Exhibit 4.3


 




 





 


AMENDED AND RESTATED DECLARATION


OF TRUST


 


by and among


 


WILMINGTON TRUST COMPANY,


as Delaware Trustee,


 


WILMINGTON TRUST COMPANY,


as Institutional Trustee,


 


FIRST REGIONAL BANCORP,


 


as Sponsor,


 


and


 


JACK A. SWEENEY,
H. ANTHONY GARTSHORE and


THOMAS MCCULLOUGH,


as Administrators,


 


Dated as of March 30, 2006


 




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I
  INTERPRETATION AND DEFINITIONS

  	
  1

  	
   

  
	
  Section 1.1.

  	
  Definitions

  	
  1

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II ORGANIZATION

  	
  8

  	
   

  
	
  Section 2.1.

  	
  Name

  	
  8

  	
   

  
	
  Section 2.2.

  	
  Office

  	
  8

  	
   

  
	
  Section 2.3.

  	
  Purpose

  	
  8

  	
   

  
	
  Section 2.4.

  	
  Authority

  	
  8

  	
   

  
	
  Section 2.5.

  	
  Title to Property of
  the Trust

  	
  9

  	
   

  
	
  Section 2.6.

  	
  Powers and Duties of
  the Trustees and the Administrators

  	
  9

  	
   

  
	
  Section 2.7.

  	
  Prohibition of Actions
  by the Trust and the Institutional Trustee

  	
  12

  	
   

  
	
  Section 2.8.

  	
  Powers and Duties of
  the Institutional Trustee

  	
  13

  	
   

  
	
  Section 2.9.

  	
  Certain Duties and
  Responsibilities of the Trustees and Administrators

  	
  14

  	
   

  
	
  Section 2.10.

  	
  Certain Rights of
  Institutional Trustee

  	
  15

  	
   

  
	
  Section 2.11.

  	
  Delaware Trustee

  	
  17

  	
   

  
	
  Section 2.12.

  	
  Execution of Documents

  	
  17

  	
   

  
	
  Section 2.13.

  	
  Not Responsible for
  Recitals or Issuance of Securities

  	
  17

  	
   

  
	
  Section 2.14.

  	
  Duration of Trust

  	
  18

  	
   

  
	
  Section 2.15.

  	
  Mergers

  	
  18

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III SPONSOR

  	
  19

  	
   

  
	
  Section 3.1.

  	
  Sponsor’s Purchase of
  Common Securities

  	
  19

  	
   

  
	
  Section 3.2.

  	
  Responsibilities of the
  Sponsor

  	
  19

  	
   

  
	
  Section 3.3.

  	
  Expenses

  	
  19

  	
   

  
	
  Section 3.4.

  	
  Right to Proceed

  	
  20

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV
  INSTITUTIONAL TRUSTEE AND ADMINISTRATORS

  	
  20

  	
   

  
	
  Section 4.1.

  	
  Number of Trustees

  	
  20

  	
   

  
	
  Section 4.2.

  	
  Delaware Trustee; Eligibility

  	
  20

  	
   

  
	
  Section 4.3.

  	
  Institutional Trustee;
  Eligibility

  	
  21

  	
   

  
	
  Section 4.4.

  	
  Administrators

  	
  21

  	
   

  
	
  Section 4.5.

  	
  Appointment, Removal
  and Resignation of Trustees and Administrators

  	
  21

  	
   

  
	
  Section 4.6.

  	
  Vacancies Among
  Trustees

  	
  23

  	
   

  
	
  Section 4.7.

  	
  Effect of Vacancies

  	
  23

  	
   

  
	
  Section 4.8.

  	
  Meetings of the
  Trustees and the Administrators

  	
  23

  	
   

  
	
  Section 4.9.

  	
  Delegation of Power

  	
  24

  	
   

  
	
  Section 4.10.

  	
  Conversion,
  Consolidation or Succession to Business

  	
  24

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V DISTRIBUTIONS

  	
  24

  	
   

  
	
  Section 5.1.

  	
  Distributions

  	
  24

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI ISSUANCE OF
  SECURITIES

  	
  24

  	
   

  
	
  Section 6.1.

  	
  General Provisions
  Regarding Securities

  	
  24

  	
   

  
	
  Section 6.2.

  	
  Paying Agent, Transfer
  Agent and Registrar

  	
  25

  	
   

  
	
  Section 6.3.

  	
  Form and Dating

  	
  25

  	
   

  
	
  Section 6.4.

  	
  Book-Entry Capital
  Securities

  	
  26

  	
   

  
	
  Section 6.5.

  	
  Mutilated, Destroyed,
  Lost or Stolen Certificates

  	
  28

  	
   

  



 


i

















 


	
  Section 6.6.

  	
  Temporary Securities

  	
  28

  	
   

  
	
  Section 6.7.

  	
  Cancellation

  	
  28

  	
   

  
	
  Section 6.8.

  	
  CUSIP Numbers

  	
  28

  	
   

  
	
  Section 6.9.

  	
  Rights of Holders;
  Waivers of Past Defaults

  	
  28

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII DISSOLUTION
  AND TERMINATION OF TRUST

  	
  30

  	
   

  
	
  Section 7.1.

  	
  Dissolution and
  Termination of Trust

  	
  30

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII TRANSFER
  OF INTERESTS

  	
  31

  	
   

  
	
  Section 8.1.

  	
  General

  	
  31

  	
   

  
	
  Section 8.2.

  	
  Transfer Procedures and
  Restrictions

  	
  32

  	
   

  
	
  Section 8.3.

  	
  Deemed Security Holders

  	
  34

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX LIMITATION
  OF LIABILITY OF HOLDERS OF SECURITIES, INSTITUTIONAL TRUSTEE OR OTHERS

  	
  34

  	
   

  
	
  Section 9.1.

  	
  Liability

  	
  34

  	
   

  
	
  Section 9.2.

  	
  Exculpation

  	
  35

  	
   

  
	
  Section 9.3.

  	
  Fiduciary Duty

  	
  35

  	
   

  
	
  Section 9.4.

  	
  Indemnification

  	
  35

  	
   

  
	
  Section 9.5.

  	
  Outside Businesses

  	
  37

  	
   

  
	
  Section 9.6.

  	
  Compensation; Fee

  	
  38

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X ACCOUNTING

  	
  38

  	
   

  
	
  Section 10.1.

  	
  Fiscal Year

  	
  38

  	
   

  
	
  Section 10.2.

  	
  Certain Accounting
  Matters

  	
  38

  	
   

  
	
  Section 10.3.

  	
  Banking

  	
  39

  	
   

  
	
  Section 10.4.

  	
  Withholding

  	
  39

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI AMENDMENTS
  AND MEETINGS

  	
  39

  	
   

  
	
  Section 11.1.

  	
  Amendments

  	
  39

  	
   

  
	
  Section 11.2.

  	
  Meetings of the Holders
  of Securities; Action by Written Consent

  	
  41

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII
  REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND THE DELAWARE TRUSTEE

  	
  42

  	
   

  
	
  Section 12.1.

  	
  Representations and
  Warranties of Institutional Trustee

  	
  42

  	
   

  
	
  Section 12.2.

  	
  Representations of the
  Delaware Trustee

  	
  42

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIII
  MISCELLANEOUS

  	
  43

  	
   

  
	
  Section 13.1.

  	
  Notices

  	
  43

  	
   

  
	
  Section 13.2.

  	
  Governing Law

  	
  44

  	
   

  
	
  Section 13.3.

  	
  Intention of the
  Parties

  	
  44

  	
   

  
	
  Section 13.4.

  	
  Headings

  	
  44

  	
   

  
	
  Section 13.5.

  	
  Successors and Assigns

  	
  44

  	
   

  
	
  Section 13.6.

  	
  Partial Enforceability

  	
  45

  	
   

  
	
  Section 13.7.

  	
  Counterparts

  	
  45

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Annex I

  	
  Terms of Securities

  	
   

  	
   

  
	
  Exhibit A-1

  	
  Form of Capital
  Security Certificate

  	
   

  	
   

  
	
  Exhibit A-2

  	
  Form of Common Security
  Certificate

  	
   

  	
   

  
	
  Exhibit B

  	
  Specimen of Initial
  Debenture

  	
   

  	
   

  
	
  Exhibit C

  	
  Placement Agreement

  	
   

  	
   

  



 


ii

















 


AMENDED AND RESTATED


 


DECLARATION OF TRUST


 


OF


 


FIRST REGIONAL STATUTORY
TRUST VI


 


March 30, 2006


 


AMENDED AND RESTATED DECLARATION OF TRUST (“Declaration”) dated
and effective as of March 30, 2006, by the Trustees (as defined herein),
the Administrators (as defined herein), the Sponsor (as defined herein) and by
the holders, from time to time, of undivided beneficial interests in the Trust
(as defined herein) to be issued pursuant to this Declaration;


 


WHEREAS, the Trustees, the Administrators and the Sponsor established First
Regional Statutory Trust VI (the “Trust”), a statutory trust under
the Statutory Trust Act (as defined herein) pursuant to a Declaration of Trust
dated as of March 15, 2006 (the “Original Declaration”), and a
Certificate of Trust filed with the Secretary of State of the State of Delaware
on March 15, 2006, for the sole purpose of issuing and selling certain
securities representing undivided beneficial interests in the assets of the
Trust and investing the proceeds thereof in certain debentures of the Debenture
Issuer (as defined herein);


 


WHEREAS, as of the date hereof, no interests in the Trust have been
issued; and


 


WHEREAS, the Trustees, the Administrators and the Sponsor, by this
Declaration, amend and restate each and every term and provision of the
Original Declaration;


 


NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a statutory trust under the Statutory Trust Act and that
this Declaration constitutes the governing instrument of such statutory trust,
the Trustees declare that all assets contributed to the Trust will be held in
trust for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.  The parties hereto hereby agree as follows:


 


ARTICLE
I


 


INTERPRETATION
AND DEFINITIONS


 


Section
1.1.           Definitions.


 


Unless the context otherwise requires:


 


(a)           Capitalized terms
used in this Declaration but not defined in the preamble above have the
respective meanings assigned to them in this Section 1.1;


 


(b)           a term defined
anywhere in this Declaration has the same meaning throughout;


 


(c)           all references to “the
Declaration” or “this Declaration” are to this Declaration as modified,
supplemented or amended from time to time;


 


1

















 


(d)           all references in
this Declaration to Articles and Sections and Annexes and Exhibits are to
Articles and Sections of and Annexes and Exhibits to this Declaration unless
otherwise specified; and


 


(e)           a reference to the
singular includes the plural and vice versa.


 


“Acceleration Event of Default” has the meaning set forth in the
Indenture.


 


“Additional Interest” has the meaning set forth in the
Indenture.


 


“Administrative Action” has the meaning set forth in
paragraph 4(a) of Annex I.


 


“Administrators” means each of Jack A. Sweeney,
H. Anthony Gartshore and Thomas McCullough, solely in such Person’s
capacity as Administrator of the Trust created and continued hereunder and not
in such Person’s individual capacity, or such Administrator’s successor in
interest in such capacity, or any successor appointed as herein provided.


 


“Affiliate” has the same meaning as given to that term in
Rule 405 of the Securities Act or any successor rule thereunder.


 


“Applicable Depositary Procedures” means, with respect to any
transfer or transaction involving a Book-Entry Capital Security, the rules and
procedures of the Depositary for such Book-Entry Capital Security, in each case
to the extent applicable to such transaction and as in effect from time to time.


 


“Authorized Officer” of a Person means any Person that is
authorized to bind such Person.


 


“Bankruptcy Event” means, with respect to any Person:


 


(a)           a court having
jurisdiction in the premises shall enter a decree or order for relief in
respect of such Person in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its property, or
ordering the winding-up or liquidation of its affairs and such decree or order
shall remain unstayed and in effect for a period of 90 consecutive days;
or


 


(b)           such Person shall
commence a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, shall consent to the entry of an order
for relief in an involuntary case under any such law, or shall consent to the
appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator (or other similar official) of such Person of
any substantial part of its property, or shall make any general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they
become due.


 


“Book-Entry Capital Securities” means a Capital Security, the
ownership and transfer of which shall be made through book entries by a
Depositary.


 


“Business Day” means any day other than Saturday, Sunday or any
other day on which banking institutions in New York City or Wilmington,
Delaware are permitted or required by any applicable law or executive order to
close.


 


“Capital Securities” has the meaning set forth in paragraph 1(a)
of Annex I.


 


“Capital Security Certificate” means a definitive Certificate in
fully registered form representing a Capital Security substantially in the form
of Exhibit A-1.


 


2

















 


“Capital Treatment Event” has the meaning set forth in
paragraph 4(a) of Annex I.


 


“Certificate” means any certificate evidencing Securities.


 


“Closing Date” has the meaning set forth in the Placement
Agreement.


 


“Code” means the Internal Revenue Code of 1986, as amended from
time to time, or any successor legislation.


 


“Common Securities” has the meaning set forth in paragraph 1(b)
of Annex I.


 


“Common Security Certificate” means a definitive Certificate in
fully registered form representing a Common Security substantially in the form
of Exhibit A-2.


 


“Company Indemnified Person” means (a) any Administrator;
(b) any Affiliate of any Administrator; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Administrator; or (d) any officer, employee or agent of the Trust or its
Affiliates.


 


“Corporate Trust Office” means the office of the Institutional
Trustee at which the corporate trust business of the Institutional Trustee
shall, at any particular time, be principally administered, which office at the
date of execution of this Declaration is located at Rodney Square North, 1100
North Market Street, Wilmington, Delaware 
19890-1600, Attn: Corporate Trust Administration.


 


“Coupon Rate” has the meaning set forth in paragraph 2(a)
of Annex I.


 


“Covered Person” means: 
(a) any Administrator, officer, director, shareholder, partner,
member, representative, employee or agent of (i) the Trust or
(ii) any of the Trust’s Affiliates; and (b) any Holder of Securities.


 


“Creditor” has the meaning set forth in Section 3.3.


 


“Debenture Issuer” means First Regional Bancorp, a California
corporation, in its capacity as issuer of the Debentures under the Indenture.


 


“Debenture Trustee” means Wilmington Trust Company, as trustee
under the Indenture until a successor is appointed thereunder, and thereafter
means such successor trustee.


 


“Debentures” means the Floating Rate Junior Subordinated Deferrable
Interest Debentures due 2036 to be issued by the Debenture Issuer under the
Indenture.


 


“Defaulted Interest” has the meaning set forth in the Indenture.


 


“Definitive Capital Securities Certificates” means Capital
Securities issued in certificated, fully registered form that are not Global
Capital Securities.


 


“Delaware Trustee” has the meaning set forth in Section 4.2.


 


“Depositary” means an organization registered as a clearing
agency under the Exchange Act that is designated as Depositary by the
Administrators or any successor thereto. 
DTC will be the initial Depositary.


 


3

















 


“Depositary Participant” means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Depositary
effects book-entry transfers and pledges of securities deposited with the
Depositary.


 


“Determination Date” has the meaning set forth in paragraph 4(a)
of Annex I.


 


“Direct Action” has the meaning set forth in Section 2.8(d).


 


“Distribution” means a distribution payable to Holders of
Securities in accordance with Section 5.1.


 


“Distribution Payment Date” has the meaning set forth in
paragraph 2(b) of Annex I.


 


“Distribution Period” means (i) with respect to the
Distribution paid on the first Distribution Payment Date, the period beginning
on (and including) the date of original issuance and ending on (but excluding)
the Distribution Payment Date in June 2006 and (ii) thereafter, with respect
to a Distribution paid on each successive Distribution Payment Date, the period
beginning on (and including) the preceding Distribution Payment Date and ending
on (but excluding) such current Distribution Payment Date.


 


“Distribution Rate” means, for the Distribution Period beginning
on (and including) the date of original issuance and ending on (but excluding)
the Distribution Payment Date in June 2006, the rate per annum of 6.47938%, and
for each Distribution Period beginning on or after the Distribution Payment
Date in June 2006, the Coupon Rate for such Distribution Period.


 


“DTC” means The Depository Trust Company or any successor
thereto.


 


“Event of Default” means any one of the following events
(whatever the reason for such event and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):


 


(a)           the occurrence of an
Indenture Event of Default; or


 


(b)           default by the Trust
in the payment of any Redemption Price or Special Redemption Price of any
Security when it becomes due and payable; or


 


(c)           default in the
performance, or breach, in any material respect, of any covenant or warranty of
the Institutional Trustee in this Declaration (other than those specified in
clause (a) or (b) above) and continuation of such default or breach for a
period of 60 days after there has been given, by registered or certified
mail to the Institutional Trustee and to the Sponsor by the Holders of at least
25% in aggregate liquidation amount of the outstanding Capital Securities, a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a “Notice of Default” hereunder; or


 


(d)           the occurrence of a
Bankruptcy Event with respect to the Institutional Trustee if a successor
Institutional Trustee has not been appointed within 90 days thereof.


 


“Exchange Act” means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.


 


“Extension Period” has the meaning set forth in paragraph 2(b)
of Annex I.


 


4

















 


“Federal Reserve” has the meaning set forth in paragraph 3
of Annex I.


 


“Fiduciary Indemnified Person” shall mean each of the
Institutional Trustee (including in its individual capacity), the Delaware
Trustee (including in its individual capacity), any Affiliate of the
Institutional Trustee or Delaware Trustee and any officers, directors,
shareholders, members, partners, employees, representatives, custodians,
nominees or agents of the Institutional Trustee or Delaware Trustee.


 


“Fiscal Year” has the meaning set forth in Section 10.1.


 


“Global Capital Security” means a Capital Securities Certificate
evidencing ownership of Book-Entry Capital Securities.


 


“Guarantee” means the guarantee agreement to be dated as of the
Closing Date, of the Sponsor in respect of the Capital Securities.


 


“Holder” means a Person in whose name a Certificate representing
a Security is registered, such Person being a beneficial owner within the
meaning of the Statutory Trust Act.


 


“Indemnified Person” means a Company Indemnified Person or a
Fiduciary Indemnified Person.


 


“Indenture” means the Indenture dated as of the Closing Date,
between the Debenture Issuer and the Debenture Trustee, and any indenture
supplemental thereto pursuant to which the Debentures are to be issued, as such
Indenture and any supplemental indenture may be amended, supplemented or
otherwise modified from time to time.


 


“Indenture Event of Default” means an “Event of Default” as
defined in the Indenture.


 


“Institutional Trustee” means the Trustee meeting the
eligibility requirements set forth in Section 4.3.


 


“Interest” means any interest due on the Debentures including
any Additional Interest and Defaulted Interest.


 


“Investment Company” means an investment company as defined in
the Investment Company Act.


 


“Investment Company Act” means the Investment Company Act of
1940, as amended from time to time, or any successor legislation.


 


“Investment Company Event” has the meaning set forth in
paragraph 4(a) of Annex I.


 


“Liquidation” has the meaning set forth in paragraph 3 of
Annex I.


 


“Liquidation Distribution” has the meaning set forth in
paragraph 3 of Annex I.


 


“Majority in liquidation amount of the Securities” means
Holder(s) of outstanding Securities voting together as a single class or, as
the context may require, Holders of outstanding Capital Securities or Holders
of outstanding Common Securities voting separately as a class, who are the
record owners of more than 50% of the aggregate liquidation amount (including
the stated amount that would be paid on redemption, liquidation or otherwise,
plus accrued and unpaid Distributions to the date upon which the voting
percentages are determined) of all outstanding Securities of the relevant
class.


 


5

















 


“Maturity Date” has the meaning set forth in paragraph 4(a) of
Annex I.


 


“Officers’ Certificates” means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person.  Any Officers’ Certificate delivered with
respect to compliance with a condition or covenant providing for it in this
Declaration shall include:


 


(a)           a statement that
each officer signing the Certificate has read the covenant or condition and the
definitions relating thereto;


 


(b)           a brief statement of
the nature and scope of the examination or investigation undertaken by each
officer in rendering the Certificate;


 


(c)           a statement that
each such officer has made such examination or investigation as, in such
officer’s opinion, is necessary to enable such officer to express an informed
opinion as to whether or not such covenant or condition has been complied with;
and


 


(d)           a statement as to
whether, in the opinion of each such officer, such condition or covenant has
been complied with.


 


“OTS” has the meaning set forth in paragraph 3 of
Annex I.


 


“Owner” means each Person who is the beneficial owner of
Book-Entry Capital Securities as reflected in the records of the Depositary or,
if a Depositary Participant is not the beneficial owner, then the beneficial
owner as reflected in the records of the Depositary Participant.


 


“Paying Agent” has the meaning specified in Section 6.2.


 


“Person” means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.


 


“Placement Agreement” means the Placement Agreement relating to
the offering and sale of Capital Securities in the form of Exhibit C.


 


“Property Account” has the meaning set forth in Section 2.8(c).


 


“Pro Rata” has the meaning set forth in paragraph 8 of
Annex I.


 


“QIB” means a “qualified institutional buyer” as defined in Rule
144A under the Securities Act.


 


“Quorum” means a majority of the Administrators or, if there are
only two Administrators, both of them.


 


“Redemption Date” has the meaning set forth in paragraph 4(a) of
Annex I.


 


“Redemption/Distribution Notice” has the meaning set forth in
paragraph 4(e) of Annex I.


 


“Redemption Price” has the meaning set forth in paragraph 4(a)
of Annex I.


 


“Registrar” has the meaning set forth in Section 6.2.


 


“Relevant Trustee” has the meaning set forth in Section 4.5(a).


 


6

















 


“Responsible Officer” means, with respect to the Institutional
Trustee, any officer within the Corporate Trust Office of the Institutional
Trustee, including any vice-president, any assistant vice-president, any
assistant secretary, the treasurer, any assistant treasurer, any trust officer
or other officer of the Corporate Trust Office of the Institutional Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of that
officer’s knowledge of and familiarity with the particular subject.


 


“Restricted Securities Legend” has the meaning set forth in Section
8.2(b).


 


“Rule 3a-5” means Rule 3a-5 under the Investment
Company Act.


 


“Rule 3a-7” means Rule 3a-7 under the Investment
Company Act.


 


“Securities” means the Common Securities and the Capital
Securities.


 


“Securities Act” means the Securities Act of 1933, as amended
from time to time, or any successor legislation.


 


“Special Event” has the meaning set forth in paragraph 4(a)
of Annex I.


 


“Special Redemption Date” has the meaning set forth in
paragraph 4(a) of Annex I.


 


“Special Redemption Price” has the meaning set forth in
paragraph 4(a) of Annex I.


 


“Sponsor” means First Regional Bancorp, a California
corporation, or any successor entity in a merger, consolidation or
amalgamation, in its capacity as sponsor of the Trust.


 


“Statutory Trust Act” means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. §§ 3801, et seq. as may
be amended from time to time.


 


“Successor Entity” has the meaning set forth in Section 2.15(b).


 


“Successor Delaware Trustee” has the meaning set forth in Section
4.5(e).


 


“Successor Institutional Trustee” has the meaning set forth in Section
4.5(b).


 


“Successor Securities” has the meaning set forth in Section
2.15(b).


 


“Super Majority” has the meaning set forth in paragraph 5(b)
of Annex I.


 


“Tax Event” has the meaning set forth in paragraph 4(a) of
Annex I.


 


“10% in liquidation amount of the Securities” means Holder(s) of
outstanding Securities voting together as a single class or, as the context may
require, Holders of outstanding Capital Securities or Holders of outstanding
Common Securities voting separately as a class, who are the record owners of
10% or more of the aggregate liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus accrued and
unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.


 


“3-Month LIBOR” has the meaning set forth in paragraph 4(a)
of Annex I.


 


“Transfer Agent” has the meaning set forth in Section 6.2.


 


7

















 


“Treasury Regulations” means the income tax regulations,
including temporary and proposed regulations, promulgated under the Code by the
United States Treasury, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).


