exv10w7



 



Exhibit 10.7




AMENDED AND RESTATED TRUST AGREEMENT




among




NEW CENTURY FINANCIAL CORPORATION,

as Depositor




WELLS FARGO BANK, N.A.,

as Property Trustee




WELLS FARGO DELAWARE TRUST COMPANY,

as Delaware Trustee




and




THE ADMINISTRATIVE TRUSTEES NAMED HEREIN

as Administrative Trustees




 






Dated as of September 13, 2006




 






NEW CENTURY CAPITAL TRUST I




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	ARTICLE I            DEFINED TERMS	 	 	1	 
	Section 1.1.	 	Definitions
	 	 	1	 
	ARTICLE II            THE TRUST	 	 	12	 
	Section 2.1.	 	Name
	 	 	12	 
	Section 2.2.	 	Office of the Delaware Trustee; Office of the Trust
	 	 	12	 
	Section 2.3.	 	Initial Contribution of Trust Property; Fees, Costs and Expenses
	 	 	12	 
	Section 2.4.	 	Purposes of Trust
	 	 	12	 
	Section 2.5.	 	Authorization to Enter into Certain Transactions
	 	 	13	 
	Section 2.6.	 	Assets of Trust
	 	 	16	 
	Section 2.7.	 	Title to Trust Property
	 	 	16	 
	 	 	 
	 	 	 	 
	ARTICLE III            PAYMENT ACCOUNT; PAYING AGENTS	 	 	16	 
	Section 3.1.	 	Payment Account
	 	 	16	 
	Section 3.2.	 	Appointment of Paying Agents
	 	 	16	 
	 	 	 
	 	 	 	 
	ARTICLE IV            DISTRIBUTIONS; REDEMPTION	 	 	17	 
	Section 4.1.	 	Distributions
	 	 	17	 
	Section 4.2.	 	Redemption
	 	 	18	 
	Section 4.3.	 	Subordination of Common Securities
	 	 	21	 
	Section 4.4.	 	Payment Procedures
	 	 	22	 
	Section 4.5.	 	Withholding Tax
	 	 	22	 
	Section 4.6.	 	Tax Returns and Other Reports
	 	 	22	 
	Section 4.7.	 	Payment of Taxes, Duties, Etc. of the Trust
	 	 	23	 
	Section 4.8.	 	Payments under Indenture or Pursuant to Direct Actions
	 	 	23	 
	Section 4.9.	 	Exchanges
	 	 	23	 
	Section 4.10.	 	Calculation Agent
	 	 	24	 
	Section 4.11.	 	Certain Accounting Matters
	 	 	24	 
	 	 	 
	 	 	 	 
	ARTICLE V            SECURITIES	 	 	25	 
	Section 5.1.	 	Initial Ownership
	 	 	25	 
	Section 5.2.	 	Authorized Trust Securities
	 	 	25	 






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	 	 	 	 	Page	 
	Section 5.3. 	 	Issuance of the Common Securities; Subscription and Purchase of Notes
	 	 	26	 
	Section 5.4. 	 	The Securities Certificates
	 	 	26	 
	Section 5.5. 	 	Rights of Holders
	 	 	27	 
	Section 5.6. 	 	Book-Entry Preferred Securities
	 	 	27	 
	Section 5.7. 	 	Registration of Transfer and Exchange of Preferred Securities Certificates
	 	 	29	 
	Section 5.8. 	 	Mutilated, Destroyed, Lost or Stolen Securities Certificates
	 	 	30	 
	Section 5.9. 	 	Persons Deemed Holders
	 	 	31	 
	Section 5.10.	 	Cancellation
	 	 	31	 
	Section 5.11.	 	Ownership of Common Securities by Depositor
	 	 	32	 
	Section 5.12.	 	Restrictive Legends
	 	 	32	 
	Section 5.13.	 	Form of Certificate of Authentication
	 	 	35	 
	 	 	 
	 	 	 	 
	ARTICLE VI            MEETINGS; VOTING; ACTS OF HOLDERS	 	 	35	 
	Section 6.1. 	 	Notice of Meetings
	 	 	35	 
	Section 6.2. 	 	Meetings of Holders of the Preferred Securities
	 	 	35	 
	Section 6.3. 	 	Voting Rights
	 	 	36	 
	Section 6.4. 	 	Proxies, Etc.
	 	 	36	 
	Section 6.5. 	 	Holder Action by Written Consent
	 	 	36	 
	Section 6.6. 	 	Record Date for Voting and Other Purposes
	 	 	36	 
	Section 6.7. 	 	Acts of Holders
	 	 	38	 
	Section 6.8. 	 	Inspection of Records
	 	 	38	 
	Section 6.9. 	 	Limitations on Voting Rights
	 	 	38	 
	Section 6.10.	 	Acceleration of Maturity; Rescission of Annulment; Waivers of Past Defaults
	 	 	39	 
	 	 	 
