options or other rights are the same Equity Interests
as those on which the dividend is being paid or rank pari passu with or
junior to such Equity Interests, or (f) if the failure to do so would cause
an
event of default.
Payment
of principal of, premium, if any, and interest on this Security shall be made
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. Payments of principal,
premium, if any, and interest due at the Maturity of this Security shall be
made
at the office or agency of the Company maintained for that purpose in the Place
of Payment upon surrender of such Securities to the Paying Agent, and payments
of interest shall be made, subject to such surrender where applicable, by wire
transfer at such place and to such account at a banking institution in the
United States as may be designated in writing to the Paying Agent at least
ten
(10) Business Days prior to the date for payment by the Person entitled thereto
unless proper written wire transfer instructions have not been received by
the
relevant record date, in which case such payments shall be made by check mailed
to the address of such Person as such address shall appear in the Security
Register. Notwithstanding the foregoing, so long as the Holder of
this Security is the Property Trustee, the payment of the principal of (and
premium, if any) and interest (including any overdue installment of interest
and
Additional Tax Sums, if any) on this Security will be made at such place and
to
such account as may be designated by the Property Trustee.
The
indebtedness evidenced by this Security is, to the extent provided in the
Indenture, subordinate and junior in right of payment 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 or her behalf to take such actions
as
may be necessary or appropriate to effectuate the subordination so provided
and
(c) appoints the Trustee his or her attorney-in-fact for any and all such
purposes. Each Holder hereof, by his or her 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.
Unless
the certificate of authentication hereon has been executed by the Trustee by
manual signature, this Security shall not be entitled to any benefit under
the
Indenture or be valid or obligatory for any purpose.
This
Security is one of a duly authorized issue of securities of the Company (the
“Securities”) issued under the Junior Subordinated Indenture, dated as
of ____________ __, 2007 (the “Indenture”), between the Company and
Wilmington Trust Company, as Trustee (in such capacity, 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 Company, the Trustee, the holders of Senior Debt and the
Holders of the Securities, and of the terms upon which the Securities are,
and
are to be, authenticated and delivered.
All
terms
used in this Security that are defined in the Indenture or in the Amended and
Restated Trust Agreement, dated as of ____________ __, 2007 (as modified,
amended or supplemented from time to time, the “Trust Agreement”),
relating to Temecula Valley Statutory Trust VI (the “Trust”), among the
Company, as Depositor, the trustees named therein and the holders from time
to
time of the Trust
Securities
issued pursuant thereto, shall have the meanings assigned to them in the
Indenture or the Trust Agreement, as the case may be.
The
Company may, on any Interest Payment Date, at its option, upon not less than
thirty (30) days’ nor more than sixty (60) days’ written notice to the Holders
of the Securities (unless a shorter notice period shall be satisfactory to
the
Trustee) on or after December 30, 2012 and subject to the terms and conditions
of Article XI of the Indenture, redeem this Security in whole at any time
or in part from time to time at a Redemption Price equal to one hundred percent
(100%) of the principal amount hereof, together, in the case of any such
redemption, with accrued interest, including any Increased Interest, to but
excluding the date fixed for redemption; provided, that the Company
shall have received the prior approval of the Federal Reserve if then
required.
In
addition, upon the occurrence and during the continuation of a Special Event,
the Company may, at its option, upon not less than thirty (30) days’ nor more
than sixty (60) days’ written notice to the Holders of the Securities (unless a
shorter notice period shall be satisfactory to the Trustee), redeem this
Security, in whole but not in part, subject to the terms and conditions of
Article XI of the Indenture at the Special Event Redemption Price;
provided, that the Company shall have received the prior approval
of
the Federal Reserve if then required.
In
the
event of redemption of this Security in part only, a new Security or Securities
for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof. If less than all the Securities are to
be
redeemed, the particular Securities to be redeemed shall be selected not more
than sixty (60) days prior to the Redemption Date by the Trustee from the
Outstanding Securities 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.
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. The
Indenture also contains provisions permitting Holders of specified percentages
in principal amount of the Securities, on behalf of the Holders of all
Securities, 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.
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 any premium and interest,
including any Increased 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 for such purpose, duly endorsed by, or accompanied
by
a written instrument of transfer in form satisfactory to the Company and the
Securities Registrar and duly executed by, the Holder hereof or such Holder’s
attorney duly authorized in writing, and thereupon one or more new Securities,
of like tenor, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The
Securities are issuable only in registered form without coupons in minimum
denominations of $__________ and any integral multiple of $______ in excess
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities are exchangeable for a like aggregate principal amount
of
Securities and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No
service charge shall be made for any such registration of transfer or exchange,
but the Company and the Trustee may require payment of a sum sufficient to
cover
any tax or other governmental charge payable in connection
therewith.
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
Company and, by its acceptance of this Security or a beneficial interest herein,
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,
it
is intended that this Security constitute indebtedness.
This
Security shall be construed and enforced in accordance with and governed by
the
laws of the State of Delaware, without reference to its conflict of laws
provisions.
IN
WITNESS WHEREOF, the Company has duly executed this certificate this ____ day
of
____________, 2007.
By:
Name:
Title:
CERTIFICATE
OF AUTHENTICATION
This
represents Securities referred to in the within-mentioned
Indenture.
Dated:
WILMINGTON
TRUST COMPANY, not in its individual capacity but solelyas
Trustee
By:
Authorized
Officer