 


“Trust Property” means (a) the Debentures, (b) any
cash on deposit in, or owing to, the Property Account and (c) all proceeds
and rights in respect of the foregoing and any other property and assets for
the time being held or deemed to be held by the Institutional Trustee pursuant
to the trusts of this Declaration.


 


“Trustee” or “Trustees” means each Person who has signed
this Declaration as a trustee, so long as such Person shall continue in office
in accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with
the provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.


 


“U.S. Person” means a United States Person as defined in Section
7701(a)(30) of the Code.


 


ARTICLE
II


 


ORGANIZATION


 


Section
2.1.           Name.  The
Trust is named “First Regional Statutory Trust VI,” as such name may be
modified from time to time by the Administrators following written notice to
the Holders of the Securities.  The Trust’s
activities may be conducted under the name of the Trust or any other name
deemed advisable by the Administrators.


 


Section
2.2.           Office.  The
address of the principal office of the Trust is c/o Wilmington Trust Company,
Rodney Square North, 1100 North Market Street, Wilmington, Delaware  19890-1600. 
On at least 10 Business Days written notice to the Holders of the
Securities, the Administrators may designate another principal office, which
shall be in a state of the United States or in the District of Columbia.


 


Section
2.3.           Purpose.  The
exclusive purposes and functions of the Trust are (a) to issue and sell
the Securities representing undivided beneficial interests in the assets of the
Trust, (b) to invest the gross proceeds from such sale to acquire the
Debentures, (c) to facilitate direct investment in the assets of the Trust
through issuance of the Common Securities and the Capital Securities and
(d) except as otherwise limited herein, to engage in only those other
activities necessary or incidental thereto. 
The Trust shall not borrow money, issue debt or reinvest proceeds
derived from investments, pledge any of its assets, or otherwise undertake (or
permit to be undertaken) any activity that would cause the Trust not to be
classified for United States federal income tax purposes as a grantor trust.


 


Section
2.4.           Authority.  Except
as specifically provided in this Declaration, the Institutional Trustee shall
have exclusive and complete authority to carry out the purposes of the
Trust.  An action taken by a Trustee in
accordance with its powers shall constitute the act of and serve to bind the
Trust.  In dealing with the Trustees
acting on behalf of the Trust, no Person shall be required to inquire into the
authority of the Trustees to bind the Trust. 
Persons dealing with the Trust are entitled to rely conclusively on the
power and authority of the Trustees as set forth in this Declaration.  The Administrators shall have only those
ministerial duties set forth herein with respect to accomplishing the purposes
of the Trust and are not intended to be trustees or fiduciaries with respect to
the Trust or the Holders.  The
Institutional Trustee shall have the right, but shall not be obligated except
as provided in Section 2.6, to perform those duties assigned to the
Administrators.


 


8

















 


Section
2.5.           Title to Property of the
Trust.  Except as provided in Section 2.8 with
respect to the Debentures and the Property Account or as otherwise provided in
this Declaration, legal title to all assets of the Trust shall be vested in the
Trust.  The Holders shall not have legal
title to any part of the assets of the Trust, but shall have an undivided
beneficial interest in the assets of the Trust.


 


Section
2.6.           Powers and Duties of the
Trustees and the Administrators.


 


(a)           The Trustees and the
Administrators shall conduct the affairs of the Trust in accordance with the
terms of this Declaration.  Subject to
the limitations set forth in paragraph (b) of this Section, and in
accordance with the following provisions (i) and (ii), the Trustees and
the Administrators shall have the authority to enter into all transactions and
agreements determined by the Institutional Trustee to be appropriate in
exercising the authority, express or implied, otherwise granted to the Trustees
or the Administrators, as the case may be, under this Declaration, and to
perform all acts in furtherance thereof, including without limitation, the
following:


 


(i)            Each Administrator shall have the power
and authority to act on behalf of the Trust with respect to the following
matters:


 


(A) the issuance
and sale of the Securities;


 


(B) to cause the
Trust to enter into, and to execute and deliver on behalf of the Trust, such
agreements as may be necessary or desirable in connection with the purposes and
function of the Trust, including agreements with the Paying Agent;


 


(C) ensuring
compliance with the Securities Act, applicable state securities or blue sky
laws;


 


(D) the sending of
notices (other than notices of default), and other information regarding the
Securities and the Debentures to the Holders in accordance with this
Declaration;


 


(E) the consent to
the appointment of a Paying Agent, Transfer Agent and Registrar in accordance
with this Declaration, which consent shall not be unreasonably withheld or
delayed;


 


(F) execution and
delivery of the Securities in accordance with this Declaration;


 


(G) execution and
delivery of closing certificates pursuant to the Placement Agreement and the
application for a taxpayer identification number;


 


(H) unless
otherwise determined by the Holders of a Majority in liquidation amount of the
Securities or as otherwise required by the Statutory Trust Act, to execute on
behalf of the Trust (either acting alone or together with any or all of the
Administrators) any documents that the Administrators have the power to execute
pursuant to this Declaration;


 


(I) the taking of
any action incidental to the foregoing as the Institutional Trustee may from
time to time determine is necessary or advisable to give effect to the terms of
this Declaration for the benefit of the Holders (without consideration of the
effect of any such action on any particular Holder);


 


9

















 


(J) to establish a
record date with respect to all actions to be taken hereunder that require a
record date be established, including Distributions, voting rights, redemptions
and exchanges, and to issue relevant notices to the Holders of Capital
Securities and Holders of Common Securities as to such actions and applicable
record dates; and


 


(K) to duly
prepare and file all applicable tax returns and tax information reports that
are required to be filed with respect to the Trust on behalf of the Trust.


 


(ii)           As among the Trustees and the
Administrators, the Institutional Trustee shall have the power, duty and
authority to act on behalf of the Trust with respect to the following matters:


 


(A) the
establishment of the Property Account;


 


(B) the receipt of
the Debentures;


 


(C) the collection
of interest, principal and any other payments made in respect of the Debentures
in the Property Account;


 


(D) the
distribution through the Paying Agent of amounts owed to the Holders in respect
of the Securities;


 


(E) the exercise
of all of the rights, powers and privileges of a holder of the Debentures;


 


(F) the sending of
notices of default and other information regarding the Securities and the
Debentures to the Holders in accordance with this Declaration;


 


(G) the
distribution of the Trust Property in accordance with the terms of this
Declaration;


 


(H) to the extent
provided in this Declaration, the winding up of the affairs of and liquidation
of the Trust and the preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of Delaware;


 


(I) after any
Event of Default (provided that such Event of Default is not by or with
respect to the Institutional Trustee) the taking of any action incidental to
the foregoing as the Institutional Trustee may from time to time determine is
necessary or advisable to give effect to the terms of this Declaration and
protect and conserve the Trust Property for the benefit of the Holders (without
consideration of the effect of any such action on any particular Holder); and


 


(J) to take all
action that may be necessary for the preservation and the continuation of the
Trust’s valid existence, rights, franchises and privileges as a statutory trust
under the laws of the State of Delaware.


 


(iii)          The Institutional Trustee shall have
the power and authority to act on behalf of the Trust with respect to any of
the duties, liabilities, powers or the authority of the Administrators set
forth in Section 2.6(a)(i)(D), (E) and (F) herein but shall not have a
duty to do any such act unless specifically requested to do so in writing by
the Sponsor, and shall then be fully protected in acting pursuant to such
written request; and in the event of a conflict between


 


10

















 


the action of the
Administrators and the action of the Institutional Trustee, the action of the
Institutional Trustee shall prevail.


 


(b)           So long as this
Declaration remains in effect, the Trust (or the Trustees or Administrators
acting on behalf of the Trust) shall not undertake any business, activities or
transaction except as expressly provided herein or contemplated hereby. In
particular, neither the Trustees nor the Administrators may cause the Trust to
(i) acquire any investments or engage in any activities not authorized by
this Declaration, (ii) sell, assign, transfer, exchange, mortgage, pledge,
set-off or otherwise dispose of any of the Trust Property or interests therein,
including to Holders, except as expressly provided herein, (iii) take any
action that would reasonably be expected (x) to cause the Trust to fail or
cease to qualify as a “grantor trust” for United States federal income tax
purposes or (y) to require the trust to register as an Investment Company under
the Investment Company Act, (iv) incur any indebtedness for borrowed money
or issue any other debt or (v) take or consent to any action that would
result in the placement of a lien on any of the Trust Property.  The Institutional Trustee shall, at the sole
cost and expense of the Trust, defend all claims and demands of all Persons at
any time claiming any lien on any of the Trust Property adverse to the interest
of the Trust or the Holders in their capacity as Holders.


 


(c)           In connection with
the issuance and sale of the Capital Securities, the Sponsor shall have the
right and responsibility to assist the Trust with respect to, or effect on
behalf of the Trust, the following (and any actions taken by the Sponsor in
furtherance of the following prior to the date of this Declaration are hereby
ratified and confirmed in all respects):


 


(i)            the taking of any action necessary
to obtain an exemption from the Securities Act;


 


(ii)           the determination of the States in
which to take appropriate action to qualify or register for sale all or part of
the Capital Securities and the determination of any and all such acts, other
than actions which must be taken by or on behalf of the Trust, and the advice
to the Administrators of actions they must take on behalf of the Trust, and the
preparation for execution and filing of any documents to be executed and filed
by the Trust or on behalf of the Trust, as the Sponsor deems necessary or
advisable in order to comply with the applicable laws of any such States in
connection with the sale of the Capital Securities;


 


(iii)          the negotiation of the terms of, and
the execution and delivery of, the Placement Agreement providing for the sale
of the Capital Securities; and


 


(iv)          the taking of any other actions
necessary or desirable to carry out any of the foregoing activities.


 


(d)           Notwithstanding
anything herein to the contrary, the Administrators and the Holders of a
Majority in liquidation amount of the Common Securities are authorized and
directed to conduct the affairs of the Trust and to operate the Trust so that
the Trust will not (i) be deemed to be an Investment Company required to be
registered under the Investment Company Act, and (ii) fail to be
classified as a “grantor trust” for United States federal income tax
purposes.  The Administrators and the
Holders of a Majority in liquidation amount of the Common Securities shall not
take any action inconsistent with the treatment of the Debentures as
indebtedness of the Debenture Issuer for United States federal income tax
purposes.  In this connection, the
Administrators and the Holders of a Majority in liquidation amount of the
Common Securities are authorized to take any action, not inconsistent with
applicable laws, the Certificate of Trust or this Declaration, as amended from
time to time, that each of the Administrators and the Holders of a Majority in
liquidation amount of the Common Securities determines in their discretion to
be necessary or desirable for such purposes.


 


11

















 


(e)           All expenses
incurred by the Administrators or the Trustees pursuant to this Section 2.6
shall be reimbursed by the Sponsor, and the Trustees and the Administrators
shall have no obligations with respect to such expenses (for purposes of
clarification, this Section 2.6(e) does not contemplate the payment by the
Sponsor of acceptance or annual administration fees owing to the Trustees under
this Declaration or the fees and expenses of the Trustees’ counsel in
connection with the closing of the transactions contemplated by this
Declaration).


 


(f)            The assets of the
Trust shall consist of the Trust Property.


 


(g)           Legal title to all
Trust Property shall be vested at all times in the Institutional Trustee (in
its capacity as such) and shall be held and administered by the Institutional
Trustee and the Administrators for the benefit of the Trust in accordance with
this Declaration.


 


(h)           If the Institutional
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Declaration and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Institutional
Trustee or to such Holder, then and in every such case the Sponsor, the
Institutional Trustee and the Holders shall, subject to any determination in
such proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the
Institutional Trustee and the Holders shall continue as though no such
proceeding had been instituted.


 


Section
2.7.           Prohibition of Actions
by the Trust and the Institutional Trustee.


 


(a)           The Trust shall not,
and the Institutional Trustee shall cause the Trust not to, engage in any
activity other than as required or authorized by this Declaration.  In particular, the Trust shall not and the
Institutional Trustee shall cause the Trust not to:


 


(i)            invest any proceeds received by the
Trust from holding the Debentures, but shall distribute all such proceeds to
Holders of the Securities pursuant to the terms of this Declaration and of the
Securities;


 


(ii)           acquire any assets other than as
expressly provided herein;


 


(iii)          possess Trust Property for other than
a Trust purpose;


 


(iv)          make any loans or incur any
indebtedness other than loans represented by the Debentures;


 


(v)           possess any power or otherwise act in
such a way as to vary the Trust assets or the terms of the Securities in any
way whatsoever other than as expressly provided herein;


 


(vi)          issue any securities or other
evidences of beneficial ownership of, or beneficial interest in, the Trust
other than the Securities;


 


(vii)         carry on any “trade or business” as
that phrase is used in the Code; or


 


(viii)        other than as provided in this
Declaration (including Annex I), (A) direct the time, method and
place of exercising any trust or power conferred upon the Debenture Trustee
with respect to the Debentures, (B) waive any past default that is
waivable under the Indenture, (C) exercise any right to rescind or annul
any declaration that the principal of all the Debentures shall be due and
payable, or (D) consent to any amendment, modification or termination of
the Indenture or the Debentures where such consent shall be required unless the
Trust shall have


 


12

















 


received a written
opinion of counsel to the effect that such modification will not cause the
Trust to cease to be classified as a “grantor trust” for United States federal
income tax purposes.


 


Section
2.8.           Powers and Duties of the
Institutional Trustee.


 


(a)           The legal title to
the Debentures shall be owned by and held of record in the name of the
Institutional Trustee in trust for the benefit of the Trust and the Holders of
the Securities.  The right, title and
interest of the Institutional Trustee to the Debentures shall vest
automatically in each Person who may hereafter be appointed as Institutional
Trustee in accordance with Section 4.5. 
Such vesting and cessation of title shall be effective whether or not
conveyancing documents with regard to the Debentures have been executed and
delivered.


 


(b)           The Institutional
Trustee shall not transfer its right, title and interest in the Debentures to
the Administrators or to the Delaware Trustee.


 


(c)           The Institutional
Trustee shall:


 


(i)            establish and maintain a segregated
non-interest bearing trust account (the “Property Account”) in the name
of and under the exclusive control of the Institutional Trustee, and maintained
in the Institutional Trustee’s trust department, on behalf of the Holders of
the Securities and, upon the receipt of payments of funds made in respect of
the Debentures held by the Institutional Trustee, deposit such funds into the
Property Account and make payments, or cause the Paying Agent to make payments,
to the Holders of the Capital Securities and Holders of the Common Securities
from the Property Account in accordance with Section 5.1.  Funds in the Property Account shall be held
uninvested until disbursed in accordance with this Declaration;


 


(ii)           engage in such ministerial activities
as shall be necessary or appropriate to effect the redemption of the Capital
Securities and the Common Securities to the extent the Debentures are redeemed
or mature; and


 


(iii)          upon written notice of distribution
issued by the Administrators in accordance with the terms of the Securities,
engage in such ministerial activities as shall be necessary or appropriate to
effect the distribution of the Debentures to Holders of Securities upon the
occurrence of certain circumstances pursuant to the terms of the Securities.


 


(d)           The Institutional
Trustee may bring or defend, pay, collect, compromise, arbitrate, resort to
legal action with respect to, or otherwise adjust claims or demands of or
against, the Trust which arises out of or in connection with an Event of
Default of which a Responsible Officer of the Institutional Trustee has actual
knowledge or arises out of the Institutional Trustee’s duties and obligations
under this Declaration; provided, however, that if an Event of
Default has occurred and is continuing and such event is attributable to the
failure of the Debenture Issuer to pay interest or principal on the Debentures
on the date such interest or principal is otherwise payable (or in the case of
redemption, on the redemption date), then a Holder of the Capital Securities
may directly institute a proceeding for enforcement of payment to such Holder
of the principal of or interest on the Debentures having a principal amount
equal to the aggregate liquidation amount of the Capital Securities of such
Holder (a “Direct Action”) on or after the respective due date specified
in the Debentures.  In connection with
such Direct Action, the rights of the Holders of the Common Securities will be
subrogated to the rights of such Holder of the Capital Securities to the extent
of any payment made by the Debenture Issuer to such Holder of the Capital
Securities in such Direct Action; provided, however, that no
Holder of the Common Securities may exercise such right of subrogation so long
as an Event of Default with respect to the Capital Securities has occurred and
is continuing.


 


13

















 


(e)           The Institutional
Trustee shall continue to serve as a Trustee until either:


 


(i)            the Trust has been completely
liquidated and the proceeds of the liquidation distributed to the Holders of
the Securities pursuant to the terms of the Securities and this Declaration; or


 


(ii)           a Successor Institutional Trustee has
been appointed and has accepted that appointment in accordance with Section 4.5.


 


(f)            The Institutional
Trustee shall have the legal power to exercise all of the rights, powers and
privileges of a Holder of the Debentures under the Indenture and, if an Event
of Default occurs and is continuing, the Institutional Trustee may, for the
benefit of Holders of the Securities, enforce its rights as holder of the
Debentures subject to the rights of the Holders pursuant to this Declaration
(including Annex I) and the terms of the Securities.


 


The Institutional Trustee must exercise the powers set forth in this Section
2.8 in a manner that is consistent with the purposes and functions of the Trust
set out in Section 2.3, and the Institutional Trustee shall not take any action
that is inconsistent with the purposes and functions of the Trust set out in Section
2.3.


 


Section
2.9.           Certain Duties and Responsibilities
of the Trustees and Administrators.


 


(a)           The Institutional
Trustee, before the occurrence of any Event of Default and after the curing or
waiving of all such Events of Default that may have occurred, shall undertake
to perform only such duties as are specifically set forth in this Declaration
and no implied covenants shall be read into this Declaration against the
Institutional Trustee.  In case an Event
of Default has occurred (that has not been cured or waived pursuant to Section
6.8), the Institutional Trustee shall exercise such of the rights and powers
vested in it by this Declaration, and use the same degree of care and skill in
their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.


 


(b)           The duties and
responsibilities of the Trustees and the Administrators shall be as provided by
this Declaration.  Notwithstanding the
foregoing, no provision of this Declaration shall require any Trustee or
Administrator to expend or risk their own funds or otherwise incur any
financial liability in the performance of any of their duties hereunder, or in
the exercise of any of their rights or powers if it shall have reasonable
grounds to believe that repayment of such funds or adequate protection against
such risk of liability is not reasonably assured to it.  Whether or not therein expressly so provided,
every provision of this Declaration relating to the conduct or affecting the
liability of or affording protection to the Trustees or Administrators shall be
subject to the provisions of this Article. 
Nothing in this Declaration shall be construed to relieve an
Administrator or a Trustee from liability for its own negligent act, its own
negligent failure to act, or its own willful misconduct.  To the extent that, at law or in equity, a Trustee
or an Administrator has duties and liabilities relating to the Trust or to the
Holders, such Trustee or such Administrator shall not be liable to the Trust or
to any Holder for such Trustee’s or such Administrator’s good faith reliance on
the provisions of this Declaration.  The
provisions of this Declaration, to the extent that they restrict the duties and
liabilities of the Administrators or the Trustee otherwise existing at law or
in equity, are agreed by the Sponsor and the Holders to replace such other
duties and liabilities of the Administrators or the Trustees.


 


(c)           All payments made by
the Institutional Trustee or a Paying Agent in respect of the Securities shall
be made only from the revenue and proceeds from the Trust Property and only to
the extent that there shall be sufficient revenue or proceeds from the Trust
Property to enable the Institutional Trustee or a Paying Agent to make payments
in accordance with the terms hereof. 
Each Holder, by its acceptance of a Security, agrees that it will look
solely to the revenue and proceeds from the Trust


 


14

















 


Property to the
extent legally available for distribution to it as herein provided and that the
Trustees and the Administrators are not personally liable to it for any amount
distributable in respect of any Security or for any other liability in respect
of any Security.  This Section 2.9(c)
does not limit the liability of the Trustees expressly set forth elsewhere in
this Declaration.


 


(d)           The Institutional
Trustee shall not be liable for its own acts or omissions hereunder except as a
result of its own negligent action, its own negligent failure to act, or its
own willful misconduct, except that:


 


(i)            the Institutional Trustee shall not
be liable for any error of judgment made in good faith by an Authorized Officer
of the Institutional Trustee, unless it shall be proved that the Institutional
Trustee was negligent in ascertaining the pertinent facts;


 


(ii)           the Institutional Trustee shall not
be liable with respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of not less than a
Majority in liquidation amount of the Capital Securities or the Common
Securities, as applicable, relating to the time, method and place of conducting
any proceeding for any remedy available to the Institutional Trustee, or
exercising any trust or power conferred upon the Institutional Trustee under
this Declaration;


 


(iii)          the Institutional Trustee’s sole duty
with respect to the custody, safekeeping and physical preservation of the
Debentures and the Property Account shall be to deal with such property in a
similar manner as the Institutional Trustee deals with similar property for its
fiduciary accounts generally, subject to the protections and limitations on
liability afforded to the Institutional Trustee under this Declaration;


 


(iv)          the Institutional Trustee shall not be
liable for any interest on any money received by it except as it may otherwise
agree in writing with the Sponsor; and money held by the Institutional Trustee
need not be segregated from other funds held by it except in relation to the
Property Account maintained by the Institutional Trustee pursuant to Section
2.8(c)(i) and except to the extent otherwise required by law; and


 


(v)           the Institutional Trustee shall not
be responsible for monitoring the compliance by the Administrators or the
Sponsor with their respective duties under this Declaration, nor shall the
Institutional Trustee be liable for any default or misconduct of the
Administrators or the Sponsor.