	 	 	 	 
	ARTICLE VII            REPRESENTATIONS AND WARRANTIES	 	 	41	 
	Section 7.1. 	 	Representations and Warranties of the Property Trustee and the Delaware Trustee
	 	 	41	 
	Section 7.2. 	 	Representations and Warranties of Depositor
	 	 	42	 
	 	 	 
	 	 	 	 
	ARTICLE VIII            THE TRUSTEES	 	 	44	 
	Section 8.1. 	 	Number of Trustees
	 	 	44	 
	Section 8.2. 	 	Property Trustee Required
	 	 	44	 
	Section 8.3. 	 	Delaware Trustee Required
	 	 	44	 






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	 	 	 	 	Page	 
	Section 8.4. 	 	Appointment of Administrative Trustees
	 	 	45	 
	Section 8.5. 	 	Duties and Responsibilities of the Trustees
	 	 	45	 
	Section 8.6. 	 	Notices of Defaults and Extensions
	 	 	46	 
	Section 8.7. 	 	Certain Rights of Property Trustee
	 	 	47	 
	Section 8.8. 	 	Delegation of Power
	 	 	49	 
	Section 8.9. 	 	May Hold Securities
	 	 	50	 
	Section 8.10.	 	Compensation; Reimbursement; Indemnity
	 	 	50	 
	Section 8.11.	 	Resignation and Removal; Appointment of Successor
	 	 	51	 
	Section 8.12.	 	Acceptance of Appointment by Successor
	 	 	52	 
	Section 8.13.	 	Merger, Conversion, Consolidation or Succession to Business
	 	 	52	 
	Section 8.14.	 	Not Responsible for Recitals or Issuance of Securities
	 	 	53	 
	Section 8.15.	 	Property Trustee May File Proofs of Claim
	 	 	53	 
	Section 8.16.	 	Reports to the Property Trustee and Holders
	 	 	54	 
	 	 	 
	 	 	 	 
	ARTICLE IX            TERMINATION, LIQUIDATION AND MERGER	 	 	56	 
	Section 9.1. 	 	Dissolution Upon Expiration Date
	 	 	55	 
	Section 9.2. 	 	Early Termination
	 	 	55	 
	Section 9.3. 	 	Termination
	 	 	55	 
	Section 9.4. 	 	Liquidation
	 	 	55	 
	Section 9.5. 	 	Mergers, Consolidations, Amalgamations or Replacements of Trust
	 	 	57	 
	 	 	 
	 	 	 	 
	ARTICLE X            MISCELLANEOUS PROVISIONS	 	 	58	 
	Section 10.1. 	 	Limitation of Rights of Holders
	 	 	58	 
	Section 10.2. 	 	Agreed Tax Treatment of Trust and Trust Securities
	 	 	59	 
	Section 10.3. 	 	Amendment
	 	 	59	 
	Section 10.4. 	 	Separability
	 	 	61	 
	Section 10.5 .	 	Governing Law
	 	 	61	 
	Section 10.6. 	 	Successors
	 	 	62	 
	Section 10.7. 	 	Headings
	 	 	62	 
	Section 10.8. 	 	Reports, Notices and Demands
	 	 	62	 
	Section 10.9. 	 	Agreement Not to Petition
	 	 	63	 
	Section 10.10.	 	Counterparts
	 	 	63	 






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EXHIBITS AND SCHEDULE




	 	 	 
	Exhibit A

	 	Form of Certificate of Trust of New Century Capital Trust I
	 
	 	 
	Exhibit B

	 	Form of Common Securities Certificate
	 
	 	 
	Exhibit C

	 	Form of Preferred Securities Certificate
	 
	 	 
	Exhibit D

	 	Junior Subordinated Indenture
	 
	 	 
	Exhibit E

	 	Form of Transferee Certificate to be Executed by Transferees
	 
	 	 
	Exhibit F

	 	Form of Officers’ Certificate
Pursuant to Section 8.16(a)
	 
	 	 
	Exhibit G

	 	Form of Officer’s Financial Certificate
	 
	 	 
	Schedule A

	 	Determination of LIBOR






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AMENDED AND RESTATED TRUST AGREEMENT




     This AMENDED AND RESTATED TRUST AGREEMENT, dated as of September 13, 2006 (as further defined
in Section 1.1, this “Trust Agreement”), among (i) New Century Financial
Corporation, a Maryland corporation (including any successors or permitted assigns, the
“Depositor”), (ii) Wells Fargo Bank, N.A., a national banking association, as property
trustee (in such capacity, the “Property Trustee”), (iii) Wells Fargo Delaware Trust
Company, a Delaware corporation, as Delaware trustee (in such capacity, the “Delaware
Trustee”), and (iv) Brad A. Morrice, an individual, and Patti M. Dodge, an individual, each of
whose address is c/o New Century Financial Corporation, 18400 Von Karman, Suite 1000, Irvine,
California 92612, as administrative trustees (in such capacities, each an “Administrative
Trustee” and, collectively, the “Administrative Trustees” and, together with the
Property Trustee and the Delaware Trustee, the “Trustees”).