 


Section
2.10.        Certain Rights of
Institutional Trustee.  Subject to the
provisions of Section 2.9:


 


(a)           the Institutional
Trustee may conclusively rely and shall fully be protected in acting or
refraining from acting in good faith upon any resolution, opinion of counsel,
certificate, written representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, appraisal, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed, sent or presented by the proper party or
parties;


 


(b)           if (i) in
performing its duties under this Declaration, the Institutional Trustee is
required to decide between alternative courses of action, (ii) in
construing any of the provisions of this Declaration, the Institutional Trustee
finds the same ambiguous or inconsistent with any other provisions contained
herein, or (iii) the Institutional Trustee is unsure of the application of
any provision of this Declaration, then, except as to any matter as to which
the Holders of Capital Securities are entitled to vote under the


 


15

















 


terms of this
Declaration, the Institutional Trustee may deliver a notice to the Sponsor
requesting the Sponsor’s written instructions as to the course of action to be
taken and the Institutional Trustee shall take such action, or refrain from
taking such action, as the Institutional Trustee shall be instructed in
writing, in which event the Institutional Trustee shall have no liability
except for its own negligence or willful misconduct;


 


(c)           any direction or act
of the Sponsor or the Administrators contemplated by this Declaration shall be
sufficiently evidenced by an Officers’ Certificate;


 


(d)           whenever in the
administration of this Declaration, the Institutional Trustee shall deem it
desirable that a matter be proved or established before undertaking, suffering
or omitting any action hereunder, the Institutional Trustee (unless other
evidence is herein specifically prescribed) may request and conclusively rely
upon an Officers’ Certificate as to factual matters which, upon receipt of such
request, shall be promptly delivered by the Sponsor or the Administrators;


 


(e)           the Institutional
Trustee shall have no duty to see to any recording, filing or registration of
any instrument (including any financing or continuation statement or any filing
under tax or securities laws) or any rerecording, refiling or reregistration
thereof;


 


(f)            the Institutional
Trustee may consult with counsel of its selection (which counsel may be counsel
to the Sponsor or any of its Affiliates) and the advice of such counsel shall
be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon and in accordance with such advice; the Institutional Trustee shall
have the right at any time to seek instructions concerning the administration
of this Declaration from any court of competent jurisdiction;


 


(g)           the Institutional
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Declaration at the request or direction of any of the
Holders pursuant to this Declaration, unless such Holders shall have offered to
the Institutional Trustee security or indemnity reasonably satisfactory to it
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction; provided, that nothing
contained in this Section 2.10(g) shall be taken to relieve the Institutional
Trustee, subject to Section 2.9(b), upon the occurrence of an Event of Default
(that has not been cured or waived pursuant to Section 6.9), to exercise
such of the rights and powers vested in it by this Declaration, and use the
same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs;


 


(h)           the Institutional
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond, debenture, note or other
evidence of indebtedness or other paper or document, unless requested in
writing to do so by one or more Holders, but the Institutional Trustee may make
such further inquiry or investigation into such facts or matters as it may see
fit;


 


(i)            the Institutional
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through its agents or attorneys and the
Institutional Trustee shall not be responsible for any misconduct or negligence
on the part of or for the supervision of, any such agent or attorney appointed
with due care by it hereunder;


 


(j)            whenever in the
administration of this Declaration the Institutional Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy or right
or taking any other action hereunder the Institutional Trustee (i) may
request instructions from the Holders of the Capital Securities which instructions
may only be given by the Holders of the same proportion in liquidation amount
of the Capital Securities as would be entitled to direct the Institutional
Trustee under the terms of the Capital


 


16

















 


Securities in
respect of such remedy, right or action, (ii) may refrain from enforcing
such remedy or right or taking such other action until such instructions are
received, and (iii) shall be fully protected in acting in accordance with
such instructions;


 


(k)           except as otherwise
expressly provided in this Declaration, the Institutional Trustee shall not be
under any obligation to take any action that is discretionary under the
provisions of this Declaration;


 


(l)            when the
Institutional Trustee incurs expenses or renders services in connection with a
Bankruptcy Event, such expenses (including the fees and expenses of its
counsel) and the compensation for such services are intended to constitute
expenses of administration under any bankruptcy law or law relating to
creditors rights generally;


 


(m)          the Institutional
Trustee shall not be charged with knowledge of an Event of Default unless a
Responsible Officer of the Institutional Trustee obtains actual knowledge of
such event or the Institutional Trustee receives written notice of such event
from any Holder, the Sponsor or the Debenture Trustee;


 


(n)           any action taken by
the Institutional Trustee or its agents hereunder shall bind the Trust and the
Holders of the Securities, and the signature of the Institutional Trustee or
its agents alone shall be sufficient and effective to perform any such action
and no third party shall be required to inquire as to the authority of the
Institutional Trustee to so act or as to its compliance with any of the terms
and provisions of this Declaration, both of which shall be conclusively
evidenced by the Institutional Trustee’s or its agent’s taking such action; and


 


(o)           no provision of this
Declaration shall be deemed to impose any duty or obligation on the
Institutional Trustee to perform any act or acts or exercise any right, power,
duty or obligation conferred or imposed on it, in any jurisdiction in which it
shall be illegal, or in which the Institutional Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts,
or to exercise any such right, power, duty or obligation.  No permissive power or authority available to
the Institutional Trustee shall be construed to be a duty.


 


Section 2.11.        Delaware
Trustee.  Notwithstanding
any other provision of this Declaration other than Section 4.1, the Delaware
Trustee shall not be entitled to exercise any powers, nor shall the Delaware
Trustee have any of the duties and responsibilities of any of the Trustees or
the Administrators described in this Declaration (except as may be required
under the Statutory Trust Act).  Except
as set forth in Section 4.1, the Delaware Trustee shall be a Trustee for the
sole and limited purpose of fulfilling the requirements of § 3807 of the
Statutory Trust Act.


 


Section
2.12.        Execution of Documents.  Unless
otherwise determined in writing by the Institutional Trustee, and except as
otherwise required by the Statutory Trust Act, the Institutional Trustee, or
any one or more of the Administrators, as the case may be, is authorized to
execute on behalf of the Trust any documents that the Trustees or the
Administrators, as the case may be, have the power and authority to execute
pursuant to Section 2.6.


 


Section
2.13.        Not Responsible for
Recitals or Issuance of Securities.  The
recitals contained in this Declaration and the Securities shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility
for their correctness.  The Trustees make
no representations as to the value or condition of the property of the Trust or
any part thereof.  The Trustees make no
representations as to the validity or sufficiency of this Declaration, the
Debentures or the Securities.


 


17

















 


Section
2.14.        Duration of Trust.  The
Trust, unless earlier dissolved pursuant to the provisions of Article VII
hereof, shall be in existence for 35 years from the Closing Date.


 


Section
2.15.        Mergers.


 


(a)           The Trust may not
consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets substantially as an entirety to any
corporation or other body, except as described in Section 2.15(b) and (c) and
except in connection with the liquidation of the Trust and the distribution of
the Debentures to Holders of Securities pursuant to Section 7.1(a)(iv) of the
Declaration or Section 4 of Annex I.


 


(b)           The Trust may, with
the consent of the Institutional Trustee and without the consent of the Holders
of the Capital Securities, consolidate, amalgamate, merge with or into, or be
replaced by a trust organized as such under the laws of any state; provided
that:


 


(i)            if the Trust is not the surviving
entity, such successor entity (the “Successor Entity”) either:


 


(A) expressly
assumes all of the obligations of the Trust under the Securities; or


 


(B) substitutes
for the Securities other securities having substantially the same terms as the
Securities (the “Successor Securities”) so that the Successor Securities
rank the same as the Securities rank with respect to Distributions and payments
upon Liquidation, redemption and otherwise;


 


(ii)           the Sponsor expressly appoints a
trustee of the Successor Entity that possesses substantially the same powers
and duties as the Institutional Trustee as the Holder of the Debentures;


 


(iii)          such merger, consolidation,
amalgamation or replacement does not adversely affect the rights, preferences
and privileges of the Holders of the Securities (including any Successor
Securities) in any material respect;


 


(iv)          the Institutional Trustee receives
written confirmation from Moody’s Investor Services, Inc. and any other
nationally recognized statistical rating organization that rates securities
issued by the initial purchaser of the Capital Securities that it will not
reduce or withdraw the rating of any such securities because of such merger,
conversion, consolidation, amalgamation or replacement;


 


(v)           such Successor Entity has a purpose
substantially identical to that of the Trust;


 


(vi)          prior to such merger, consolidation,
amalgamation or replacement, the Trust has received an opinion of a nationally
recognized independent counsel to the Trust experienced in such matters to the
effect that:


 


(A) such merger,
consolidation, amalgamation or replacement does not adversely affect the
rights, preferences and privileges of the Holders of the Securities (including
any Successor Securities) in any material respect;


 


(B) following such
merger, consolidation, amalgamation or replacement, neither the Trust nor the
Successor Entity will be required to register as an Investment Company; and


 


18

















 


(C) following such
merger, consolidation, amalgamation or replacement, the Trust (or the Successor
Entity) will continue to be classified as a “grantor trust” for United States
federal income tax purposes;


 


(vii)         the Sponsor guarantees the obligations
of such Successor Entity under the Successor Securities at least to the extent
provided by the Guarantee;


 


(viii)        the Sponsor owns 100% of the common
securities of any Successor Entity; and


 


(ix)           prior to such merger, consolidation,
amalgamation or replacement, the Institutional Trustee shall have received an
Officers’ Certificate of the Administrators and an opinion of counsel, each to
the effect that all conditions precedent under this Section 2.15(b) to such
transaction have been satisfied.


 


(c)           Notwithstanding Section
2.15(b), the Trust shall not, except with the consent of Holders of 100% in
aggregate liquidation amount of the Securities, consolidate, amalgamate, merge
with or into, or be replaced by any other entity or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it if such
consolidation, amalgamation, merger or replacement would cause the Trust or Successor
Entity to be classified as other than a grantor trust for United States federal
income tax purposes.


 


ARTICLE
III


 


SPONSOR


 


Section
3.1.           Sponsor’s Purchase of
Common Securities.  On the Closing Date, the
Sponsor will purchase all of the Common Securities issued by the Trust in an
amount at least equal to 3% of the capital of the Trust, at the same time as
the Capital Securities are sold.


 


Section
3.2.           Responsibilities of the
Sponsor.  In connection with the issue and sale
of the Capital Securities, the Sponsor shall have the exclusive right and
responsibility to engage in, or direct the Administrators to engage in, the
following activities:


 


(a)           to determine the
States in which to take appropriate action to qualify the Trust or to qualify
or register for sale all or part of the Capital Securities and to do any and
all such acts, other than actions which must be taken by the Trust, and advise
the Trust of actions it must take, and prepare for execution and filing any
documents to be executed and filed by the Trust, as the Sponsor deems necessary
or advisable in order to comply with the applicable laws of any such States, to
protect the limited liability of the Holders of the Capital Securities or to
enable the Trust to effect the purposes for which it was created; and


 


(b)           to negotiate the
terms of and/or execute on behalf of the Trust, the Placement Agreement and
other related agreements providing for the sale of the Capital Securities.


 


Section
3.3.           Expenses.  In
connection with the offering, sale and issuance of the Debentures to the Trust
and in connection with the sale of the Securities by the Trust, the Sponsor, in
its capacity as Debenture Issuer, shall:


 


(a)           pay all reasonable
costs and expenses owing to the Debenture Trustee pursuant to Section 6.6
of the Indenture;


 


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(b)           be responsible for
and shall pay all debts and obligations (other than with respect to the
Securities) and all costs and expenses of the Trust, the offering, sale and
issuance of the Securities (including fees to the placement agents in
connection therewith), the costs and expenses (including reasonable counsel
fees and expenses) of the Institutional Trustee and the Administrators, the
costs and expenses relating to the operation of the Trust, including, without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, Paying Agents, Registrars, Transfer Agents, duplicating,
travel and telephone and other telecommunications expenses and costs and
expenses incurred in connection with the acquisition, financing, and
disposition of Trust assets and the enforcement by the Institutional Trustee of
the rights of the Holders (for purposes of clarification, this Section 3.3(b)
does not contemplate the payment by the Sponsor of acceptance or annual
administration fees owing to the Trustees pursuant to the services to be
provided by the Trustees under this Declaration or the fees and expenses of the
Trustees’ counsel in connection with the closing of the transactions
contemplated by this Declaration); and


 


(c)           pay any and all
taxes (other than United States withholding taxes attributable to the Trust or
its assets) and all liabilities, costs and expenses with respect to such taxes
of the Trust.


 


The Sponsor’s obligations under this Section 3.3 shall be for the
benefit of, and shall be enforceable by, any Person to whom such debts,
obligations, costs, expenses and taxes are owed (a “Creditor”) whether
or not such Creditor has received notice hereof.  Any such Creditor may enforce the Sponsor’s
obligations under this Section 3.3 directly against the Sponsor and the
Sponsor irrevocably waives any right or remedy to require that any such Creditor
take any action against the Trust or any other Person before proceeding against
the Sponsor.  The Sponsor agrees to
execute such additional agreements as may be necessary or desirable in order to
give full effect to the provisions of this Section 3.3.


 


Section
3.4.           Right to Proceed.  The
Sponsor acknowledges the rights of Holders to institute a Direct Action as set
forth in Section 2.8(d) hereto.


 


ARTICLE
IV


 


INSTITUTIONAL
TRUSTEE AND ADMINISTRATORS


 


Section
4.1.           Number of Trustees.  The
number of Trustees shall initially be two, and;


 


(a)           at any time before
the issuance of any Securities, the Sponsor may, by written instrument, increase
or decrease the number of Trustees; and


 


(b)           after the issuance
of any Securities, the number of Trustees may be increased or decreased by vote
of the Holder of a Majority in liquidation amount of the Common Securities
voting as a class at a meeting of the Holder of the Common Securities; provided,
however, that there shall be a Delaware Trustee if required by Section
4.2; and there shall always be one Trustee who shall be the Institutional
Trustee, and such Trustee may also serve as Delaware Trustee if it meets the
applicable requirements, in which case Section 2.11 shall have no application
to such entity in its capacity as Institutional Trustee.


 


Section
4.2.           Delaware Trustee;
Eligibility.


 


(a)           If required by the
Statutory Trust Act, one Trustee (the “Delaware Trustee”) shall be:


 


(i)            a natural person at least 21 years
of age who is a resident of the State of Delaware; or


 


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(ii)           if not a natural person, an entity
which is organized under the laws of the United States or any state thereof or
the District of Columbia, has its principal place of business in the State of
Delaware, and otherwise meets the requirements of applicable law, including §
3807 of the Statutory Trust Act.


 


(b)           The initial Delaware
Trustee shall be Wilmington Trust Company.


 


Section
4.3.           Institutional Trustee;
Eligibility.


 


(a)           There shall at all
times be one Trustee which shall:


 


(i)            not be an Affiliate of the Sponsor;


 


(ii)           not offer or provide credit or credit
enhancement to the Trust; and


 


(iii)          be a banking corporation or trust
company organized and doing business under the laws of the United States of
America or any state thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least 50 million U.S. dollars ($50,000,000.00), and subject to
supervision or examination by Federal, state, or District of Columbia
authority.  If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the supervising or examining authority referred to above, then for the
purposes of this Section 4.3(a)(iii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published.


 


(b)           If at any time the
Institutional Trustee shall cease to be eligible to so act under Section 4.3(a),
the Institutional Trustee shall immediately resign in the manner and with the
effect set forth in Section 4.5.


 


(c)           If the Institutional
Trustee has or shall acquire any “conflicting interest” within the meaning of
Section 310(b) of the Trust Indenture Act of 1939, as amended, the
Institutional Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to this Declaration.


 


(d)           The initial
Institutional Trustee shall be Wilmington Trust Company.


 


Section
4.4.           Administrators.  Each
Administrator shall be a U.S. Person, 21 years of age or older and authorized
to bind the Sponsor.  The initial
Administrators shall be Jack A. Sweeney, H. Anthony Gartshore and Thomas
McCullough.  There shall at all times be
at least one Administrator.  Except where
a requirement for action by a specific number of Administrators is expressly
set forth in this Declaration and except with respect to any action the taking
of which is the subject of a meeting of the Administrators, any action required
or permitted to be taken by the Administrators may be taken by, and any power
of the Administrators may be exercised by, or with the consent of, any one such
Administrator.


 


Section
4.5.           Appointment, Removal and
Resignation of Trustees and Administrators.


 


(a)           No resignation or
removal of any Trustee (the “Relevant Trustee”) and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of this Section 4.5.


 


(b)           Subject to Section
4.5(a), a Relevant Trustee may resign at any time by giving written notice
thereof to the Holders of the Securities and by appointing a successor Relevant
Trustee.  Upon the


 


21

















 


resignation of the
Institutional Trustee, the Institutional Trustee shall appoint a successor by
requesting from at least three Persons meeting the eligibility requirements
their expenses and charges to serve as the successor Institutional Trustee on a
form provided by the Administrators, and selecting the Person who agrees to the
lowest expense and charges (the “Successor Institutional Trustee”).  If the instrument of acceptance by the
successor Relevant Trustee required by this Section 4.5 shall not have been
delivered to the Relevant Trustee within 60 days after the giving of such
notice of resignation or delivery of the instrument of removal, the Relevant
Trustee may petition, at the expense of the Trust, any federal, state or
District of Columbia court of competent jurisdiction for the appointment of a
successor Relevant Trustee.  Such court
may thereupon, after prescribing such notice, if any, as it may deem proper,
appoint a Relevant Trustee. The Institutional Trustee shall have no liability
for the selection of such successor pursuant to this Section 4.5.


 


(c)           Unless an Event of
Default shall have occurred and be continuing, any Trustee may be removed at
any time by an act of the Holders of a Majority in liquidation amount of the
Common Securities.  If any Trustee shall
be so removed, the Holders of the Common Securities, by act of the Holders of a
Majority in liquidation amount of the Common Securities delivered to the
Relevant Trustee, shall promptly appoint a successor Relevant Trustee, and such
successor Trustee shall comply with the applicable requirements of this Section
4.5.  If an Event of Default shall have
occurred and be continuing, the Institutional Trustee or the Delaware Trustee,
or both of them, may be removed by the act of the Holders of a Majority in
liquidation amount of the Capital Securities, delivered to the Relevant Trustee
(in its individual capacity and on behalf of the Trust).  If any Trustee shall be so removed, the
Holders of Capital Securities, by act of the Holders of a Majority in
liquidation amount of the Capital Securities then outstanding delivered to the
Relevant Trustee, shall promptly appoint a successor Relevant Trustee or Trustees,
and such successor Trustee shall comply with the applicable requirements of
this Section 4.5.  If no successor
Relevant Trustee shall have been so appointed by the Holders of a Majority in
liquidation amount of the Capital Securities and accepted appointment in the
manner required by this Section 4.5 within 30 days after delivery of an
instrument of removal, the Relevant Trustee or any Holder who has been a Holder
of the Securities for at least six months may, on behalf of himself and all
others similarly situated, petition any federal, state or District of Columbia
court of competent jurisdiction for the appointment of a successor Relevant
Trustee.  Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a successor
Relevant Trustee or Trustees.


 


(d)           The Institutional
Trustee shall give notice of each resignation and each removal of a Trustee and
each appointment of a successor Trustee to all Holders and to the Sponsor.  Each notice shall include the name of the
successor Relevant Trustee and the address of its Corporate Trust Office if it
is the Institutional Trustee.


 


(e)           Notwithstanding the
foregoing or any other provision of this Declaration, in the event a Delaware
Trustee who is a natural person dies or is adjudged by a court to have become
incompetent or incapacitated, the vacancy created by such death, incompetence
or incapacity may be filled by the Institutional Trustee following the
procedures in this Section 4.5 (with the successor being a Person who satisfies
the eligibility requirement for a Delaware Trustee set forth in this
Declaration) (the “Successor Delaware Trustee”).


 


(f)            In case of the
appointment hereunder of a successor Relevant Trustee, the retiring Relevant
Trustee and each successor Relevant Trustee with respect to the Securities
shall execute and deliver an amendment hereto wherein each successor Relevant
Trustee shall accept such appointment and which (a) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and
to vest in, each successor Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the Securities and the
Trust and (b) shall add to or change any of the provisions of this
Declaration as shall be necessary to provide for or facilitate the
administration of the Trust by more


 


22

















 


than one Relevant
Trustee, it being understood that nothing herein or in such amendment shall
constitute such Relevant Trustees co-trustees and upon the execution and
delivery of such amendment the resignation or removal of the retiring Relevant
Trustee shall become effective to the extent provided therein and each such
successor Relevant Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Relevant Trustee; but, on request of the Trust or any successor Relevant
Trustee, such retiring Relevant Trustee shall duly assign, transfer and deliver
to such successor Relevant Trustee all Trust Property, all proceeds thereof and
money held by such retiring Relevant Trustee hereunder with respect to the
Securities and the Trust subject to the payment of all unpaid fees, expenses
and indemnities of such retiring Relevant Trustee.


 


(g)           No Institutional
Trustee or Delaware Trustee shall be liable for the acts or omissions to act of
any Successor Institutional Trustee or Successor Delaware Trustee, as the case
may be.


 


(h)           The Holders of the
Capital Securities will have no right to vote to appoint, remove or replace the
Administrators, which voting rights are vested exclusively in the Holders of
the Common Securities.


 


(i)            Any successor Delaware
Trustee shall file an amendment to the Certificate of Trust with the Secretary
of State of the State of Delaware identifying the name and principal place of
business of such Delaware Trustee in the State of Delaware.


 


Section 4.6.           Vacancies
Among Trustees.  If a Trustee ceases to hold office for any
reason and the number of Trustees is not reduced pursuant to Section 4.1, a
vacancy shall occur.  A resolution
certifying the existence of such vacancy by the Trustees or, if there are more
than two, a majority of the Trustees, shall be conclusive evidence of the
existence of such vacancy.  The vacancy
shall be filled with a Trustee appointed in accordance with Section 4.5.


 


Section 4.7.           Effect
of Vacancies.  The death, resignation, retirement, removal,
bankruptcy, dissolution, liquidation, incompetence or incapacity to perform the
duties of a Trustee shall not operate to dissolve, terminate or annul the Trust
or terminate this Declaration.  Whenever
a vacancy in the number of Trustees shall occur, until such vacancy is filled
by the appointment of a Trustee in accordance with Section 4.5, the
Institutional Trustee shall have all the powers granted to the Trustees and
shall discharge all the duties imposed upon the Trustees by this Declaration.


 


Section 4.8.           Meetings
of the Trustees and the Administrators.  Meetings of the
Administrators shall be held from time to time upon the call of an
Administrator.  Regular meetings of the
Administrators may be held in person in the United States or by telephone, at a
place (if applicable) and time fixed by resolution of the Administrators.  Notice of any in-person meetings of the
Trustees with the Administrators or meetings of the Administrators shall be
hand delivered or otherwise delivered in writing (including by facsimile, with
a hard copy by overnight courier) not less than 48 hours before such
meeting.  Notice of any telephonic
meetings of the Trustees with the Administrators or meetings of the
Administrators or any committee thereof shall be hand delivered or otherwise
delivered in writing (including by facsimile, with a hard copy by overnight
courier) not less than 24 hours before a meeting.  Notices shall contain a brief statement of
the time, place and anticipated purposes of the meeting.  The presence (whether in person or by
telephone) of a Trustee or an Administrator, as the case may be, at a meeting
shall constitute a waiver of notice of such meeting except where the Trustee or
an Administrator, as the case may be, attends a meeting for the express purpose
of objecting to the transaction of any activity on the grounds that the meeting
has not been lawfully called or convened. 
Unless provided otherwise in this Declaration, any action of the
Trustees or the Administrators, as the case may be, may be taken at a meeting
by vote of a majority of the Trustees or the Administrators present (whether in
person or by telephone) and eligible to vote with respect to such matter,
provided that a Quorum is present, or without a meeting by the unanimous
written consent of the Trustees or the Administrators.  Meetings of


 


23

















 


the Trustees and the
Administrators together shall be held from time to time upon the call of any
Trustee or an Administrator.


 


Section 4.9.           Delegation
of Power.


 


(a)           Any Administrator may,
by power of attorney consistent with applicable law, delegate to any other
natural person over the age of 21 that is a U.S. Person his or her power for
the purpose of executing any documents contemplated in Section 2.6; and


 


(b)           the Administrators
shall have power to delegate from time to time to such of their number the
doing of such things and the execution of such instruments either in the name
of the Trust or the names of the Administrators or otherwise as the
Administrators may deem expedient, to the extent such delegation is not
prohibited by applicable law or contrary to the provisions of the Trust, as set
forth herein.


 


Section 4.10.        Conversion,
Consolidation or Succession to Business.  Any Person into
which the Institutional Trustee or the Delaware Trustee may be merged or
converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which the Institutional Trustee or
the Delaware Trustee shall be a party, or any Person succeeding to all or
substantially all the corporate trust business of the Institutional Trustee or
the Delaware Trustee shall be the successor of the Institutional Trustee or the
Delaware Trustee hereunder, provided such Person shall be otherwise qualified
and eligible under this Article and, provided, further, that such
Person shall file an amendment to the Certificate of Trust with the Secretary
of State of the State of Delaware as contemplated in Section 4.5(i).


 


ARTICLE
V


 


DISTRIBUTIONS


 


Section 5.1.           Distributions.  Holders
shall receive Distributions in accordance with the applicable terms of the
relevant Holder’s Securities. Distributions shall be made on the Capital
Securities and the Common Securities in accordance with the preferences set
forth in their respective terms.  If and
to the extent that the Debenture Issuer makes a payment of Interest or any
principal on the Debentures held by the Institutional Trustee, the
Institutional Trustee shall and is directed, to the extent funds are available
for that purpose, to make a distribution (a “Distribution”) of such
amounts to Holders.


 


ARTICLE
VI


 


ISSUANCE
OF SECURITIES


 


Section 6.1.           General
Provisions Regarding Securities.


 


(a)           The Administrators
shall, on behalf of the Trust, issue one series of capital securities
substantially in the form of Exhibit A-1 representing undivided beneficial
interests in the assets of the Trust having such terms as are set forth in
Annex I and one series of common securities representing undivided
beneficial interests in the assets of the Trust having such terms as are set
forth in Annex I.  The Trust shall
issue no securities or other interests in the assets of the Trust other than
the Capital Securities and the Common Securities.  The Capital Securities rank pari passu to, and payment thereon shall be made Pro Rata
with, the Common Securities except that, where an Event of Default has occurred
and is continuing, the rights of Holders of the Common Securities to payment in
respect of Distributions and payments upon liquidation, redemption and
otherwise are subordinated to the rights to payment of the Holders of the
Capital Securities as set forth in Annex I.


 


24

















 


(b)           The Certificates shall
be signed on behalf of the Trust by one or more Administrators. Such signature
shall be the facsimile or manual signature of any Administrator.  In case any Administrator of the Trust who
shall have signed any of the Securities shall cease to be such Administrator
before the Certificates so signed shall be delivered by the Trust, such
Certificates nevertheless may be delivered as though the person who signed such
Certificates had not ceased to be such Administrator, and any Certificate may
be signed on behalf of the Trust by such persons who, at the actual date of
execution of such Security, shall be an Administrator of the Trust, although at
the date of the execution and delivery of the Declaration any such person was
not such an Administrator.  A Capital
Security shall not be valid until authenticated by the facsimile or manual
signature of an Authorized Officer of the Institutional Trustee.  Such signature shall be conclusive evidence
that the Capital Security has been authenticated under this Declaration.  Upon written order of the Trust signed by one
Administrator, the Institutional Trustee shall authenticate the Capital
Securities for original issue.  The
Institutional Trustee may appoint an authenticating agent that is a U.S. Person
acceptable to the Trust to authenticate the Capital Securities.  A Common Security need not be so
authenticated.


 


(c)           The Capital Securities
issued to QIBs shall be, except as provided in Section 6.4, Book-Entry Capital
Securities issued in the form of one or more Global Capital Securities
registered in the name of the Depositary or its nominee and deposited with the
Depositary or a custodian for the Depositary for credit by the Depositary to
the respective accounts of the Depositary Participants thereof (or such other
accounts as they may direct).  The
Capital Securities issued to a Person other than a QIB shall be issued in the
form of a Definitive Capital Securities Certificate.


 


(d)           The consideration
received by the Trust for the issuance of the Securities shall constitute a
contribution to the capital of the Trust and shall not constitute a loan to the
Trust.


 


(e)           Upon issuance of the
Securities as provided in this Declaration, the Securities so issued shall be
deemed to be validly issued, fully paid and, except as provided in
Section 9.1(b) with respect to the Common Securities, non-assessable.


 


(f)            Every Person, by
virtue of having become a Holder in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Declaration and the Guarantee.


 


Section 6.2.           Paying
Agent, Transfer Agent and Registrar.  The Trust shall
maintain in Wilmington, Delaware, an office or agency where the Capital
Securities may be presented for payment (“Paying Agent”), and an office
or agency where Securities may be presented for registration of transfer or
exchange (the “Transfer Agent”). 
The Trust shall keep or cause to be kept at such office or agency a
register for the purpose of registering Securities, transfers and exchanges of
Securities, such register to be held by a registrar (the “Registrar”).  The Administrators may appoint the Paying
Agent, the Registrar and the Transfer Agent and may appoint one or more
additional Paying Agents or one or more co-Registrars, or one or more
co-Transfer Agents in such other locations as it shall determine.  The term “Paying Agent” includes any
additional paying agent, the term “Registrar” includes any additional
registrar or co-Registrar and the term “Transfer Agent” includes any
additional transfer agent.  The
Administrators may change any Paying Agent, Transfer Agent or Registrar at any
time without prior notice to any Holder. 
The Administrators shall notify the Institutional Trustee of the name
and address of any Paying Agent, Transfer Agent and Registrar not a party to
this Declaration.  The Administrators
hereby initially appoint the Institutional Trustee to act as Paying Agent,
Transfer Agent and Registrar for the Capital Securities and the Common
Securities.  The Institutional Trustee or
any of its Affiliates in the United States may act as Paying Agent, Transfer
Agent or Registrar.


 


Section 6.3.           Form
and Dating.  The Capital Securities and the Institutional
Trustee’s certificate of authentication thereon shall be substantially in the
form of Exhibit A-1, and the Common


 


25

















 


Securities
shall be substantially in the form of Exhibit A-2, each of which is hereby
incorporated in and expressly made a part of this Declaration.  Certificates may be typed, printed,
lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Administrators, as conclusively evidenced by their
execution thereof.  The Securities may
have letters, numbers, notations or other marks of identification or
designation and such legends or endorsements required by law, stock exchange
rule, agreements to which the Trust is subject if any, or usage (provided that
any such notation, legend or endorsement is in a form acceptable to the
Sponsor).  The Trust at the direction of
the Sponsor shall furnish any such legend not contained in Exhibit A-1 to
the Institutional Trustee in writing. 
Each Capital Security shall be dated on or before the date of its authentication.  The terms and provisions of the Securities
set forth in Annex I and the forms of Securities set forth in Exhibits A-1
and A-2 are part of the terms of this Declaration and to the extent applicable,
the Institutional Trustee, the Delaware Trustee, the Administrators and the
Sponsor, by their execution and delivery of this Declaration, expressly agree
to such terms and provisions and to be bound thereby.  Capital Securities will be issued only in
blocks having a stated liquidation amount of not less than $100,000.00 and any
multiple of $1,000.00 in excess thereof.


 


The Capital Securities are being offered and sold by the Trust pursuant
to the Placement Agreement in definitive, registered form without coupons and
with the Restricted Securities Legend.


 


Section 6.4.           Book-Entry
Capital Securities.


 


(a)           A Global Capital
Security may be exchanged, in whole or in part, for Definitive Capital
Securities Certificates registered in the names of Owners only if such exchange
complies with Article VIII and (i) the Depositary advises the Administrators
and the Institutional Trustee in writing that the Depositary is no longer
willing or able to properly discharge its responsibilities with respect to the
Global Capital Security, and no qualified successor is appointed by the
Administrators within ninety (90) days of receipt of such notice, (ii) the
Depositary ceases to be a clearing agency registered under the Exchange Act and
the Administrators fail to appoint a qualified successor within ninety (90)
days of obtaining knowledge of such event, (iii) the Administrators at their
option advise the Institutional Trustee in writing that the Trust elects to
terminate the book-entry system through the Depositary, or (iv) an Indenture
Event of Default has occurred and is continuing.  Upon the occurrence of any event specified in
clause (i), (ii), (iii) or (iv) above, the Administrators shall notify the
Depositary and instruct the Depositary to notify all Owners of Book-Entry
Capital Securities and the Institutional Trustee of the occurrence of such
event and of the availability of Definitive Capital Securities Certificates to
Owners of the Capital Securities requesting the same.  Upon the issuance of Definitive Capital
Securities Certificates, the Administrators and the Institutional Trustee shall
recognize the Holders of the Definitive Capital Securities Certificates as
Holders.  Notwithstanding the foregoing,
if an Owner of a beneficial interest in a Global Capital Security wishes at any
time to transfer an interest in such Global Capital Security to a Person other
than a QIB, such transfer shall be effected, subject to the Applicable
Depositary Procedures, in accordance with the provisions of this Section 6.4
and Article VIII, and the transferee shall receive a Definitive Capital
Securities Certificate in connection with such transfer.  A holder of a Definitive Capital Securities
Certificate that is a QIB may upon request, and in accordance with the
provisions of this Section 6.4 and Article VIII, exchange such Definitive Capital
Securities Certificate for a beneficial interest in a Global Capital Security.


 


(b)           If any Global Capital
Security is to be exchanged for Definitive Capital Securities Certificates or
canceled in part, or if any Definitive Capital Securities Certificate is to be
exchanged in whole or in part for any Global Capital Security, then either (i)
such Global Capital Security shall be so surrendered for exchange or
cancellation as provided in this Section 6.4 and Article VIII or (ii) the
aggregate liquidation amount represented by such Global Capital Security shall
be reduced, subject to Section 6.3, or increased by an amount equal to the
liquidation amount represented by that portion of the


 


26

















 


Global Capital Security
to be so exchanged or canceled, or equal to the liquidation amount represented
by such Definitive Capital Securities Certificates to be so exchanged for any
Global Capital Security, as the case may be, by means of an appropriate
adjustment made on the records of the Registrar, whereupon the Institutional
Trustee, in accordance with the Applicable Depositary Procedures, shall
instruct the Depositary or its authorized representative to make a
corresponding adjustment to its records. Upon any such surrender to the
Administrators or the Registrar of any Global Capital Security or Securities by
the Depositary, accompanied by registration instructions, the Administrators,
or any one of them, shall execute the Definitive Capital Securities
Certificates in accordance with the instructions of the Depositary.  None of the Registrar, Administrators, or the
Institutional Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be fully protected in
relying on, such instructions.


 


(c)           Every Definitive
Capital Securities Certificate executed and delivered upon registration or
transfer of, or in exchange for or in lieu of, a Global Capital Security or any
portion thereof shall be executed and delivered in the form of, and shall be, a
Global Capital Security, unless such Definitive Capital Securities Certificate
is registered in the name of a Person other than the Depositary for such Global
Capital Security or a nominee thereof.


 


(d)           The Depositary or its
nominee, as registered owner of a Global Capital Security, shall be the Holder
of such Global Capital Security for all purposes under this Declaration and the
Global Capital Security, and Owners with respect to a Global Capital Security
shall hold such interests pursuant to the Applicable Depositary
Procedures.  The Registrar, the
Administrators and the Institutional Trustee shall be entitled to deal with the
Depositary for all purposes of this Declaration relating to the Global Capital
Securities (including the payment of the liquidation amount of and
Distributions on the Book-Entry Capital Securities represented thereby and the
giving of instructions or directions by Owners of Book-Entry Capital Securities
represented thereby and the giving of notices) as the sole Holder of the
Book-Entry Capital Securities represented thereby and shall have no obligations
to the Owners thereof.  None of the
Administrators, the Institutional Trustee nor the Registrar shall have any
liability in respect of any transfers effected by the Depositary.


 


(e)           The rights of the
Owners of the Book-Entry Capital Securities shall be exercised only through the
Depositary and shall be limited to those established by law, the Applicable
Depositary Procedures and agreements between such Owners and the Depositary
and/or the Depositary Participants; provided, however, solely for the purpose
of determining whether the Holders of the requisite amount of Capital
Securities have voted on any matter provided for in this Declaration, to the
extent that Capital Securities are represented by a Global Capital Security,
the Administrators and the Institutional Trustee may conclusively rely on, and
shall be fully protected in relying on, any written instrument (including a
proxy) delivered to the Institutional Trustee by the Depositary setting forth
the Owners’ votes or assigning the right to vote on any matter to any other
Persons either in whole or in part.  To
the extent that Capital Securities are represented by a Global Capital
Security, the initial Depositary will make book-entry transfers among the
Depositary Participants and receive and transmit payments on the Capital
Securities that are represented by a Global Capital Security to such Depositary
Participants, and none of the Sponsor, the Administrators or the Institutional
Trustee shall have any responsibility or obligation with respect thereto.


 


(f)            To the extent that a
notice or other communication to the Holders is required under this
Declaration, for so long as Capital Securities are represented by a Global
Capital Security, the Administrator and the Institutional Trustee shall give
all such notices and communications to the Depositary, and shall have no
obligations to the Owners.


 


27

















 


Section 6.5.           Mutilated,
Destroyed, Lost or Stolen Certificates.


 


If:


 


(a)           any mutilated
Certificates should be surrendered to the Registrar, or if the Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Certificate; and


 


(b)           there shall be
delivered to the Registrar, the Administrators and the Institutional Trustee
such security or indemnity as may be required by them to keep each of them
harmless;


 


then, in the absence of notice that such Certificate
shall have been acquired by a protected purchaser, an Administrator on behalf
of the Trust shall execute (and in the case of a Capital Security Certificate,
the Institutional Trustee shall authenticate) and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like denomination.  In
connection with the issuance of any new Certificate under this
Section 6.5, the Registrar or the Administrators may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith.  Any
duplicate Certificate issued pursuant to this Section shall constitute
conclusive evidence of an ownership interest in the relevant Securities, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.


 


Section 6.6.           Temporary
Securities.  Until definitive Securities are ready for
delivery, the Administrators may prepare and, in the case of the Capital
Securities, the Institutional Trustee shall authenticate, temporary
Securities.  Temporary Securities shall
be substantially in the form of definitive Securities but may have variations
that the Administrators consider appropriate for temporary Securities.  Without unreasonable delay, the
Administrators shall prepare and, in the case of the Capital Securities, the
Institutional Trustee shall authenticate, definitive Securities in exchange for
temporary Securities.


 


Section 6.7.           Cancellation.  The
Administrators at any time may deliver Securities to the Institutional Trustee
for cancellation.  The Registrar shall
forward to the Institutional Trustee any Securities surrendered to it for
registration of transfer, redemption or payment.  The Institutional Trustee shall promptly
cancel all Securities surrendered for registration of transfer, payment,
replacement or cancellation and shall dispose of such canceled Securities as
the Administrators direct.  The
Administrators may not issue new Securities to replace Securities that have
been paid or that have been delivered to the Institutional Trustee for
cancellation.


 


Section 6.8.           CUSIP
Numbers.  The Trust in issuing the Securities may use “CUSIP”
numbers (if then generally in use), and, if so, the Institutional Trustee shall
use CUSIP numbers in notice of redemption as a convenience to Holders; provided,
however, that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Securities or as
contained in any notice of redemption and that identification numbers printed
on the Securities and any such redemption shall not be affected by any defect
in or omission of such numbers.  The
Trust shall promptly notify the Institutional Trustee in writing of any change
in the CUSIP numbers.


 


Section 6.9.           Rights
of Holders; Waivers of Past Defaults.


 


(a)           The legal title to the
Trust Property is vested exclusively in the Institutional Trustee (in its
capacity as such) in accordance with Section 2.5, and the Holders shall not
have any right or title therein other than the undivided beneficial interest in
the assets of the Trust conferred by their Securities and they shall have no
right to call for any partition or division of property, profits or rights of
the Trust except as described below.  The
Securities shall be personal property giving only the rights specifically set
forth therein and in this Declaration. 
The Securities shall have no preemptive or similar rights.


 


(b)           For so long as any
Capital Securities remain outstanding, if upon an Acceleration Event of
Default, the Debenture Trustee fails or the holders of not less than 25% in
principal amount of the


 


28

















 


outstanding
Debentures fail to declare the principal of all of the Debentures to be
immediately due and payable, the Holders of a Majority in liquidation amount of
the Capital Securities then outstanding shall have the right to make such
declaration by a notice in writing to the Institutional Trustee, the Sponsor
and the Debenture Trustee.


 


At any time after a declaration of acceleration with respect to the
Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Debenture Trustee as provided in the
Indenture, if the Institutional Trustee, subject to the provisions hereof,
fails to annul any such declaration and waive such default, the Holders of a
Majority in liquidation amount of the Capital Securities, by written notice to
the Institutional Trustee, the Sponsor and the Debenture Trustee, may rescind
and annul such declaration and its consequences if:


 


(i)            the
Debenture Issuer has paid or deposited with the Debenture Trustee a sum
sufficient to pay


 


(A) all overdue
installments of interest on all of the Debentures,


 


(B) any accrued
Additional Interest on all of the Debentures,


 


(C) the principal
of (and premium, if any, on) any Debentures that have become due otherwise than
by such declaration of acceleration and interest and Additional Interest
thereon at the rate borne by the Debentures, and


 


(D) all sums paid
or advanced by the Debenture Trustee under the Indenture and the reasonable
compensation, expenses, disbursements and advances of the Debenture Trustee and
the Institutional Trustee, their agents and counsel; and


 


(ii)           all
Events of Default with respect to the Debentures, other than the non-payment of
the principal of the Debentures that has become due solely by such
acceleration, have been cured or waived as provided in Section 5.7 of the
Indenture.


 


The Holders of at least a Majority in liquidation amount of the Capital
Securities may, on behalf of the Holders of all the Capital Securities, waive
any past default under the Indenture or any Indenture Event of Default, except
a default or Indenture Event of Default in the payment of principal or interest
on the Debentures (unless such default or Indenture Event of Default has been
cured and a sum sufficient to pay all matured installments of interest and
principal due otherwise than by acceleration has been deposited with the
Debenture Trustee) or a default under the Indenture or an Indenture Event of
Default in respect of a covenant or provision that under the Indenture cannot
be modified or amended without the consent of the holder of each outstanding
Debenture.  No such rescission shall
affect any subsequent default or impair any right consequent thereon.


 


Upon receipt by the Institutional Trustee of written notice declaring
such an acceleration, or rescission and annulment thereof, by Holders of any
part of the Capital Securities, a record date shall be established for
determining Holders of outstanding Capital Securities entitled to join in such
notice, which record date shall be at the close of business on the day the
Institutional Trustee receives such notice. 
The Holders on such record date, or their duly designated proxies, and
only such Persons, shall be entitled to join in such notice, whether or not
such Holders remain Holders after such record date; provided, that
unless such declaration of acceleration, or rescission and annulment, as the
case may be, shall have become effective by virtue of the requisite percentage
having joined in such notice prior to the day that is 90 days after such
record date, such notice of declaration of acceleration, or rescission and
annulment, as the case may be, shall automatically and without further action
by any Holder be canceled and of no further effect.  Nothing in this paragraph shall prevent a
Holder, or a proxy of a Holder, from giving, after


 


29

















 


expiration of such 90-day period, a new written notice
of declaration of acceleration, or rescission and annulment thereof, as the
case may be, that is identical to a written notice that has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 6.8.


 


(c)           Except as otherwise
provided in paragraphs (a) and (b) of this Section 6.8, the Holders of at
least a Majority in liquidation amount of the Capital Securities may, on behalf
of the Holders of all the Capital Securities, waive any past default or Event
of Default and its consequences.  Upon
such waiver, any such default or Event of Default shall cease to exist, and any
default or Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Declaration, but no such waiver shall extend
to any subsequent or other default or Event of Default or impair any right
consequent thereon.


 


ARTICLE
VII


 


DISSOLUTION
AND TERMINATION OF TRUST


 


Section 7.1.           Dissolution
and Termination of Trust.


 


(a)           The Trust shall
dissolve on the first to occur of:


 


(i)            unless
earlier dissolved, on June 15, 2041, the expiration of the term of the
Trust;


 


(ii)           upon
a Bankruptcy Event with respect to the Sponsor, the Trust or the Debenture
Issuer;


 


(iii)          upon
the filing of a certificate of dissolution or its equivalent with respect to
the Sponsor (other than in connection with a merger, consolidation or similar
transaction not prohibited by the Indenture, this Declaration or the Guarantee,
as the case may be) or upon the revocation of the charter of the Sponsor and
the expiration of 90 days after the date of revocation without a
reinstatement thereof;


 


(iv)          upon
the distribution of the Debentures to the Holders of the Securities, upon
exercise of the right of the Holder of all of the outstanding Common Securities
to dissolve the Trust as provided in Annex I hereto;


 


(v)           upon
the entry of a decree of judicial dissolution of the Holder of the Common
Securities, the Sponsor, the Trust or the Debenture Issuer;


 


(vi)          when
all of the Securities shall have been called for redemption and the amounts
necessary for redemption thereof shall have been paid to the Holders in
accordance with the terms of the Securities; or


 


(vii)         before
the issuance of any Securities, with the consent of all of the Trustees and the
Sponsor.


 


(b)           As soon as is
practicable after the occurrence of an event referred to in Section 7.1(a), and
after satisfaction of liabilities to creditors of the Trust as required by
applicable law, including of the Statutory Trust Act, and subject to the terms
set forth in Annex I, the Institutional Trustee shall terminate the Trust
by filing a certificate of cancellation with the Secretary of State of the
State of Delaware.


 


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(c)           The provisions of
Section 2.9 and Article IX shall survive the termination of the
Trust.


 


ARTICLE
VIII


 


TRANSFER
OF INTERESTS


 


Section 8.1.           General.


 


(a)           Subject to Section
8.1(c), where Capital Securities are presented to the Registrar or a
co-registrar with a request to register a transfer or to exchange them for an
equal number of Capital Securities represented by different certificates, the
Registrar shall register the transfer or make the exchange if its requirements
for such transactions are met.  To permit
registrations of transfer and exchanges, the Trust shall issue and the
Institutional Trustee shall authenticate Capital Securities at the Registrar’s
request.


 


(b)           Upon issuance of the
Common Securities, the Sponsor shall acquire and retain beneficial and record
ownership of the Common Securities and for so long as the Securities remain
outstanding, and to the fullest extent permitted by applicable law, the Sponsor
shall maintain 100% ownership of the Common Securities; provided, however,
that any permitted successor of the Sponsor, in its capacity as Debenture
Issuer, under the Indenture that is a U.S. Person may succeed to the Sponsor’s
ownership of the Common Securities.


 


(c)           Capital Securities may only
be transferred, in whole or in part, in accordance with the terms and
conditions set forth in this Declaration and in the terms of the
Securities.  To the fullest extent
permitted by applicable law, any transfer or purported transfer of any Security
not made in accordance with this Declaration shall be null and void and will be
deemed to be of no legal effect whatsoever and any such transferee shall be
deemed not to be the holder of such Capital Securities for any purpose,
including but not limited to the receipt of Distributions on such Capital
Securities, and such transferee shall be deemed to have no interest whatsoever
in such Capital Securities.


 


(d)           The Registrar shall
provide for the registration of Securities and of transfers of Securities, which
will be effected without charge but only upon payment (with such indemnity as
the Registrar may require) in respect of any tax or other governmental charges
that may be imposed in relation to it. 
Upon surrender for registration of transfer of any Securities, the
Registrar shall cause one or more new Securities of the same tenor to be issued
in the name of the designated transferee or transferees.  Every Security surrendered for registration
of transfer shall be accompanied by a written instrument of transfer in form
satisfactory to the Registrar duly executed by the Holder or such Holder’s
attorney duly authorized in writing. 
Each Security surrendered for registration of transfer shall be canceled
by the Institutional Trustee pursuant to Section 6.7.  A transferee of a Security shall be entitled
to the rights and subject to the obligations of a Holder hereunder upon the
receipt by such transferee of a Security. 
By acceptance of a Security, each transferee shall be deemed to have
agreed to be bound by this Declaration.


 


(e)           The Trust shall not be
required (i) to issue, register the transfer of, or exchange any
Securities during a period beginning at the opening of business
fifteen days before the day of any selection of Securities for redemption
and ending at the close of business on the earliest date on which the relevant
notice of redemption is deemed to have been given to all Holders of the
Securities to be redeemed, or (ii) to register the transfer or exchange of
any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.


 


31

















 


Section 8.2.           Transfer
Procedures and Restrictions.


 


(a)           The Capital Securities
shall bear the Restricted Securities Legend, which shall not be removed unless
there is delivered to the Trust such satisfactory evidence, which may include
an opinion of counsel satisfactory to the Institutional Trustee, as may be
reasonably required by the Trust, that neither the legend nor the restrictions
on transfer set forth therein are required to ensure that transfers thereof
comply with the provisions of the Securities Act.  Upon provision of such satisfactory evidence,
the Institutional Trustee, at the written direction of the Trust, shall
authenticate and deliver Capital Securities that do not bear the legend.


 


(b)           Except as permitted by
Section 8.2(a), each Capital Security shall bear a legend (the “Restricted
Securities Legend”) in substantially the following form and a Capital
Security shall not be transferred except in compliance with such legend, unless
otherwise determined by the Sponsor, upon the advice of counsel expert in
securities law, in accordance with applicable law:


 


[If the Capital Security is to be Global Capital Security-
THIS CAPITAL SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
DECLARATION HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY (“DTC”) OR A NOMINEE OF DTC.  THIS CAPITAL SECURITY IS EXCHANGEABLE FOR
CAPITAL SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE DECLARATION, AND NO
TRANSFER OF THIS CAPITAL SECURITY (OTHER THAN A TRANSFER OF THIS CAPITAL
SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR
ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.


 


UNLESS
THIS CAPITAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO FIRST REGIONAL STATUTORY
TRUST VI OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CAPITAL SECURITY ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]


 


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 SPONSOR OR THE


 


32

















 


TRUST, (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 CAPITAL 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 SPONSOR’S AND THE TRUST’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 EACH OF THEM IN ACCORDANCE WITH THE DECLARATION OF
TRUST, A COPY OF WHICH MAY BE OBTAINED FROM THE SPONSOR OR THE TRUST.  HEDGING TRANSACTIONS INVOLVING THIS SECURITY
MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.


 


THE HOLDER OF THIS
SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT
IS NOT AN EMPLOYEE BENEFIT, 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 THE
SECURITIES OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE
FOR 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 IS NOT
PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO
SUCH PURCHASE OR 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 WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO
WHICH SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING
ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY
USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE,
OR (ii) SUCH PURCHASE WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION
406 OF ERISA OR SECTION 4975


 


33

















 


OF THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR
ADMINISTRATIVE EXEMPTION.


 


THIS SECURITY WILL
BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT OF
NOT LESS THAN $100,000.00 (100 SECURITIES) AND MULTIPLES OF $1,000.00 IN EXCESS
THEREOF.  ANY ATTEMPTED TRANSFER OF
SECURITIES IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN $100,000.00
SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.


 


THE HOLDER OF THIS
SECURITY AGREES THAT IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS.


 


(c)           To permit registrations
of transfers and exchanges, the Trust shall execute and the Institutional
Trustee shall authenticate Capital Securities at the Registrar’s request.


 


(d)           Registrations of
transfers or exchanges will be effected without charge, but only upon payment
(with such indemnity as the Registrar or the Sponsor may require) in respect of
any tax or other governmental charge that may be imposed in relation to it.


 


(e)           All Capital Securities
issued upon any registration of transfer or exchange pursuant to the terms of
this Declaration shall evidence the same security and shall be entitled to the
same benefits under this Declaration as the Capital Securities surrendered upon
such registration of transfer or exchange.


 


Section 8.3.           Deemed
Security Holders.  The Trust, the Administrators, the
Trustees, the Paying Agent, the Transfer Agent or the Registrar may treat the
Person in whose name any Certificate shall be registered on the books and
records of the Trust as the sole holder of such Certificate and of the
Securities represented by such Certificate for purposes of receiving Distributions
and for all other purposes whatsoever and, accordingly, shall not be bound to
recognize any equitable or other claim to or interest in such Certificate or in
the Securities represented by such Certificate on the part of any Person,
whether or not the Trust, the Administrators, the Trustees, the Paying Agent,
the Transfer Agent or the Registrar shall have actual or other notice thereof.


 


ARTICLE
IX


 


LIMITATION
OF LIABILITY OF

HOLDERS OF SECURITIES, INSTITUTIONAL TRUSTEE OR OTHERS


 


Section 9.1.           Liability.


 


(a)           Except as expressly set
forth in this Declaration, the Guarantee and the terms of the Securities, the
Sponsor shall not be:


 


(i)            personally
liable for the return of any portion of the capital contributions (or any
return thereon) of the Holders of the Securities which shall be made solely
from assets of the Trust; or


 


(ii)           required
to pay to the Trust or to any Holder of the Securities any deficit upon
dissolution of the Trust or otherwise.


 


34

















 


(b)           The Holder of the
Common Securities shall be liable for all of the debts and obligations of the
Trust (other than with respect to the Securities) to the extent not satisfied
out of the Trust’s assets.


 


(c)           Pursuant to the
Statutory Trust Act, the Holders of the Capital Securities shall be entitled to
the same limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the
State of Delaware.


 


Section 9.2.           Exculpation.


 


(a)           No Indemnified Person
shall be liable, responsible or accountable in damages or otherwise to the
Trust or any Covered Person for any loss, damage or claim incurred by reason of
any act or omission performed or omitted by such Indemnified Person in good
faith on behalf of the Trust and in a manner such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such Indemnified
Person by this Declaration or by law, except that an Indemnified Person shall
be liable for any such loss, damage or claim incurred by reason of such
Indemnified Person’s negligence or willful misconduct with respect to such acts
or omissions.


 


(b)           An Indemnified Person
shall be fully protected in relying in good faith upon the records of the Trust
and upon such information, opinions, reports or statements presented to the
Trust by any Person as to matters the Indemnified Person reasonably believes
are within such other Person’s professional or expert competence and, if
selected by such Indemnified Person, has been selected by such Indemnified
Person with reasonable care by or on behalf of the Trust, including
information, opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses, or any other facts pertinent to the existence
and amount of assets from which Distributions to Holders of Securities might
properly be paid.


 


Section 9.3.           Fiduciary
Duty.


 


(a)           To the extent that, at
law or in equity, an Indemnified Person has duties (including fiduciary duties)
and liabilities relating thereto to the Trust or to any other Covered Person,
an Indemnified Person acting under this Declaration shall not be liable to the
Trust or to any other Covered Person for its good faith reliance on the
provisions of this Declaration.  The
provisions of this Declaration, to the extent that they restrict the duties and
liabilities of an Indemnified Person otherwise existing at law or in equity,
are agreed by the parties hereto to replace such other duties and liabilities
of the Indemnified Person.


 


(b)           Whenever in this
Declaration an Indemnified Person is permitted or required to make a decision:


 


(i)            in
its “discretion” or under a grant of similar authority, the Indemnified Person
shall be entitled to consider such interests and factors as it desires,
including its own interests, and shall have no duty or obligation to give any
consideration to any interest of or factors affecting the Trust or any other
Person; or


 


(ii)           in
its “good faith” or under another express standard, the Indemnified Person shall
act under such express standard and shall not be subject to any other or
different standard imposed by this Declaration or by applicable law.


 


Section 9.4.           Indemnification.


 


(a)           The Sponsor shall
indemnify, to the full extent permitted by law, any Indemnified Person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed


 


35

















 


action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Trust) arising out of or in connection
with the acceptance or administration of this Declaration by reason of the fact
that he is or was an Indemnified Person against expenses (including reasonable
attorneys’ fees and expenses), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Trust, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful.  The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the Indemnified
Person did not act in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the Trust, and, with respect
to any criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.


 


(b)           The Sponsor shall
indemnify, to the full extent permitted by law, any Indemnified Person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Trust to procure a judgment
in its favor arising out of or in connection with the acceptance or
administration of this Declaration by reason of the fact that he is or was an
Indemnified Person against expenses (including reasonable attorneys’ fees and
expenses) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Trust; provided, however, that no such indemnification shall
be made in respect of any claim, issue or matter as to which such Indemnified
Person shall have been adjudged to be liable to the Trust unless and only to
the extent that the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem proper.


 


(c)           To the extent that an
Indemnified Person shall be successful on the merits or otherwise (including
dismissal of an action without prejudice or the settlement of an action without
admission of liability) in defense of any action, suit or proceeding referred
to in paragraphs (a) and (b) of this Section 9.4, or in defense of any
claim, issue or matter therein, he shall be indemnified, to the full extent
permitted by law, against expenses (including attorneys’ fees and expenses)
actually and reasonably incurred by him in connection therewith.


 


(d)           Any indemnification of
an Administrator under paragraphs (a) and (b) of this Section 9.4 (unless
ordered by a court) shall be made by the Sponsor only as authorized in the
specific case upon a determination that indemnification of the Indemnified
Person is proper in the circumstances because he has met the applicable
standard of conduct set forth in paragraphs (a) and (b).  Such determination shall be made (i) by
the Administrators by a majority vote of a Quorum consisting of such
Administrators who were not parties to such action, suit or proceeding,
(ii) if such a Quorum is not obtainable, or, even if obtainable, if a
Quorum of disinterested Administrators so directs, by independent legal counsel
in a written opinion, or (iii) by the Common Security Holder of the Trust.


 


(e)           To the fullest extent
permitted by law, expenses (including reasonable attorneys’ fees and expenses)
incurred by an Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding referred to in
paragraphs (a) and (b) of this Section 9.4 shall be paid by the Sponsor in
advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such Indemnified Person to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Sponsor as authorized in this Section 9.4.  Notwithstanding the foregoing, no advance
shall be made by the Sponsor if a determination is reasonably and promptly made
(i) by the Administrators by a majority vote of a Quorum of disinterested
Administrators, (ii) if such a Quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested


 


36

















 


Administrators so
directs, by independent legal counsel in a written opinion or (iii) by the
Common Security Holder of the Trust, that, based upon the facts known to the
Administrators, counsel or the Common Security Holder at the time such
determination is made, such Indemnified Person acted in bad faith or in a
manner that such Indemnified Person did not believe to be in the best interests
of the Trust, or, with respect to any criminal proceeding, that such
Indemnified Person believed or had reasonable cause to believe his conduct was
unlawful.  In no event shall any advance
be made in instances where the Administrators, independent legal counsel or the
Common Security Holder reasonably determine that such Indemnified Person
deliberately breached his duty to the Trust or its Common or Capital Security
Holders.


 


(f)            The Trustees, at the
sole cost and expense of the Sponsor, retain the right to representation by
counsel of their own choosing in any action, suit or any other proceeding for
which they are indemnified under paragraphs (a) and (b) of this Section
9.4, without affecting their right to indemnification hereunder or waiving any
rights afforded to it under this Declaration or applicable law.


 


(g)           The indemnification and
advancement of expenses provided by, or granted pursuant to, the other
paragraphs of this Section 9.4 shall not be deemed exclusive of any other
rights to which those seeking indemnification and advancement of expenses may
be entitled under any agreement, vote of stockholders or disinterested
directors of the Sponsor or Capital Security Holders of the Trust or otherwise,
both as to action in his official capacity and as to action in another capacity
while holding such office.  All rights to
indemnification under this Section 9.4 shall be deemed to be provided by a
contract between the Sponsor and each Indemnified Person who serves in such
capacity at any time while this Section 9.4 is in effect.  Any repeal or modification of this Section
9.4 shall not affect any rights or obligations then existing.


 


(h)           The Sponsor or the
Trust may purchase and maintain insurance on behalf of any Person who is or was
an Indemnified Person against any liability asserted against him and incurred
by him in any such capacity, or arising out of his status as such, whether or
not the Sponsor would have the power to indemnify him against such liability
under the provisions of this Section 9.4.


 


(i)            For purposes of this
Section 9.4, references to “the Trust” shall include, in addition to the
resulting or surviving entity, any constituent entity (including any
constituent of a constituent) absorbed in a consolidation or merger, so that
any Person who is or was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request of such constituent
entity as a director, trustee, officer, employee or agent of another entity,
shall stand in the same position under the provisions of this Section 9.4 with
respect to the resulting or surviving entity as he would have with respect to
such constituent entity if its separate existence had continued.


 


(j)            The indemnification
and advancement of expenses provided by, or granted pursuant to, this Section
9.4 shall, unless otherwise provided when authorized or ratified,
(i) continue as to a Person who has ceased to be an Indemnified Person and
shall inure to the benefit of the heirs, executors and administrators of such a
Person; and (ii) survive the termination or expiration of this Declaration
or the earlier removal or resignation of an Indemnified Person.


 


Section 9.5.           Outside
Businesses.  Any Covered Person, the Sponsor, the Delaware
Trustee and the Institutional Trustee may engage in or possess an interest in
other business ventures of any nature or description, independently or with
others, similar or dissimilar to the business of the Trust, and the Trust and
the Holders of Securities shall have no rights by virtue of this Declaration in
and to such independent ventures or the income or profits derived therefrom,
and the pursuit of any such venture, even if competitive with the business of
the Trust, shall not be deemed wrongful or improper.  None of any Covered Person, the Sponsor, the
Delaware Trustee or the Institutional Trustee shall be obligated to present any
particular investment or other opportunity to the Trust even if such
opportunity is of a


 


37

















 


character that, if presented to
the Trust, could be taken by the Trust, and any Covered Person, the Sponsor,
the Delaware Trustee and the Institutional Trustee shall have the right to take
for its own account (individually or as a partner or fiduciary) or to recommend
to others any such particular investment or other opportunity.  Any Covered Person, the Delaware Trustee and
the Institutional Trustee may engage or be interested in any financial or other
transaction with the Sponsor or any Affiliate of the Sponsor, or may act as
depositary for, trustee or agent for, or act on any committee or body of
holders of, securities or other obligations of the Sponsor or its Affiliates.


 


Section 9.6.           Compensation;
Fee.  The Sponsor agrees:


 


(a)           to pay to the Trustees
from time to time such compensation for all services rendered by them hereunder
as the parties shall agree from time to time (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust); and


 


(b)           except as otherwise
expressly provided herein, to reimburse the Trustees upon request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustees in accordance with any provision of this Declaration (including the
reasonable compensation and the expenses and disbursements of their respective agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence, bad faith or willful misconduct.


 


For purposes of clarification, this Section 9.6 does not
contemplate the payment by the Sponsor of acceptance or annual administration
fees owing to the Trustees under this Declaration or the fees and expenses of
the Trustees’ counsel in connection with the closing of the transactions
contemplated by this Declaration.


 


The provisions of this Section 9.6 shall survive the dissolution of the
Trust and the termination of this Declaration and the removal or resignation of
any Trustee.


 


No Trustee may claim any lien or charge on any property of the Trust as
a result of any amount due pursuant to this Section 9.6.


 


ARTICLE
X


 


ACCOUNTING


 


Section 10.1.        Fiscal
Year.  The fiscal year (“Fiscal Year”) of the Trust
shall be the calendar year, or such other year as is required by the Code.


 


Section 10.2.        Certain
Accounting Matters.  


 


(a)           At all times during the
existence of the Trust, the Administrators shall keep, or cause to be kept at
the principal office of the Trust in the United States, as defined for purposes
of Treasury Regulations section 301.7701-7, full books of account, records and
supporting documents, which shall reflect in reasonable detail each transaction
of the Trust.  The books of account shall
be maintained, at the Sponsor’s expense, in accordance with generally accepted
accounting principles, consistently applied. 
The books of account and the records of the Trust shall be examined by
and reported upon (either separately or as part of the Sponsor’s regularly
prepared consolidated financial report) as of the end of each Fiscal Year of
the Trust by a firm of independent certified public accountants selected by the
Administrators.


 


(b)           The Administrators
shall cause to be duly prepared and delivered to each of the Holders of
Securities Form 1099 or such other annual United States federal income tax
information statement


 


38

















 


required by the
Code, containing such information with regard to the Securities held by each
Holder as is required by the Code and the Treasury Regulations.  Notwithstanding any right under the Code to
deliver any such statement at a later date, the Administrators shall endeavor
to deliver all such statements within 30 days after the end of each Fiscal
Year of the Trust.


 


(c)           The Administrators, at
the Sponsor’s expense, shall cause to be duly prepared at the principal office
of the Sponsor in the United States, as ‘United States’ is defined in
Section 7701(a)(9) of the Code (or at the principal office of the Trust if
the Sponsor has no such principal office in the United States), and filed an
annual United States federal income tax return on a Form 1041 or such other
form required by United States federal income tax law, and any other annual
income tax returns required to be filed by the Administrators on behalf of the
Trust with any state or local taxing authority.


 


Section 10.3.        Banking.  The
Trust shall maintain in the United States, as defined for purposes of Treasury
Regulations section 301.7701-7, one or more bank accounts in the name and for
the sole benefit of the Trust; provided, however, that all
payments of funds in respect of the Debentures held by the Institutional
Trustee shall be made directly to the Property Account and no other funds of
the Trust shall be deposited in the Property Account.  The sole signatories for such accounts
(including the Property Account) shall be designated by the Institutional
Trustee.


 


Section 10.4.        Withholding.  The
Institutional Trustee or any Paying Agent and the Administrators shall comply
with all withholding requirements under United States federal, state and local
law.  The Institutional Trustee or any Paying
Agent shall request, and each Holder shall provide to the Institutional Trustee
or any Paying Agent, such forms or certificates as are necessary to establish
an exemption from withholding with respect to the Holder, and any
representations and forms as shall reasonably be requested by the Institutional
Trustee or any Paying Agent to assist it in determining the extent of, and in
fulfilling, its withholding obligations. 
The Administrators shall file required forms with applicable
jurisdictions and, unless an exemption from withholding is properly established
by a Holder, shall remit amounts withheld with respect to the Holder to
applicable jurisdictions.  To the extent
that the Institutional Trustee or any Paying Agent is required to withhold and
pay over any amounts to any authority with respect to distributions or
allocations to any Holder, the amount withheld shall be deemed to be a
Distribution in the amount of the withholding to the Holder.  In the event of any claimed overwithholding,
Holders shall be limited to an action against the applicable jurisdiction.  If the amount required to be withheld was not
withheld from actual Distributions made, the Institutional Trustee or any
Paying Agent may reduce subsequent Distributions by the amount of such withholding.


 


ARTICLE
XI


 


AMENDMENTS
AND MEETINGS


 


Section 11.1.        Amendments.


 


(a)           Except as otherwise
provided in this Declaration or by any applicable terms of the Securities, this
Declaration may only be amended by a written instrument approved and executed
(i) by the Institutional Trustee, or (ii) if the amendment affects
the rights, powers, duties, obligations or immunities of the Delaware Trustee,
by the Delaware Trustee.


 


(b)           Notwithstanding any
other provision of this Article XI, an amendment may be made, and any such
purported amendment shall be valid and effective only if:


 


(i)            the
Institutional Trustee shall have first received


 


39

















 


(A) an Officers’
Certificate from each of the Trust and the Sponsor that such amendment is
permitted by, and conforms to, the terms of this Declaration (including the
terms of the Securities); and


 


(B) an opinion of
counsel (who may be counsel to the Sponsor or the Trust) that such amendment is
permitted by, and conforms to, the terms of this Declaration (including the
terms of the Securities); and


 


(ii)           the
result of such amendment would not be to


 


(A) cause the
Trust to cease to be classified for purposes of United States federal income
taxation as a grantor trust; or


 


(B) cause the
Trust to be deemed to be an Investment Company required to be registered under
the Investment Company Act.


 


(c)           Except as provided in
Section 11.1(d), (e) or (h), no amendment shall be made, and any such purported
amendment shall be void and ineffective, unless the Holders of a Majority in
liquidation amount of the Capital Securities shall have consented to such
amendment.


 


(d)           In addition to and
notwithstanding any other provision in this Declaration, without the consent of
each affected Holder, this Declaration may not be amended to (i) change
the amount or timing of any Distribution on the Securities or otherwise
adversely affect the amount of any Distribution required to be made in respect
of the Securities as of a specified date or change any conversion or exchange
provisions or (ii) restrict the right of a Holder to institute suit for
the enforcement of any such payment on or after such date.


 


(e)           Sections 9.1(b)
and 9.1(c) and this Section 11.1 shall not be amended without the consent of
all of the Holders of the Securities.


 


(f)            Article III shall
not be amended without the consent of the Holders of a Majority in liquidation
amount of the Common Securities.


 


(g)           The rights of the
Holders of the Capital Securities under Article IV to appoint and remove
Trustees shall not be amended without the consent of the Holders of a Majority
in liquidation amount of the Capital Securities.


 


(h)           This Declaration may be
amended by the Institutional Trustee and the Holders of a Majority in
liquidation amount of the Common Securities without the consent of the Holders
of the Capital Securities to:


 


(i)            cure
any ambiguity;


 


(ii)           correct
or supplement any provision in this Declaration that may be defective or
inconsistent with any other provision of this Declaration;


 


(iii)          add
to the covenants, restrictions or obligations of the Sponsor; or


 


(iv)          modify,
eliminate or add to any provision of this Declaration to such extent as may be
necessary to ensure that the Trust will be classified for United States federal
income tax purposes at all times as a grantor trust and will not be required to
register as an Investment Company (including without limitation to conform to
any change in Rule 3a-5, Rule 3a-7 or any other applicable rule under
the Investment Company Act or written change in interpretation or


 


40

















 


application thereof by
any legislative body, court, government agency or regulatory authority) which
amendment does not have a material adverse effect on the rights, preferences or
privileges of the Holders of Securities;


 


provided, however, that no such modification,
elimination or addition referred to in clauses (i), (ii), (iii) or (iv)
shall adversely affect in any material respect the powers, preferences or
special rights of Holders of Capital Securities.


 


Section 11.2.        Meetings
of the Holders of Securities; Action by Written Consent.


 


(a)           Meetings of the Holders
of any class of Securities may be called at any time by the Administrators (or
as provided in the terms of the Securities) to consider and act on any matter
on which Holders of such class of Securities are entitled to act under the
terms of this Declaration or the terms of the Securities.  The Administrators shall call a meeting of
the Holders of such class if directed to do so by the Holders of at least 10%
in liquidation amount of such class of Securities.  Such direction shall be given by delivering
to the Administrators one or more calls in a writing stating that the signing
Holders of the Securities wish to call a meeting and indicating the general or
specific purpose for which the meeting is to be called.  Any Holders of the Securities calling a
meeting shall specify in writing the Certificates held by the Holders of the
Securities exercising the right to call a meeting and only those Securities
represented by such Certificates shall be counted for purposes of determining
whether the required percentage set forth in the second sentence of this
paragraph has been met.


 


(b)           Except to the extent
otherwise provided in the terms of the Securities, the following provisions
shall apply to meetings of Holders of the Securities:


 


(i)            notice
of any such meeting shall be given to all the Holders of the Securities having
a right to vote thereat at least 7 days and not more than 60 days
before the date of such meeting. 
Whenever a vote, consent or approval of the Holders of the Securities is
permitted or required under this Declaration, such vote, consent or approval
may be given at a meeting of the Holders of the Securities.  Any action that may be taken at a meeting of
the Holders of the Securities may be taken without a meeting if a consent in
writing setting forth the action so taken is signed by the Holders of the
Securities owning not less than the minimum amount of Securities in liquidation
amount that would be necessary to authorize or take such action at a meeting at
which all Holders of the Securities having a right to vote thereon were present
and voting.  Prompt notice of the taking
of action without a meeting shall be given to the Holders of the Securities
entitled to vote who have not consented in writing.  The Administrators may specify that any
written ballot submitted to the Holders of the Securities for the purpose of taking
any action without a meeting shall be returned to the Trust within the time
specified by the Administrators;


 


(ii)           each
Holder of a Security may authorize any Person to act for it by proxy on all
matters in which a Holder of Securities is entitled to participate, including
waiving notice of any meeting, or voting or participating at a meeting.  No proxy shall be valid after the expiration
of 11 months from the date thereof unless otherwise provided in the
proxy.  Every proxy shall be revocable at
the pleasure of the Holder of the Securities executing it.  Except as otherwise provided herein, all
matters relating to the giving, voting or validity of proxies shall be governed
by the General Corporation Law of the State of Delaware relating to proxies, and
judicial interpretations thereunder, as if the Trust were a Delaware
corporation and the Holders of the Securities were stockholders of a Delaware
corporation; each meeting of the Holders of the Securities shall be conducted
by the Administrators or by such other Person that the Administrators may
designate; and


 


41

















 


(iii)          unless
the Statutory Trust Act, this Declaration, or the terms of the Securities
otherwise provides, the Administrators, in their sole discretion, shall
establish all other provisions relating to meetings of Holders of Securities,
including notice of the time, place or purpose of any meeting at which any
matter is to be voted on by any Holders of the Securities, waiver of any such
notice, action by consent without a meeting, the establishment of a record
date, quorum requirements, voting in person or by proxy or any other matter
with respect to the exercise of any such right to vote; provided, however,
that each meeting shall be conducted in the United States (as that term is defined
in Treasury Regulations section 301.7701-7).


 


ARTICLE
XII


 


REPRESENTATIONS
OF INSTITUTIONAL TRUSTEE AND THE DELAWARE TRUSTEE


 


Section 12.1.        Representations
and Warranties of Institutional Trustee.  The initial
Institutional Trustee represents and warrants to the Trust and to the Sponsor
at the date of this Declaration, and each Successor Institutional Trustee
represents and warrants to the Trust and the Sponsor at the time of the
Successor Institutional Trustee’s acceptance of its appointment as Institutional
Trustee, that:


 


(a)           the Institutional
Trustee is a Delaware banking corporation with trust powers, duly organized and
validly existing under the laws of the State of Delaware with trust power and
authority to execute and deliver, and to carry out and perform its obligations
under the terms of, this Declaration;


 


(b)           the execution, delivery
and performance by the Institutional Trustee of this Declaration has been duly
authorized by all necessary corporate action on the part of the Institutional
Trustee.  This Declaration has been duly
executed and delivered by the Institutional Trustee, and it constitutes a
legal, valid and binding obligation of the Institutional Trustee, enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors’ rights generally and to general principles of equity (regardless of
whether considered in a proceeding in equity or at law);


 


(c)           the execution, delivery
and performance of this Declaration by the Institutional Trustee does not
conflict with or constitute a breach of the charter or by-laws of the
Institutional Trustee; and


 


(d)           no consent, approval or
authorization of, or registration with or notice to, any state or federal
banking authority is required for the execution, delivery or performance by the
Institutional Trustee of this Declaration.


 


Section 12.2.        Representations
of the Delaware Trustee.  The Trustee that acts as initial
Delaware Trustee represents and warrants to the Trust and to the Sponsor at the
date of this Declaration, and each Successor Delaware Trustee represents and
warrants to the Trust and the Sponsor at the time of the Successor Delaware
Trustee’s acceptance of its appointment as Delaware Trustee that:


 


(a)           if it is not a natural
person, the Delaware Trustee is duly organized, validly existing and in good
standing under the laws of the State of Delaware;


 


(b)           if it is not a natural
person, the execution, delivery and performance by the Delaware Trustee of this
Declaration has been duly authorized by all necessary corporate action on the
part of the Delaware Trustee.  This
Declaration has been duly executed and delivered by the Delaware Trustee, and
under Delaware law (excluding any securities laws) constitutes a legal, valid
and binding obligation of the Delaware Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency and other similar laws affecting creditors’ rights generally
and to


 


42

















 


general principles
of equity and the discretion of the court (regardless of whether considered in
a proceeding in equity or at law);


 


(c)           if it is not a natural
person, the execution, delivery and performance of this Declaration by the
Delaware Trustee does not conflict with or constitute a breach of the charter
or by-laws of the Delaware Trustee;


 


(d)           it has trust power and
authority to execute and deliver, and to carry out and perform its obligations
under the terms of, this Declaration;


 


(e)           no consent, approval or
authorization of, or registration with or notice to, any state or federal
banking authority governing the trust powers of the Delaware Trustee is
required for the execution, delivery or performance by the Delaware Trustee of
this Declaration; and


 


(f)            the Delaware Trustee
is a natural person who is a resident of the State of Delaware or, if not a
natural person, it is an entity which has its principal place of business in
the State of Delaware and, in either case, a Person that satisfies for the
Trust the requirements of Section 3807 of the Statutory Trust Act.


 


ARTICLE
XIII


 


MISCELLANEOUS


 


Section 13.1.        Notices.  All
notices provided for in this Declaration shall be in writing, duly signed by
the party giving such notice, and shall be delivered, telecopied (which
telecopy shall be followed by notice delivered or mailed by first class mail)
or mailed by first class mail, as follows:


 


(a)           if given to the Trust,
in care of the Administrators at the Trust’s mailing address set forth below
(or such other address as the Trust may give notice of to the Holders of the
Securities):


 


First Regional Statutory
Trust VI


c/o First Regional
Bancorp


1801 Century Park East,
Suite 800


Century City, California  90067


Attention:  Jack A. Sweeney


Telecopy:  310-552-1772


 


(b)           if given to the
Delaware Trustee, at the Delaware Trustee’s mailing address set forth below (or
such other address as the Delaware Trustee may give notice of to the Holders of
the Securities):


 


Wilmington Trust
Company


Rodney Square
North


1100 North Market
Street


Wilmington,
Delaware  19890-1600


Attention:  Corporate Trust Administration


Telecopy:  302-636-4140


 


(c)           if given to the
Institutional Trustee, at the Institutional Trustee’s mailing address set forth
below (or such other address as the Institutional Trustee may give notice of to
the Holders of the Securities):


 


43

















 


Wilmington Trust
Company


Rodney Square
North


1100 North Market Street


Wilmington,
Delaware  19890-1600


Attention:  Corporate Trust Administration


Telecopy:  302-636-4140


 


(d)           if given to the Holder
of the Common Securities, at the mailing address of the Sponsor set forth below
(or such other address as the Holder of the Common Securities may give notice
of to the Trust):


 


First Regional Bancorp


1801 Century Park East,
Suite 800


Century City,
California  90067


Attention:  Jack A. Sweeney


Telecopy:  310-552-1772


 


(e)           if given to any other
Holder, at the address set forth on the books and records of the Trust.


 


All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.


 


Section 13.2.        Governing
Law.  This Declaration and the rights of the parties
hereunder shall be governed by and interpreted in accordance with the law of
the State of Delaware and all rights and remedies shall be governed by such
laws without regard to the principles of conflict of laws of the State of
Delaware or any other jurisdiction that would call for the application of the
law of any jurisdiction other than the State of Delaware; provided, however,
that there shall not be applicable to the Trust, the Trustees or this
Declaration any provision of the laws (statutory or common) of the State of
Delaware pertaining to trusts that relate to or regulate, in a manner
inconsistent with the terms hereof (a) the filing with any court or
governmental body or agency of trustee accounts or schedules of trustee fees
and charges, (b) affirmative requirements to post bonds for trustees,
officers, agents or employees of a trust, (c) the necessity for obtaining
court or other governmental approval concerning the acquisition, holding or
disposition of real or personal property, (d) fees or other sums payable
to trustees, officers, agents or employees of a trust, (e) the allocation
of receipts and expenditures to income or principal, or (f) restrictions
or limitations on the permissible nature, amount or concentration of trust
investments or requirements relating to the titling, storage or other manner of
holding or investing trust assets.


 


Section 13.3.        Intention
of the Parties.  It is the intention of the parties hereto
that the Trust be classified for United States federal income tax purposes as a
grantor trust. The provisions of this Declaration shall be interpreted to
further this intention of the parties.


 


Section 13.4.        Headings.  Headings
contained in this Declaration are inserted for convenience of reference only
and do not affect the interpretation of this Declaration or any provision
hereof.


 


Section 13.5.        Successors
and Assigns.  Whenever in this Declaration any of the parties
hereto is named or referred to, the successors and assigns of such party shall
be deemed to be included, and all covenants and agreements in this Declaration
by the Sponsor and the Trustees shall bind and inure to the benefit of their
respective successors and assigns, whether or not so expressed.


 


44

















 


Section 13.6.        Partial
Enforceability.  If any provision of this Declaration, or the
application of such provision to any Person or circumstance, shall be held
invalid, the remainder of this Declaration, or the application of such
provision to persons or circumstances other than those to which it is held
invalid, shall not be affected thereby.


 


Section 13.7.        Counterparts.  This
Declaration may contain more than one counterpart of the signature page and
this Declaration may be executed by the affixing of the signature of each of
the Trustees and Administrators to any of such counterpart signature
pages.  All of such counterpart signature
pages shall be read as though one, and they shall have the same force and
effect as though all of the signers had signed a single signature page.


 


Signatures appear on the following page


 


45

















 


IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.


 


	
   

  	
  WILMINGTON
  TRUST COMPANY,

  
	
   

  	
  as Delaware
  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Christopher J. Slaybaugh

  	
   

  
	
   

  	
   

  	
   

  	
  Name:
  Christopher J. Slaybaugh

  
	
   

  	
   

  	
   

  	
  Title:
  Senior Financial Services Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WILMINGTON
  TRUST COMPANY,

  
	
   

  	
  as
  Institutional Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Christopher J. Slaybaugh

  	
   

  
	
   

  	
   

  	
   

  	
  Name:
  Christopher J. Slaybaugh

  
	
   

  	
   

  	
   

  	
  Title:
  Senior Financial Services Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FIRST
  REGIONAL BANCORP, as Sponsor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas
  McCullough

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Thomas
  McCullough

  
	
   

  	
   

  	
   

  	
  Title:
  Corporate Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ADMINISTRATORS
  OF FIRST
  REGIONAL

  STATUTORY TRUST VI

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jack A.
  Sweeney

  	
   

  
	
   

  	
   

  	
   

  	
  Administrator

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ H.
  Anthony Gartshore

  	
   

  
	
   

  	
   

  	
   

  	
  Administrator

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas
  McCullough

  	
   

  
	
   

  	
   

  	
   

  	
  Administrator

  
										



 


46

















 


ANNEX I


 


TERMS OF SECURITIES


 


Pursuant to Section 6.1 of the Amended and Restated
Declaration of Trust, dated as of March 30, 2006 (as amended from time to
time, the “Declaration”), the designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Capital Securities and the
Common Securities are set out below (each capitalized term used but not defined
herein has the meaning set forth in the Declaration):


 


1.             Designation
and Number.


 


(a)           30,000
Floating Rate Capital Securities of First Regional Statutory Trust VI (the
“Trust”), with an aggregate stated liquidation amount with respect to the
assets of the Trust of thirty million dollars ($30,000,000.00) and a stated
liquidation amount with respect to the assets of the Trust of $1,000.00 per
Capital Security, are hereby designated for the purposes of identification only
as the “Capital Securities”.  The
Capital Security Certificates evidencing the Capital Securities shall be
substantially in the form of Exhibit A-1 to the Declaration, with such
changes and additions thereto or deletions therefrom as may be required by
ordinary usage, custom or practice.


 


(b)           928
Floating Rate Common Securities of the Trust (the “Common Securities”)
will be evidenced by Common Security Certificates substantially in the form of
Exhibit A-2 to the Declaration, with such changes and additions thereto or
deletions therefrom as may be required by ordinary usage, custom or practice.


 


2.             Distributions.


 


(a)           Distributions
will be payable on each Security for the Distribution Period beginning on (and
including) the date of original issuance and ending on (but excluding) the
Distribution Payment Date in June 2006 at a rate per annum of 6.47938% and
shall bear interest for each successive Distribution Period beginning on (and
including) the Distribution Payment Date in June 2006, and each succeeding
Distribution Payment Date, and ending on (but excluding) the next succeeding
Distribution Payment Date at a rate per annum equal to the 3-Month LIBOR,
determined as described below, plus 1.50% (the “Coupon Rate”), applied
to the stated liquidation amount thereof, such rate being the rate of interest
payable on the Debentures to be held by the Institutional Trustee.  Distributions in arrears will bear interest
thereon compounded quarterly at the applicable Distribution Rate (to the extent
permitted by law).  Distributions, as
used herein, include cash distributions and any such compounded distributions
unless otherwise noted.  A Distribution
is payable only to the extent that payments are made in respect of the
Debentures held by the Institutional Trustee and to the extent the
Institutional Trustee has funds available therefor.  The amount of the Distribution payable for
any Distribution Period will be calculated by applying the Distribution Rate to
the stated liquidation amount outstanding at the commencement of the
Distribution Period on the basis of the actual number of days in the
Distribution Period concerned divided by 360. 
All percentages resulting from any calculations on the Capital
Securities will be rounded, if necessary, to the nearest one hundred-thousandth
of a percentage point, with five one-millionths of a percentage point rounded
upward (e.g., 9.876545% (or .09876545) being rounded to 9.87655% (or .0987655),
and all dollar amounts used in or resulting from such calculation will be
rounded to the nearest cent (with one-half cent being rounded upward)).


 


(b)           Distributions
on the Securities will be cumulative, will accrue from the date of original
issuance, and will be payable, subject to extension of distribution payment
periods as described herein, quarterly in arrears on March 15,
June 15, September 15 and December 15 of each year, or if such
day is not a Business Day, then the next succeeding Business Day (each a “Distribution
Payment Date”)


 


I-1

















 


(it being understood that interest accrues for any
such non-Business Day), commencing on the Distribution Payment Date in June
2006 when, as and if available for payment. 
The Debenture Issuer has the right under the Indenture to defer payments
of interest on the Debentures, so long as no Acceleration Event of Default has
occurred and is continuing, by deferring the payment of interest on the
Debentures for up to 20 consecutive quarterly periods (each an “Extension
Period”) at any time and from time to time, subject to the conditions
described below, during which Extension Period no interest shall be due and
payable.  During any Extension Period,
interest will continue to accrue on the Debentures, and interest on such
accrued interest will accrue at an annual rate equal to the Distribution Rate
in effect for each such Extension Period, compounded quarterly from the date
such interest would have been payable were it not for the Extension Period, to
the extent permitted by law (such interest referred to herein as “Additional
Interest”).  No Extension Period may
end on a date other than a Distribution Payment Date.  At the end of any such Extension Period, the
Debenture Issuer shall pay all interest then accrued and unpaid on the
Debentures (together with Additional Interest thereon); provided, however,
that no Extension Period may extend beyond the Maturity Date and provided
further, however, that during any such Extension Period, the
Debenture Issuer and its Affiliates 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 Debenture Issuer’s or its
Affiliates’ capital stock (other than payments of dividends or distributions to
the Debenture Issuer) or make any guarantee payments with respect to the
foregoing, or (ii) make any payment of principal of or interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Debenture Issuer or any Affiliate that rank pari passu
in all respects with or junior in interest to the Debentures (other than, with
respect to clauses (i) and (ii) above, (a) repurchases, redemptions
or other acquisitions of shares of capital stock of the Debenture Issuer in
connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of one or more employees, officers,
directors or consultants, in connection with a dividend reinvestment or stockholder
stock purchase plan or in connection with the issuance of capital stock of the
Debenture Issuer (or securities convertible into or exercisable for such
capital stock) as consideration in an acquisition transaction entered into
prior to the applicable Extension Period, (b) as a result of any exchange
or conversion of any class or series of the Debenture Issuer’s capital stock
(or any capital stock of a subsidiary of the Debenture Issuer) for any class or
series of the Debenture Issuer’s capital stock or of any class or series of the
Debenture Issuer’s indebtedness for any class or series of the Debenture
Issuer’s capital stock, (c) the purchase of fractional interests in shares
of the Debenture Issuer’s capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or exchanged,
(d) any declaration of a dividend in connection with any stockholders’
rights plan, or the issuance of rights, stock or other property under any
stockholders’ rights plan, or the redemption or repurchase of rights pursuant
thereto, (e) any dividend in the form of stock, warrants, options or other
rights where the dividend stock or the stock issuable upon exercise of such
warrants, options or other rights is the same stock as that on which the
dividend is being paid or ranks pari passu with
or junior to such stock and any cash payments in lieu of fractional shares
issued in connection therewith, or (f)  payments under the Capital
Securities Guarantee).  Prior to the
termination of any Extension Period, the Debenture Issuer may further extend
such period, provided that such period together with all such previous and
further consecutive extensions thereof shall not exceed 20 consecutive
quarterly periods, or extend beyond the Maturity Date.  Upon the termination of any Extension Period
and upon the payment of all accrued and unpaid interest and Additional
Interest, the Debenture Issuer may commence a new Extension Period, subject to
the foregoing requirements.  No interest
or Additional Interest shall be due and payable during an Extension Period,
except at the end thereof, but each installment of interest that would
otherwise have been due and payable during such Extension Period shall bear
Additional Interest.  During any
Extension Period, Distributions on the Securities shall be deferred for a
period equal to the Extension Period.  If
Distributions are deferred, the Distributions due shall be paid on the date
that the related Extension Period terminates to Holders of the Securities as
they appear on the books and records of the Trust on the record date
immediately preceding such date. 
Distributions on the Securities must be paid on the dates payable (after
giving effect to any Extension Period) to the extent that the Trust has


 


I-2

















 


funds available for the payment of such distributions
in the Property Account of the Trust. 
The Trust’s funds available for Distribution to the Holders of the
Securities will be limited to payments received from the Debenture Issuer.  The payment of Distributions out of moneys
held by the Trust is guaranteed by the Guarantor pursuant to the Guarantee.


 


(c)           Distributions
on the Securities will be payable to the Holders thereof as they appear on the
books and records of the Trust on the relevant record dates.  The relevant record dates shall be fifteen
days before the relevant Distribution Payment Date.  Distributions payable on any Securities that
are not punctually paid on any Distribution Payment Date, as a result of the
Debenture Issuer having failed to make a payment under the Debentures, as the
case may be, when due (taking into account any Extension Period), will cease to
be payable to the Person in whose name such Securities are registered on the
relevant record date, and such defaulted Distribution will instead be payable
to the Person in whose name such Securities are registered on the special
record date or other specified date determined in accordance with the
Indenture.


 


(d)           In the
event that there is any money or other property held by or for the Trust that
is not accounted for hereunder, such property shall be distributed Pro Rata (as
defined herein) among the Holders of the Securities.


 


3.             Liquidation
Distribution Upon Dissolution.  In
the event of the voluntary or involuntary liquidation, dissolution, winding-up
or termination of the Trust (each a “Liquidation”) other than in
connection with a redemption of the Debentures, the Holders of the Securities
will be entitled to receive out of the assets of the Trust available for
distribution to Holders of the Securities, after satisfaction of liabilities to
creditors of the Trust (to the extent not satisfied by the Debenture Issuer),
distributions equal to the aggregate of the stated liquidation amount of $1,000.00
per Security plus accrued and unpaid Distributions thereon to the date of
payment (such amount being the “Liquidation Distribution”), unless in
connection with such Liquidation, the Debentures in an aggregate stated
principal amount equal to the aggregate stated liquidation amount of such
Securities, with an interest rate equal to the Distribution Rate of, and
bearing accrued and unpaid interest in an amount equal to the accrued and
unpaid Distributions on, and having the same record date as, such Securities,
after paying or making reasonable provision to pay all claims and obligations
of the Trust in accordance with the Statutory Trust Act, shall be distributed
on a Pro Rata basis to the Holders of the Securities in exchange for such
Securities.


 


The Sponsor, as the Holder of all of the Common Securities, has the
right at any time to dissolve the Trust (including, without limitation, upon
the occurrence of a Special Event), subject to the receipt by the Debenture
Issuer of prior approval from the Board of Governors of the Federal Reserve
System, or its designated district bank, as applicable, and any successor
federal agency that is primarily responsible for regulating the activities of
the Sponsor (the “Federal Reserve”), if the Sponsor is a bank holding
company, or from the Office of Thrift Supervision and any successor federal
agency that is primarily responsible for regulating the activities of Sponsor,
(the “OTS”) if the Sponsor is a savings and loan holding company, in
either case if then required under applicable capital guidelines or policies of
the Federal Reserve or OTS, as applicable, and, after satisfaction of
liabilities to creditors of the Trust, cause the Debentures to be distributed
to the Holders of the Securities on a Pro Rata basis in accordance with the
aggregate stated liquidation amount thereof.


 


If a Liquidation of the Trust occurs as described in clause (i),
(ii), (iii) or (v) in Section 7.1(a) of the Declaration, the Trust shall be
liquidated by the Institutional Trustee as expeditiously as it determines to be
possible by distributing, after satisfaction of liabilities to creditors of the
Trust, to the Holders of the Securities, the Debentures on a Pro Rata basis to
the extent not satisfied by the Debenture Issuer, unless such distribution is
determined by the Institutional Trustee not to be practical, in which event
such Holders will be entitled to receive out of the assets of the Trust
available for distribution to the Holders,


 


I-3

















 


after satisfaction of liabilities of creditors of the
Trust to the extent not satisfied by the Debenture Issuer, an amount equal to
the Liquidation Distribution.  An early
Liquidation of the Trust pursuant to clause (iv) of Section 7.1(a) of the
Declaration shall occur if the Institutional Trustee determines that such
Liquidation is possible by distributing, after satisfaction of liabilities to
creditors of the Trust, to the Holders of the Securities on a Pro Rata basis,
the Debentures, and such distribution occurs.


 


If, upon any such Liquidation the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then the amounts payable directly by
the Trust on such Capital Securities shall be paid to the Holders of the Trust
Securities on a Pro Rata basis, except that if an Event of Default has occurred
and is continuing, the Capital Securities shall have a preference over the
Common Securities with regard to such distributions.


 


After the date for any distribution of the Debentures upon dissolution
of the Trust (i) the Securities of the Trust will be deemed to be no
longer outstanding, (ii) upon surrender of a Holder’s Securities
certificate, such Holder of the Securities will receive a certificate
representing the Debentures to be delivered upon such distribution,
(iii) any certificates representing the Securities still outstanding will
be deemed to represent undivided beneficial interests in such of the Debentures
as have an aggregate principal amount equal to the aggregate stated liquidation
amount with an interest rate identical to the Distribution Rate of, and bearing
accrued and unpaid interest equal to accrued and unpaid distributions on, the
Securities until such certificates are presented to the Debenture Issuer or its
agent for transfer or reissuance (and until such certificates are so
surrendered, no payments of interest or principal shall be made to Holders of
Securities in respect of any payments due and payable under the Debentures; provided,
however that such failure to pay shall not be deemed to be an Event of
Default and shall not entitle the Holder to the benefits of the Guarantee), and
(iv) all rights of Holders of Securities under the Declaration shall
cease, except the right of such Holders to receive Debentures upon surrender of
certificates representing such Securities.


 


4.             Redemption
and Distribution.


 


(a)           The
Debentures will mature on June 15, 2036. 
The Debentures may be redeemed by the Debenture Issuer, in whole or in
part, at any Distribution Payment Date on or after the Distribution Payment
Date in June 2011, at the Redemption Price. In addition, the Debentures may be
redeemed by the Debenture Issuer at the Special Redemption Price, in whole but
not in part, at any Distribution Payment Date, upon the occurrence and
continuation of a Special Event within 120 days following the occurrence
of such Special Event at the Special Redemption Price, upon not less than
30 nor more than 60 days’ notice to holders of such Debentures so
long as such Special Event is continuing. In each case, the right of the
Debenture Issuer to redeem the Debentures is subject to the Debenture Issuer
having received prior approval from the Federal Reserve (if the Debenture
Issuer is a bank holding company) or prior approval from the OTS (if the
Debenture Issuer is a savings and loan holding company), in each case if then
required under applicable capital guidelines or policies of the applicable
federal agency.


 


“3-Month LIBOR” means the London interbank offered interest rate
for three-month, U.S. dollar deposits determined by the Debenture Trustee in
the following order of priority:


 


(1)           the
rate (expressed as a percentage per annum) for U.S. dollar deposits having a
three-month maturity that appears on Telerate Page 3750 as of
11:00 a.m. (London time) on the related Determination Date (as defined
below).  “Telerate Page 3750” means
the display designated as “Page 3750” on the Moneyline Telerate Service or
such other page as may replace Page 3750 on that service or such other
service or services as may be nominated by the British Bankers’ Association as
the information vendor for the purpose of displaying London interbank offered
rates for U.S. dollar deposits;


 


I-4

















 


(2)           if
such rate cannot be identified on the related Determination Date, the Debenture
Trustee will request the principal London offices of four leading banks in the
London interbank market to provide such banks’ offered quotations (expressed as
percentages per annum) to prime banks in the London interbank market for U.S.
dollar deposits having a three-month maturity as of 11:00 a.m. (London
time) on such Determination Date.  If at
least two quotations are provided, 3-Month LIBOR will be the arithmetic mean of
such quotations;


 


(3)           if
fewer than two such quotations are provided as requested in clause (2)
above, the Debenture Trustee will request four major New York City banks to
provide such banks’ offered quotations (expressed as percentages per annum) to
leading European banks for loans in U.S. dollars as of 11:00 a.m. (London
time) on such Determination Date.  If at
least two such quotations are provided, 3-Month LIBOR will be the arithmetic
mean of such quotations; and


 


(4)           if
fewer than two such quotations are provided as requested in clause (3)
above, 3-Month LIBOR will be a 3-Month LIBOR determined with respect to the
Distribution Period immediately preceding such current Distribution Period.


 


If the rate for U.S. dollar deposits having a three-month maturity that
initially appears on Telerate Page 3750 as of 11:00 a.m. (London
time) on the related Determination Date is superseded on the Telerate
Page 3750 by a corrected rate by 12:00 noon (London time) on such Determination
Date, then the corrected rate as so substituted on the applicable page will be
the applicable 3-Month LIBOR for such Determination Date.


 


The Distribution Rate for any Distribution Period will at no time be
higher than the maximum rate then permitted by New York law as the same may be
modified by United States law.


 


“Capital Treatment Event” means the receipt by the Debenture
Issuer and the Trust of an opinion of counsel experienced in such matters to
the effect that, as a result of the occurrence of any amendment to, or change
(including any announced prospective change) in, the laws, rules or regulations
of the United States or any political subdivision thereof or therein, or as the
result of any official or administrative pronouncement or action or decision
interpreting or applying such laws, rules or regulations, which amendment or
change is effective or which pronouncement, action or decision is announced on
or after the date of original issuance of the Debentures, there is more than an
insubstantial risk that the Sponsor will not, within 90 days of the date of
such opinion, be entitled to treat an amount equal to the aggregate liquidation
amount of the Capital Securities as “Tier 1 Capital” (or its then
equivalent) for purposes of the capital adequacy guidelines of the Federal
Reserve, as then in effect and applicable to the Sponsor (or if the Sponsor is
not a bank holding company or otherwise is not subject to the Federal Reserve’s
risk-based capital adequacy guidelines, such guidelines applied to the Sponsor
as if the Sponsor were subject to such guidelines); provided, however,
that the inability of the Sponsor to treat all or any portion of the
liquidation amount of the Capital Securities as Tier l Capital shall not
constitute the basis for a Capital Treatment Event, if such inability results
from the Sponsor having cumulative preferred stock, minority interests in
consolidated subsidiaries, or any other class of security or interest which the
Federal Reserve or OTS, as applicable, may now or hereafter accord Tier 1
Capital treatment in excess of the amount which may now or hereafter qualify
for treatment as Tier 1 Capital under applicable capital adequacy
guidelines; provided  further, however, that the
distribution of Debentures in connection with the Liquidation of the Trust
shall not in and of itself constitute a Capital Treatment Event unless such
Liquidation shall have occurred in connection with a Tax Event or an Investment
Company Event.


 


“Determination Date” means the date that is two London Banking
Days (i.e., a business day in which dealings in deposits in U.S. dollars are
transacted in the London interbank market) preceding the particular
Distribution Period for which a Coupon Rate is being determined.


 


I-5

















 


“Investment Company Event” means the receipt by the Debenture
Issuer and the Trust of an opinion of counsel experienced in such matters to
the effect that, as a result of the occurrence of a change in law or regulation
or written change (including any announced prospective change) in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority, there is more than an
insubstantial risk that the Trust is or, within 90 days of the date of such
opinion, will be considered an Investment Company that is required to be
registered under the Investment Company Act which change or prospective change
becomes effective or would become effective, as the case may be, on or after
the date of the issuance of the Debentures.


 


“Maturity Date” means June 15, 2036.


 


“Redemption Date” shall mean the date fixed for the redemption
of Capital Securities, which shall be any Distribution Payment Date on or after
the Distribution Payment Date in June 2011.


 


“Redemption Price” means 100% of the principal
amount of the Debentures being redeemed, plus accrued and unpaid Interest on
such Debentures to the Redemption Date.


 


“Special Event” means a Tax Event, an Investment Company Event
or a Capital Treatment Event.


 


“Special Redemption Date” means a date on which a Special Event
redemption occurs, which shall be a Distribution Payment Date.


 


“Special Redemption Price” means the price set forth in the
following table for any Special Redemption Date that occurs on the date
indicated below (or if such day is not a Business Day, then the next succeeding
Business Day), expressed as the percentage of the principal amount of the
Debentures being redeemed:


 




	
  Month in which Special

  Redemption Date Occurs

  	
   

  	
  Special Redemption Price

  	
   

  
	
  June 2006

  	
   

  	
  104.625

  	
  %

  
	
  September
  2006

  	
   

  	
  104.300

  	
  %

  
	
  December
  2006

  	
   

  	
  104.000

  	
  %

  
	
  March 2007

  	
   

  	
  103.650

  	
  %

  
	
  June 2007

  	
   

  	
  103.350

  	
  %

  
	
  September
  2007

  	
   

  	
  103.000

  	
  %

  
	
  December
  2007

  	
   

  	
  102.700

  	
  %

  
	
  March 2008

  	
   

  	
  102.350

  	
  %

  
	
  June 2008

  	
   

  	
  102.050

  	
  %

  
	
  September
  2008

  	
   

  	
  101.700

  	
  %

  
	
  December
  2008

  	
   

  	
  101.400

  	
  %

  






 


I-6

















 




	
  March 2009

  	
   

  	
  101.050

  	
  %

  
	
  June 2009

  	
   

  	
  100.750

  	
  %

  
	
  September 2009

  	
   

  	
  100.450

  	
  %

  
	
  December 2009

  	
   

  	
  100.200

  	
  %

  
	
  March 2010
  and thereafter

  	
   

  	
  100.000

  	
  %

  






 


plus, in each case,
accrued and unpaid Interest on such Debentures to the Special Redemption Date.


 


“Tax Event” means the
receipt by the Debenture Issuer and the Trust of an opinion of counsel
experienced in such matters to the effect that, as a result of any 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 as a result of any official
administrative pronouncement (including any private letter ruling, technical
advice memorandum, field service advice, regulatory procedure, notice or
announcement including any notice or announcement of intent to adopt such
procedures or regulations) (an “Administrative Action”) or judicial
decision interpreting or applying such laws or regulations, regardless of
whether such Administrative Action or judicial decision is issued to or in
connection with a proceeding involving the Debenture Issuer or the Trust and
whether or not subject to review or appeal, which amendment, clarification,
change, Administrative Action or decision is enacted, promulgated or announced,
in each case on or after the date of original issuance of the Debentures, there
is more than an insubstantial risk that: (i) the Trust is, or will be
within 90 days of the date of such opinion, subject to United States federal
income tax with respect to income received or accrued on the Debentures; (ii) interest
payable by the Debenture Issuer on the Debentures is not, or within 90 days of
the date of such opinion, will not be, deductible by the Debenture Issuer, in
whole or in part, for United States federal income tax purposes; or (iii) the
Trust is, or will be within 90 days of the date of such opinion, subject to
more than a de minimis amount of other taxes, duties or other governmental
charges.


 


(b)                                 Upon the repayment in full at maturity or
redemption in whole or in part of the Debentures (other than following the
distribution of the Debentures to the Holders of the Securities), the proceeds
from such repayment or payment shall concurrently be applied to redeem Pro Rata
at the applicable Redemption Price or Special Redemption Price, as applicable,
Securities having an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so repaid or redeemed; provided, however,
that holders of such Securities shall be given not less than 30 nor more than
60 days’ notice of such redemption (other than at the scheduled maturity of the
Debentures).


 


(c)                                  If fewer than all the outstanding
Securities are to be so redeemed, the Common Securities and the Capital
Securities will be redeemed Pro Rata and the Capital Securities to be redeemed
will be redeemed Pro Rata from each Holder of Capital Securities.


 


(d)                                 The Trust may not redeem fewer than
all the outstanding Capital Securities unless all accrued and unpaid
Distributions have been paid on all Capital Securities for all quarterly
Distribution periods terminating on or before the date of redemption.


 


I-7

















 


(e)                                  Redemption or Distribution Procedures.


 


(i)                                     Notice of any redemption of, or notice of
distribution of the Debentures in exchange for, the Securities (a “Redemption/Distribution
Notice”) will be given by the Trust by mail to each Holder of Securities to
be redeemed or exchanged not fewer than 30 nor more than 60 days before the
date fixed for redemption or exchange thereof which, in the case of a
redemption, will be the date fixed for redemption of the Debentures. For
purposes of the calculation of the date of redemption or exchange and the dates
on which notices are given pursuant to this paragraph 4(e)(i), a
Redemption/Distribution Notice shall be deemed to be given on the day such
notice is first mailed by first-class mail, postage prepaid, to Holders of
such Securities. Each Redemption/Distribution Notice shall be addressed to the
Holders of such Securities at the address of each such Holder appearing on the
books and records of the Trust. No defect in the Redemption/Distribution Notice
or in the mailing thereof with respect to any Holder shall affect the validity
of the redemption or exchange proceedings with respect to any other Holder.


 


(ii)                                  If the Securities are to be redeemed and
the Trust gives a Redemption/ Distribution Notice, which notice may only
be issued if the Debentures are redeemed as set out in this paragraph 4
(which notice will be irrevocable), then, provided that the
Institutional Trustee has a sufficient amount of cash in connection with the
related redemption or maturity of the Debentures, the Institutional Trustee
will pay the relevant Redemption Price or Special Redemption Price, as
applicable, to the Holders of such Securities by check mailed to the address of
each such Holder appearing on the books and records of the Trust on the
Redemption Date. If a Redemption/Distribution Notice shall have been given and
funds deposited as required then immediately prior to the close of business on
the date of such deposit Distributions will cease to accrue on the Securities
so called for redemption and all rights of Holders of such Securities so called
for redemption will cease, except the right of the Holders of such Securities
to receive the applicable Redemption Price or Special Redemption Price
specified in paragraph 4(a), but without interest on such Redemption Price
or Special Redemption Price. If payment of the Redemption Price or Special
Redemption Price in respect of any Securities is improperly withheld or refused
and not paid either by the Trust or by the Debenture Issuer as guarantor
pursuant to the Guarantee, Distributions on such Securities will continue to
accrue at the Distribution Rate from the original Redemption Date to the actual
date of payment, in which case the actual payment date will be considered the
date fixed for redemption for purposes of calculating the Redemption Price or
Special Redemption Price. In the event of any redemption of the Capital
Securities issued by the Trust in part, the Trust shall not be required to (i) issue,
register the transfer of or exchange any Security during a period beginning at
the opening of business fifteen days before any selection for redemption of the
Capital Securities and ending at the close of business on the earliest date on
which the relevant notice of redemption is deemed to have been given to all
Holders of the Capital Securities to be so redeemed or (ii) register the
transfer of or exchange any Capital Securities so selected for redemption, in
whole or in part, except for the unredeemed portion of any Capital Securities
being redeemed in part.


 


(iii)                               Redemption/Distribution Notices shall be
sent by the Administrators on behalf of the Trust to (A) in respect of the
Capital Securities, the Holders thereof and (B) in respect of the Common
Securities, the Holder thereof.


 


(iv)                              Subject to the foregoing and applicable
law (including, without limitation, United States federal securities laws), and
provided that the acquiror is not the Holder of the Common Securities or the
obligor under the Indenture, the Sponsor or any of its


 


I-8

















 


subsidiaries may at
any time and from time to time purchase outstanding Capital Securities by
tender, in the open market or by private agreement.


 


5.                                       Voting Rights - Capital Securities.


 


(a)                                  Except as provided under
paragraphs 5(b) and 7 and as otherwise required by law and the Declaration,
the Holders of the Capital Securities will have no voting rights. The
Administrators are required to call a meeting of the Holders of the Capital
Securities if directed to do so by Holders of at least 10% in liquidation
amount of the Capital Securities.


 


(b)                                 Subject to the requirements of obtaining
a tax opinion by the Institutional Trustee in certain circumstances set forth
in the last sentence of this paragraph, the Holders of a Majority in
liquidation amount of the Capital Securities, voting separately as a class,
have the right to direct the time, method, and place of conducting any
proceeding for any remedy available to the Institutional Trustee, or exercising
any trust or power conferred upon the Institutional Trustee under the
Declaration, including the right to direct the Institutional Trustee, as holder
of the Debentures, to (i) exercise the remedies available under the
Indenture as the holder of the Debentures, (ii) waive any past default
that is waivable under the Indenture, (iii) exercise any right to rescind
or annul a declaration that the principal of all the Debentures shall be due
and payable or (iv) consent on behalf of all the Holders of the Capital
Securities to any amendment, modification or termination of the Indenture or
the Debentures where such consent shall be required; provided, however,
that, where a consent or action under the Indenture would require the consent
or act of the holders of greater than a simple majority in aggregate principal
amount of Debentures (a “Super Majority”) affected thereby, the
Institutional Trustee may only give such consent or take such action at
the written direction of the Holders of at least the proportion in liquidation
amount of the Capital Securities outstanding which the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding. If
the Institutional Trustee fails to enforce its rights under the Debentures
after the Holders of a Majority in liquidation amount of such Capital
Securities have so directed the Institutional Trustee, to the fullest extent
permitted by law, a Holder of the Capital Securities may institute a legal
proceeding directly against the Debenture Issuer to enforce the Institutional
Trustee’s rights under the Debentures without first instituting any legal
proceeding against the Institutional Trustee or any other person or entity.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Debenture
Issuer to pay interest or principal on the Debentures on the date the interest
or principal is payable (or in the case of redemption, the Redemption Date or
the Special Redemption Date, as applicable), then a Holder of record of the
Capital Securities may directly institute a proceeding for enforcement of
payment, on or after the respective due dates specified in the Debentures, to
such Holder directly of the principal of or interest on the Debentures having
an aggregate principal amount equal to the aggregate liquidation amount of the
Capital Securities of such Holder. The Institutional Trustee shall notify all
Holders of the Capital Securities of any default actually known to the
Institutional Trustee with respect to the Debentures unless (x) such
default has been cured prior to the giving of such notice or (y) the
Institutional Trustee determines in good faith that the withholding of such
notice is in the interest of the Holders of such Capital Securities, except
where the default relates to the payment of principal of or interest on any of
the Debentures. Such notice shall state that such Indenture Event of Default
also constitutes an Event of Default hereunder. Except with respect to
directing the time, method and place of conducting a proceeding for a remedy,
the Institutional Trustee shall not take any of the actions described in
clauses (i), (ii) or (iii) above unless the Institutional
Trustee has obtained an opinion of tax counsel to the effect that, as a result
of such action, the Trust will not be classified as other than a grantor trust
for United States federal income tax purposes.


 


In the event the consent
of the Institutional Trustee, as the holder of the Debentures, is required
under the Indenture with respect to any amendment, modification or termination
of the Indenture, the Institutional Trustee shall request the direction of the
Holders of the Securities with respect to such


 


I-9

















 


amendment,
modification or termination and shall vote with respect to such amendment,
modification or termination as directed by a Majority in liquidation amount of
the Securities voting together as a single class; provided, however,
that where a consent under the Indenture would require the consent of a
Super-Majority, the Institutional Trustee may only give such consent at
the direction of the Holders of at least the proportion in liquidation amount
of the Securities outstanding which the relevant Super-Majority represents of
the aggregate principal amount of the Debentures outstanding. The Institutional
Trustee shall not take any such action in accordance with the directions of the
Holders of the Securities unless the Institutional Trustee has obtained an
opinion of tax counsel to the effect that, as a result of such action, the Trust
will not be classified as other than a grantor trust for United States federal
income tax purposes.


 


A waiver of an Indenture
Event of Default will constitute a waiver of the corresponding Event of Default
hereunder. Any required approval or direction of Holders of the Capital
Securities may be given at a separate meeting of Holders of the Capital
Securities convened for such purpose, at a meeting of all of the Holders of the
Securities in the Trust or pursuant to written consent. The Institutional Trustee
will cause a notice of any meeting at which Holders of the Capital Securities
are entitled to vote, or of any matter upon which action by written consent of
such Holders is to be taken, to be mailed to each Holder of record of the
Capital Securities. Each such notice will include a statement setting forth the
following information (i) the date of such meeting or the date by which
such action is to be taken, (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are entitled to vote or of
such matter upon which written consent is sought and (iii) instructions
for the delivery of proxies or consents. No vote or consent of the Holders of
the Capital Securities will be required for the Trust to redeem and cancel
Capital Securities or to distribute the Debentures in accordance with the
Declaration and the terms of the Securities.


 


Notwithstanding that
Holders of the Capital Securities are entitled to vote or consent under any of
the circumstances described above, any of the Capital Securities that are owned
by the Sponsor or any Affiliate of the Sponsor shall not entitle the Holder
thereof to vote or consent and shall, for purposes of such vote or consent, be
treated as if such Capital Securities were not outstanding.


 


In no event will Holders
of the Capital Securities have the right to vote to appoint, remove or replace
the Administrators, which voting rights are vested exclusively in the Sponsor
as the Holder of all of the Common Securities of the Trust. Under certain circumstances
as more fully described in the Declaration, Holders of Capital Securities have
the right to vote to appoint, remove or replace the Institutional Trustee and
the Delaware Trustee.


 


6.                                       Voting Rights - Common Securities.


 


(a)                                  Except as provided under
paragraphs 6(b), 6(c) and 7 and as otherwise required by law and the
Declaration, the Common Securities will have no voting rights.


 


(b)                                 The Holders of the Common Securities are
entitled, in accordance with Article IV of the Declaration, to vote to appoint,
remove or replace any Administrators.


 


(c)                                  Subject to Section 6.8 of the
Declaration and only after each Event of Default (if any) with respect to the
Capital Securities has been cured, waived, or otherwise eliminated and subject
to the requirements of the second to last sentence of this paragraph, the
Holders of a Majority in liquidation amount of the Common Securities, voting
separately as a class, may direct the time, method, and place of
conducting any proceeding for any remedy available to the Institutional
Trustee, or exercising any trust or power conferred upon the Institutional
Trustee under the Declaration, including (i) directing the time, method,
place of conducting any proceeding for any remedy available to the Debenture
Trustee, or exercising any trust or power conferred on the Debenture Trustee
with respect to the Debentures, (ii) waiving any past default and its
consequences that is waivable under the Indenture, or (iii) exercising


 


I-10

















 


any right to
rescind or annul a declaration that the principal of all the Debentures shall
be due and payable; provided, however, that, where a consent or
action under the Indenture would require a Super Majority, the Institutional
Trustee may only give such consent or take such action at the written
direction of the Holders of at least the proportion in liquidation amount of
the Common Securities which the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding. Notwithstanding this
paragraph 6(c), the Institutional Trustee shall not revoke any action
previously authorized or approved by a vote or consent of the Holders of the
Capital Securities. Other than with respect to directing the time, method and
place of conducting any proceeding for any remedy available to the
Institutional Trustee or the Debenture Trustee as set forth above, the
Institutional Trustee shall not take any action described in (i), (ii) or
(iii) above, unless the Institutional Trustee has obtained an opinion of
tax counsel to the effect that for the purposes of United States federal income
tax the Trust will not be classified as other than a grantor trust on account
of such action. If the Institutional Trustee fails to enforce its rights, to the
fullest extent permitted by law, under the Declaration, any Holder of the
Common Securities may institute a legal proceeding directly against any
Person to enforce the Institutional Trustee’s rights under the Declaration,
without first instituting a legal proceeding against the Institutional Trustee
or any other Person.


 


Any approval or direction
of Holders of the Common Securities may be given at a separate meeting of
Holders of the Common Securities convened for such purpose, at a meeting of all
of the Holders of the Securities in the Trust or pursuant to written consent. The
Administrators will cause a notice of any meeting at which Holders of the
Common Securities are entitled to vote, or of any matter upon which action by
written consent of such Holders is to be taken, to be mailed to each Holder of
the Common Securities. Each such notice will include a statement setting forth (i) the
date of such meeting or the date by which such action is to be taken, (ii) a
description of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote or of such matter upon which written consent
is sought and (iii) instructions for the delivery of proxies or consents.


 


No vote or consent of the
Holders of the Common Securities will be required for the Trust to redeem and
cancel Common Securities or to distribute the Debentures in accordance with the
Declaration and the terms of the Securities.


 


7.                                       Amendments to Declaration and Indenture.


 


(a)                                  In addition to any requirements under Section 11.1
of the Declaration, if any proposed amendment to the Declaration provides for,
or the Trustees, Sponsor or Administrators otherwise propose to effect, (i) any
action that would adversely affect the powers, preferences or special rights of
the Securities, whether by way of amendment to the Declaration or otherwise, or
(ii) the Liquidation of the Trust, other than as described in Section 7.1
of the Declaration, then the Holders of outstanding Securities, voting together
as a single class, will be entitled to vote on such amendment or proposal and
such amendment or proposal shall not be effective except with the approval of
the Holders of at least a Majority in liquidation amount of the Securities,
affected thereby; provided, however, if any amendment or proposal
referred to in clause (i) above would adversely affect only the Capital
Securities or only the Common Securities, then only the affected class will
be entitled to vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of a Majority in
liquidation amount of such class of Securities.


 


(b)                                 In the event the consent of the
Institutional Trustee as the holder of the Debentures is required under the
Indenture with respect to any amendment, modification or termination of the
Indenture or the Debentures, the Institutional Trustee shall request the
written direction of the Holders of the Securities with respect to such
amendment, modification or termination and shall vote with respect to such
amendment, modification, or termination as directed by a Majority in
liquidation amount of the


 


I-11

















 


Securities voting
together as a single class; provided, however, that where a
consent under the Indenture would require a Super Majority, the Institutional
Trustee may only give such consent at the direction of the Holders of at
least the proportion in liquidation amount of the Securities which the relevant
Super Majority represents of the aggregate principal amount of the Debentures
outstanding.


 


(c)                                  Notwithstanding the foregoing, no
amendment or modification may be made to the Declaration if such amendment
or modification would (i) cause the Trust to be classified for purposes of
United States federal income taxation as other than a grantor trust, (ii) reduce
or otherwise adversely affect the powers of the Institutional Trustee or (iii) cause
the Trust to be deemed an Investment Company which is required to be registered
under the Investment Company Act.


 


(d)                                 Notwithstanding any provision of the
Declaration, the right of any Holder of the Capital Securities to receive
payment of distributions and other payments upon redemption or otherwise, on or
after their respective due dates, or to institute a suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder. For the protection and enforcement
of the foregoing provision, each and every Holder of the Capital Securities
shall be entitled to such relief as can be given either at law or equity.


 


8.                                       Pro Rata. A reference in these terms of the Securities to any
payment, distribution or treatment as being “Pro Rata” shall mean pro
rata to each Holder of the Securities according to the aggregate liquidation
amount of the Securities held by the relevant Holder in relation to the
aggregate liquidation amount of all Securities then outstanding unless, in
relation to a payment, an Event of Default has occurred and is continuing, in
which case any funds available to make such payment shall be paid first to each
Holder of the Capital Securities Pro Rata according to the aggregate
liquidation amount of the Capital Securities held by the relevant Holder
relative to the aggregate liquidation amount of all Capital Securities
outstanding, and only after satisfaction of all amounts owed to the Holders of
the Capital Securities, to each Holder of the Common Securities Pro Rata
according to the aggregate liquidation amount of the Common Securities held by
the relevant Holder relative to the aggregate liquidation amount of all Common
Securities outstanding.


 


9.                                       Ranking. The Capital Securities rank pari passu
with and payment thereon shall be made Pro Rata with the Common Securities
except that, where an Event of Default has occurred and is continuing, the
rights of Holders of the Common Securities to receive payment of Distributions
and payments upon liquidation, redemption and otherwise are subordinated to the
rights of the Holders of the Capital Securities with the result that no payment
of any Distribution on, or Redemption Price (or Special Redemption Price) of,
any Common Security, and no other payment on account of redemption, liquidation
or other acquisition of Common Securities, shall be made unless payment in full
in cash of all accumulated and unpaid Distributions on all outstanding Capital
Securities for all distribution periods terminating on or prior thereto, or in
the case of payment of the Redemption Price (or Special Redemption Price) the
full amount of such Redemption Price (or Special Redemption Price) on all
outstanding Capital Securities then called for redemption, shall have been made
or provided for, and all funds immediately available to the Institutional
Trustee shall first be applied to the payment in full in cash of all
Distributions on, or the Redemption Price (or Special Redemption Price) of, the
Capital Securities then due and payable.


 


10.                                 Acceptance of Guarantee and Indenture. Each Holder of the Capital Securities
and the Common Securities, by the acceptance of such Securities, agrees to the
provisions of the Guarantee, including the subordination provisions therein and
to the provisions of the Indenture.


 


11.                                 No Preemptive Rights. The Holders of the Securities shall
have no preemptive or similar rights to subscribe for any additional
securities.


 


I-12

















 


12.                                 Miscellaneous. These terms constitute a part of
the Declaration. The Sponsor will provide a copy of the Declaration, the
Guarantee, and the Indenture to a Holder without charge on written request to
the Sponsor at its principal place of business.


 


I-13

















 


EXHIBIT A-1


 


FORM OF
CAPITAL SECURITY CERTIFICATE


 


[FORM OF FACE
OF SECURITY]


 


THIS CAPITAL SECURITY IS
A GLOBAL SECURITY WITHIN THE MEANING OF THE DECLARATION HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (“DTC”) OR A
NOMINEE OF DTC. THIS CAPITAL SECURITY IS EXCHANGEABLE FOR CAPITAL SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE DECLARATION, AND NO TRANSFER OF THIS
CAPITAL SECURITY (OTHER THAN A TRANSFER OF THIS CAPITAL SECURITY AS A WHOLE BY
DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF
DTC) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.


 


UNLESS THIS CAPITAL
SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO FIRST REGIONAL
STATUTORY TRUST VI
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CAPITAL
SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.


 


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 SPONSOR OR THE TRUST, (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 CAPITAL 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
SPONSOR’S AND THE TRUST’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 EACH OF THEM IN ACCORDANCE WITH THE DECLARATION OF
TRUST, A COPY OF WHICH MAY BE


 


A-1-1

















 


OBTAINED FROM THE
SPONSOR OR THE TRUST. HEDGING TRANSACTIONS INVOLVING THIS SECURITY MAY NOT
BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.


 


THE HOLDER OF THIS
SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT
IS NOT AN EMPLOYEE BENEFIT, 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 THE SECURITIES OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER
IS ELIGIBLE FOR 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 IS
NOT PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE
WITH RESPECT TO SUCH PURCHASE OR 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 WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975
OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS
OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH
PURCHASE WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE
STATUTORY OR ADMINISTRATIVE EXEMPTION.


 


THIS SECURITY WILL BE
ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT OF
NOT LESS THAN $100,000.00 (100 SECURITIES) AND MULTIPLES OF $1,000.00 IN EXCESS
THEREOF. ANY ATTEMPTED TRANSFER OF SECURITIES IN A BLOCK HAVING A LIQUIDATION
AMOUNT OF LESS THAN $100,000.00 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL
EFFECT WHATSOEVER.


 


THE HOLDER OF THIS
SECURITY AGREES THAT IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS.


 


IN CONNECTION WITH ANY
TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH
CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BY THE DECLARATION
TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.


 


	
  Certificate
  Number P-1

  	
   

  	
  30,000 Capital
  Securities

  
	
  [CUSIP NO. [       ]
  ]

  	
   

  	
   

  



 


March 30,
2006


 


Certificate
Evidencing Floating Rate Capital Securities


 


of


 


First Regional
Statutory Trust VI


 


(liquidation
amount $1,000.00 per Capital Security)


 


A-1-2

















 


First Regional Statutory
Trust VI, a statutory trust created under the laws of the State of
Delaware (the “Trust”), hereby certifies that Cede & Co. (the “Holder”)
is the registered owner of capital securities of the Trust representing
undivided beneficial interests in the assets of the Trust, (liquidation amount
$1,000.00 per capital security) (the “Capital Securities”). Subject to the Declaration
(as defined below), the Capital Securities are transferable on the books and
records of the Trust in person or by a duly authorized attorney, upon surrender
of this Certificate duly endorsed and in proper form for transfer. The
Capital Securities represented hereby are issued pursuant to, and the
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Capital Securities shall in all respects be subject to, the
provisions of the Amended and Restated Declaration of Trust of the Trust dated
as of March 30, 2006, among Jack A. Sweeney, H. Anthony
Gartshore and Thomas McCullough, as Administrators, Wilmington Trust Company,
as Delaware Trustee, Wilmington Trust Company, as Institutional Trustee, First
Regional Bancorp, as Sponsor, and the holders from time to time of undivided
beneficial interests in the assets of the Trust, including the designation of
the terms of the Capital Securities as set forth in Annex I to such
amended and restated declaration as the same may be amended from time to
time (the “Declaration”). Capitalized terms used herein but not defined shall
have the meaning given them in the Declaration. The Holder is entitled to the
benefits of the Guarantee to the extent provided therein. The Sponsor will
provide a copy of the Declaration, the Guarantee, and the Indenture to the
Holder without charge upon written request to the Sponsor at its principal
place of business.


 


Upon receipt of this
Security, the Holder is bound by the Declaration and is entitled to the
benefits thereunder.


 


By acceptance of this
Security, the Holder agrees to treat, for United States federal income tax
purposes, the Debentures as indebtedness and the Capital Securities as evidence
of beneficial ownership in the Debentures.


 


This Capital Security is
governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to principles of conflict of laws.


 


Signatures
appear on following page


 


A-1-3



















 


IN WITNESS WHEREOF, the
Trust has duly executed this certificate.


 


	
   

  	
  FIRST REGIONAL STATUTORY TRUST VI

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: Administrator

  



 


 


CERTIFICATE OF
AUTHENTICATION


 


This is one of the Capital Securities
referred to in the within-mentioned Declaration.


 


 


	
   

  	
  WILMINGTON TRUST COMPANY,

  
	
   

  	
  as the Institutional Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Officer

  



 


A-1-4

















 


[FORM OF
REVERSE OF CAPITAL SECURITY]


 


Distributions payable on
each Capital Security will be payable at an annual rate equal to 6.47938%
beginning on (and including) the date of original issuance and ending on (but
excluding) the Distribution Payment Date in June 2006 and at an annual
rate for each successive period beginning on (and including) the Distribution
Payment Date in June 2006, and each succeeding Distribution Payment Date,
and ending on (but excluding) the next succeeding Distribution Payment Date
(each a “Distribution Period”), equal to 3-Month LIBOR, determined as described
below, plus 1.50% (the “Coupon Rate”), applied to the stated liquidation amount
of $1,000.00 per Capital Security, such rate being the rate of interest payable
on the Debentures to be held by the Institutional Trustee. Distributions in
arrears will bear interest thereon compounded quarterly at the Distribution
Rate (to the extent permitted by applicable law). The term “Distributions” as
used herein includes cash distributions and any such compounded distributions
unless otherwise noted. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the Institutional
Trustee and to the extent the Institutional Trustee has funds available
therefor. As used herein, “Determination Date” means the date that is two
London Banking Days (i.e., a business day in which dealings in deposits in U.S.
dollars are transacted in the London interbank market) preceding the
commencement of the relevant Distribution Period. The amount of the
Distribution payable for any Distribution Period will be calculated by applying
the Distribution Rate to the stated liquidation amount outstanding at the
commencement of the Distribution Period on the basis of the actual number of
days in the Distribution Period concerned divided by 360.


 


“3-Month LIBOR” as used
herein, means the London interbank offered interest rate for three-month U.S.
dollar deposits determined by the Debenture Trustee in the following order of
priority:  (i) the rate (expressed
as a percentage per annum) for U.S. dollar deposits having a three-month
maturity that appears on Telerate Page 3750 as of 11:00 a.m. (London
time) on the related Determination Date (“Telerate Page 3750” means the
display designated as “Page 3750” on the Moneyline Telerate Service or
such other page as may replace Page 3750 on that service or such
other service or services as may be nominated by the British Bankers’
Association as the information vendor for the purpose of displaying London
interbank offered rates for U.S. dollar deposits); (ii) if such rate
cannot be identified on the related Determination Date, the Debenture Trustee
will request the principal London offices of four leading banks in the London
interbank market to provide such banks’ offered quotations (expressed as
percentages per annum) to prime banks in the London interbank market for U.S.
dollar deposits having a three-month maturity as of 11:00 a.m. (London
time) on such Determination Date. If at least two quotations are provided,
3-Month LIBOR will be the arithmetic mean of such quotations; (iii) if
fewer than two such quotations are provided as requested in clause (ii) above,
the Debenture Trustee will request four major New York City banks to provide
such banks’ offered quotations (expressed as percentages per annum) to leading
European banks for loans in U.S. dollars as of 11:00 a.m. (London time) on
such Determination Date. If at least two such quotations are provided, 3-Month
LIBOR will be the arithmetic mean of such quotations; and (iv) if fewer
than two such quotations are provided as requested in clause (iii) above,
3-Month LIBOR will be a 3-Month LIBOR determined with respect to the
Distribution Period immediately preceding such current Distribution Period. If
the rate for U.S. dollar deposits having a three-month maturity that initially
appears on Telerate Page 3750 as of 11:00 a.m. (London time) on the
related Determination Date is superseded on the Telerate Page 3750 by a
corrected rate by 12:00 noon (London time) on such Determination Date, then the
corrected rate as so substituted on the applicable page will be the
applicable 3-Month LIBOR for such Determination Date.


 


The Distribution Rate for
any Distribution Period will at no time be higher than the maximum rate then
permitted by New York law as the same may be modified by United States
law.


 


All percentages resulting
from any calculations on the Capital Securities will be rounded, if necessary,
to the nearest one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upward (e.g., 9.876545% (or


 


A-1-5

















 


.09876545) being
rounded to 9.87655% (or .0987655), and all dollar amounts used in or resulting
from such calculation will be rounded to the nearest cent (with one-half cent
being rounded upward)).


 


Except as otherwise
described below, Distributions on the Capital Securities will be cumulative,
will accrue from the date of original issuance and will be payable quarterly in
arrears on March 15, June 15, September 15 and December 15
of each year or if any such day is not a Business Day, then the next succeeding
Business Day (each such day, a “Distribution Payment Date”) (it being
understood that interest accrues for any such non-Business Day), commencing on
the Distribution Payment Date in June 2006. The Debenture Issuer has the
right under the Indenture to defer payments of interest on the Debentures, so
long as no Acceleration Event of Default has occurred and is continuing, by
extending the interest payment period for up to 20 consecutive quarterly
periods (each an “Extension Period”) at any time and from time to time on the
Debentures, subject to the conditions described below, during which Extension
Period no interest shall be due and payable. During any Extension Period,
interest will continue to accrue on the Debentures, and interest on such
accrued interest will accrue at an annual rate equal to the Distribution Rate
in effect for each such Extension Period, compounded quarterly from the date
such interest would have been payable were it not for the Extension Period, to
the extent permitted by law (such interest referred to herein as “Additional
Interest”). No Extension Period may end on a date other than a
Distribution Payment Date. At the end of any such Extension Period, the
Debenture Issuer shall pay all interest then accrued and unpaid on the
Debentures (together with Additional Interest thereon); provided, however,
that no Extension Period may extend beyond the Maturity Date. Prior to the
termination of any Extension Period, the Debenture Issuer may further
extend such period, provided that such period together with all such previous
and further consecutive extensions thereof shall not exceed 20 consecutive
quarterly periods, or extend beyond the Maturity Date. Upon the termination of
any Extension Period and upon the payment of all accrued and unpaid interest
and Additional Interest, the Debenture Issuer may commence a new Extension
Period, subject to the foregoing requirements. No interest or Additional
Interest shall be due and payable during an Extension Period, except at the end
thereof, but each installment of interest that would otherwise have been due
and payable during such Extension Period shall bear Additional Interest. During
any Extension Period, Distributions on the Capital Securities shall be deferred
for a period equal to the Extension Period. If Distributions are deferred, the
Distributions due shall be paid on the date that the related Extension Period
terminates, to Holders of the Securities as they appear on the books and
records of the Trust on the record date immediately preceding such date.
Distributions on the Securities must be paid on the dates payable (after giving
effect to any Extension Period) to the extent that the Trust has funds
available for the payment of such distributions in the Property Account of the
Trust. The Trust’s funds available for Distribution to the Holders of the
Securities will be limited to payments received from the Debenture Issuer. The
payment of Distributions out of moneys held by the Trust is guaranteed by the
Guarantor pursuant to the Guarantee.


 


The Capital Securities
shall be redeemable as provided in the Declaration.


 


A-1-6

















 


ASSIGNMENT


 


FOR VALUE RECEIVED, the
undersigned assigns and transfers this Capital Security Certificate to:


 


	
   

  
	
  (Insert assignee’s
  social security or tax identification number)

  	
   

  
	
   

  
	
   

  
	
   

  
	
  (Insert address
  and zip code of assignee) and irrevocably appoints

  
	
   

  



 


agent to transfer this
Capital Security Certificate on the books of the Trust. The agent may substitute
another to act for him or her.


 


	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
	
  Signature:

  	
   

  	
   

  
				



 


(Sign exactly as your
name appears on the other side of this Capital Security Certificate)


 


Signature Guarantee:(1)


 






(1)  Signature must be guaranteed by an “eligible guarantor
institution” that is a bank, stockbroker, savings and loan association or
credit union, meeting the requirements of the Security registrar, which
requirements include membership or participation in the Securities Transfer
Agents Medallion Program (“STAMP”) or such other “signature guarantee program”
as may be determined by the Security registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.


 


A-1-7

















 


EXHIBIT A-2


 


FORM OF
COMMON SECURITY CERTIFICATE


 


THIS COMMON SECURITY HAS
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EXEMPTION FROM REGISTRATION.


 


THIS CERTIFICATE IS NOT
TRANSFERABLE EXCEPT IN COMPLIANCE WITH SECTION 8.1 OF THE DECLARATION.


 


	
  Certificate Number C-1

  	
   

  	
  928
  Common Securities

  



 


March 30,
2006


 


Certificate
Evidencing Floating Rate Common Securities


 


of


 


First Regional
Statutory Trust VI


 


First Regional Statutory
Trust VI, a statutory trust created under the laws of the State of
Delaware (the “Trust”), hereby certifies that First Regional Bancorp (the “Holder”)
is the registered owner of common securities of the Trust representing
undivided beneficial interests in the assets of the Trust (the “Common
Securities”). The Common Securities represented hereby are issued pursuant to,
and the designation, rights, privileges, restrictions, preferences and other
terms and provisions of the Common Securities shall in all respects be subject
to, the provisions of the Amended and Restated Declaration of Trust of the
Trust dated as of March 30, 2006, among Jack A. Sweeney,
H. Anthony Gartshore and Thomas McCullough, as Administrators, Wilmington
Trust Company, as Delaware Trustee, Wilmington Trust Company, as Institutional
Trustee, First Regional Bancorp, as Sponsor, and the holders from time to time
of undivided beneficial interest in the assets of the Trust including the
designation of the terms of the Common Securities as set forth in Annex I to
such amended and restated declaration, as the same may be amended from
time to time (the “Declaration”). Capitalized terms used herein but not defined
shall have the meaning given them in the Declaration. The Holder is entitled to
the benefits of the Guarantee to the extent provided therein. The Sponsor will
provide a copy of the Declaration, the Guarantee and the Indenture to the
Holder without charge upon written request to the Sponsor at its principal
place of business.


 


As set forth in the
Declaration, when an Event of Default has occurred and is continuing, the
rights of Holders of Common Securities to payment in respect of Distributions
and payments upon Liquidation, redemption or otherwise are subordinated to the
rights of payment of Holders of the Capital Securities.


 


Upon receipt of this
Certificate, the Holder is bound by the Declaration and is entitled to the
benefits thereunder.


 


By acceptance of this
Certificate, the Holder agrees to treat, for United States federal income tax
purposes, the Debentures as indebtedness and the Common Securities as evidence
of undivided beneficial ownership in the Debentures.


 


This Common Security is
governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to principles of conflict of laws.


 


A-2-1

















 


IN WITNESS WHEREOF, the
Trust has duly executed this certificate.


 


	
   

  	
  FIRST REGIONAL STATUTORY TRUST VI

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: Administrator

  
					



 


A-2-2

















 


[FORM OF
REVERSE OF COMMON SECURITY]


 


Distributions payable on
each Common Security will be payable at an annual rate equal to 6.47938%
beginning on (and including) the date of original issuance and ending on (but
excluding) the Distribution Payment Date in June 2006 and at an annual
rate for each successive period beginning on (and including) the Distribution
Payment Date in June 2006, and each succeeding Distribution Payment Date,
and ending on (but excluding) the next succeeding Distribution Payment Date
(each a “Distribution Period”), equal to 3-Month LIBOR,
determined as described below, plus 1.50% (the “Coupon Rate”), applied to the
stated liquidation amount of $1,000.00 per Common Security, such rate being the
rate of interest payable on the Debentures to be held by the Institutional
Trustee. Distributions in arrears will bear interest thereon compounded
quarterly at the Distribution Rate (to the extent permitted by applicable law).
The term “Distributions” as used herein includes cash distributions and any
such compounded distributions unless otherwise noted. A Distribution is payable
only to the extent that payments are made in respect of the Debentures held by
the Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor. As used herein, “Determination Date” means the date that is
two London Banking Days (i.e., a business day in which dealings in deposits in
U.S. dollars are transacted in the London interbank market) preceding the
commencement of the relevant Distribution Period. The amount of the
Distribution payable for any Distribution Period will be calculated by applying
the Distribution Rate to the stated liquidation amount outstanding at the
commencement of the Distribution Period on the basis of the actual number of
days in the Distribution Period concerned divided by 360.


 


“3-Month
LIBOR” as used herein, means the London interbank offered interest rate for
three-month U.S. dollar deposits determined
by the Debenture Trustee in the following order of priority:  (i) the rate (expressed as a percentage
per annum) for U.S. dollar deposits having a three-month
maturity that appears on Telerate Page 3750 as of 11:00 a.m. (London
time) on the related Determination Date (“Telerate Page 3750” means the
display designated as “Page 3750” on the Moneyline Telerate Service or
such other page as may replace Page 3750 on that service or such
other service or services as may be nominated by the British Bankers’
Association as the information vendor for the purpose of displaying London
interbank offered rates for U.S. dollar deposits); (ii) if such rate
cannot be identified on the related Determination Date, the Debenture Trustee
will request the principal London offices of four leading banks in the London
interbank market to provide such banks’ offered quotations (expressed as
percentages per annum) to prime banks in the London interbank market for U.S.
dollar deposits having a three-month maturity
as of 11:00 a.m. (London time) on such Determination Date. If at least two
quotations are provided, 3-Month LIBOR
will be the arithmetic mean of such quotations; (iii) if fewer than two
such quotations are provided as requested in clause (ii) above, the Debenture
Trustee will request four major New York City banks to provide such banks’
offered quotations (expressed as percentages per annum) to leading European
banks for loans in U.S. dollars as of 11:00 a.m. (London time) on such
Determination Date. If at least two such quotations are provided, 3-Month LIBOR will be the arithmetic mean of such quotations;
and (iv) if fewer than two such quotations are provided as requested in
clause (iii) above, 3-Month LIBOR
will be a 3-Month LIBOR determined with
respect to the Distribution Period immediately preceding such current
Distribution Period. If the rate for U.S. dollar deposits having a three-month maturity that initially appears on Telerate Page 3750
as of 11:00 a.m. (London time) on the related Determination Date is
superseded on the Telerate Page 3750 by a corrected rate by 12:00 noon
(London time) on such Determination Date, then the corrected rate as so
substituted on the applicable page will be the applicable 3-Month LIBOR for such Determination Date.


 


The Distribution Rate for
any Distribution Period will at no time be higher than the maximum rate then
permitted by New York law as the same may be modified by United States
law.


 


All percentages resulting
from any calculations on the Common Securities will be rounded, if necessary,
to the nearest one hundred-thousandth of
a percentage point, with five one-millionths of
a percentage point rounded upward (e.g., 9.876545% (or


 


A-2-3

















 


.09876545) being
rounded to 9.87655% (or .0987655), and all dollar amounts used in or resulting
from such calculation will be rounded to the nearest cent (with one-half cent being rounded upward)).


 


Except as otherwise
described below, Distributions on the Common Securities will be cumulative,
will accrue from the date of original issuance and will be payable quarterly in
arrears on March 15, June 15, September 15 and December 15
of each year or if any such day is not a Business Day, then the next succeeding
Business Day (each such day, a “Distribution Payment Date”) (it being
understood that interest accrues for any such non-Business Day), commencing on
the Distribution Payment Date in June 2006. The Debenture Issuer has the
right under the Indenture to defer payments of interest on the Debentures, so
long as no Acceleration Event of Default has occurred and is continuing, by
extending the interest payment period for up to 20 consecutive quarterly
periods (each an “Extension Period”) at any time and from time to time on the
Debentures, subject to the conditions described below, during which Extension
Period no interest shall be due and payable. During any Extension Period,
interest will continue to accrue on the Debentures, and interest on such
accrued interest will accrue at an annual rate equal to the Distribution Rate
in effect for each such Extension Period, compounded quarterly from the date
such interest would have been payable were it not for the Extension Period, to
the extent permitted by law (such interest referred to herein as “Additional
Interest”). No Extension Period may end on a date other than a
Distribution Payment Date. At the end of any such Extension Period, the
Debenture Issuer shall pay all interest then accrued and unpaid on the
Debentures (together with Additional Interest thereon); provided, however,
that no Extension Period may extend beyond the Maturity Date. Prior to the
termination of any Extension Period, the Debenture Issuer may further
extend such period, provided that such period together with all such previous and
further consecutive extensions thereof shall not exceed 20 consecutive
quarterly periods, or extend beyond the Maturity Date. Upon the termination of
any Extension Period and upon the payment of all accrued and unpaid interest
and Additional Interest, the Debenture Issuer may commence a new Extension
Period, subject to the foregoing requirements. No interest or Additional
Interest shall be due and payable during an Extension Period, except at the end
thereof, but each installment of interest that would otherwise have been due
and payable during such Extension Period shall bear Additional Interest. During
any Extension Period, Distributions on the Common Securities shall be deferred
for a period equal to the Extension Period. If Distributions are deferred, the
Distributions due shall be paid on the date that the related Extension Period
terminates, to Holders of the Securities as they appear on the books and
records of the Trust on the record date immediately preceding such date.
Distributions on the Securities must be paid on the dates payable (after giving
effect to any Extension Period) to the extent that the Trust has funds
available for the payment of such distributions in the Property Account of the
Trust. The Trust’s funds available for Distribution to the Holders of the
Securities will be limited to payments received from the Debenture Issuer.


 


The Common Securities
shall be redeemable as provided in the Declaration.


 


A-2-4

















 


ASSIGNMENT


 


FOR VALUE RECEIVED, the
undersigned assigns and transfers this Common Security Certificate to:


 


	
   

  
	
  (Insert assignee’s
  social security or tax identification number)

  	
   

  
	
   

  
	
   

  
	
   

  
	
  (Insert address
  and zip code of assignee) and irrevocably appoints

  
	
   

  



 


	
                                                                                           agent
  to transfer this Common Security Certificate on the books of the Trust. The
  agent may substitute another to act for him or her.

  
	
   

  
	
  Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature:

  	
   

  	
   

  
	
   

  
	
  (Sign exactly as
  your name appears on the other side of this Common Security Certificate)

  
	
   

  
	
  Signature:

  	
   

  	
   

  
	
   

  
	
  (Sign exactly as
  your name appears on the other side of this Common Security Certificate)

  
						



 


Signature Guarantee(2)


 






(2) Signature must be guaranteed by an “eligible guarantor institution”
that is a bank, stockbroker, savings and loan association or credit union,
meeting the requirements of the Security registrar, which requirements include
membership or participation in the Securities Transfer Agents Medallion Program
(“STAMP”) or such other “signature guarantee program” as may be determined
by the Security registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.


 


A-2-5

















 


EXHIBIT B


 


SPECIMEN
OF INITIAL DEBENTURE


 


[incorporated by reference to
Exhibit A to the Indenture dated March 30, 2006, which indenture is included as
Exhibit 4.1 to the Form 8-K of which this Exhibit 4.3 forms a part]


 



















 


EXHIBIT C


 


PLACEMENT
AGREEMENT