W I T N E S S E T H:




     WHEREAS, the Depositor and the Delaware Trustee have heretofore created a Delaware statutory
trust pursuant to the Delaware Statutory Trust Act by entering into a Trust Agreement, dated as of
September 12, 2006 (the “Original Trust Agreement”), and by executing and filing with the
Secretary of State of the State of Delaware the Certificate of Trust, substantially in the form
attached hereto as Exhibit A (the “Certificate of Trust”); and



     WHEREAS, the Depositor and the Trustees desire to amend and restate the Original Trust
Agreement in its entirety as set forth herein to provide for, among other things, (i) the issuance
and sale of the Common Securities (as defined below) by the Trust to the Depositor, (ii) the
issuance and sale of the Preferred Securities (as defined below) by the Trust pursuant to the
Purchase Agreement and (iii) the acquisition by the Trust from the Depositor of all of the right,
title and interest in and to the Notes (as defined below);



     NOW, THEREFORE, in consideration of the agreements and obligations set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each party, for the benefit of the other parties and for the benefit of the Holders,
hereby amends and restates the Original Trust Agreement in its entirety and agrees as follows:



ARTICLE I




DEFINED TERMS




     Section 1.1. Definitions. 



     For all purposes of this Trust Agreement, except as otherwise expressly provided or unless the
context otherwise requires:



          (a) the terms defined in this Article I have the meanings assigned to them in
this Article I;




          (b) the words “include,” “includes” and “including” shall be deemed to be followed by
the phrase “without limitation”;




Schedule A-1




 









 








          (c) all accounting terms used but not defined herein have the meanings assigned to them
in accordance with United States generally accepted accounting principles;




          (d) unless the context otherwise requires, any reference to an “Article”, a “Section”,
a “Schedule” or an “Exhibit” refers to an Article, a Section, a Schedule or an Exhibit, as
the case may be, of or to this Trust Agreement;




          (e) the words “hereby,” “herein,” “hereof” and “hereunder” and other words of similar
import refer to this Trust Agreement as a whole and not to any particular Article, Section
or other subdivision;




          (f) a reference to the singular includes the plural and vice versa; and




          (g) the masculine, feminine or neuter genders used herein shall include the masculine,
feminine and neuter genders.




     “Act” when used with respect to any Holder, has the meaning specified in Section
6.7.



     “Additional Interest” has the meaning specified in Section 1.1 of the Indenture.



     “Additional Interest Amount” means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest paid by the Depositor
on a Like Amount of Notes for such period.



     “Additional Tax Sums” has the meaning specified in Section 10.5 of the Indenture.



     “Additional Taxes” has the meaning specified in Section 1.1 of the Indenture.



     “Administrative Trustee” means each of the Persons identified as an
“Administrative Trustee” in the preamble to this Trust Agreement, solely in each such
Person’s capacity as Administrative Trustee of the Trust and not in such Person’s individual
capacity, or any successor Administrative Trustee appointed as herein provided.



     “Affiliate” of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified Person.
For the purposes of this definition, “control” when used with respect to any specified
Person, means the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or otherwise; and the
terms “controlling” and “controlled” have meanings correlative to the foregoing.



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



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



2









 






(a) the entry of a decree or order by a court having jurisdiction in the
premises (i) judging such Person a bankrupt or insolvent, (ii) approving as
properly filed a petition seeking reorganization, arrangement, adjudication
or composition of or in respect of such Person under any applicable
Bankruptcy Laws, (iii) appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of such Person or
of any substantial part of its property or (iv) ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order
unstayed and in effect for a period of sixty (60) consecutive days; or




(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy
or insolvency proceedings against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any applicable
Bankruptcy Laws, or the consent by it to the filing of any such petition or
to the appointment of a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of such Person or of any substantial part
of its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due and its willingness to be adjudicated a
bankrupt or insolvent, or the taking of corporate action by such Person in
furtherance of any such action.



     “Bankruptcy Laws” means all federal and state bankruptcy, insolvency, reorganization
and other similar laws, including the United States Bankruptcy Code.



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



     “Business Day” means a day other than (a) a Saturday or Sunday, (b) a day on which
banking institutions in the City of New York are authorized or required by law or executive order
to remain closed or (c) a day on which the Corporate Trust Office is closed for business.



     “Calculation Agent” means the Person specified in Section 4.10.



     “Certificate of Trust” has the meaning specified in the recitals to this Trust
Agreement.



     “Change of Control Election” has the meaning specified in the Indenture.



     “Closing Date” has the meaning specified in the Purchase Agreement.



     “Code” means the United States Internal Revenue Code of 1986 or any successor statute
thereto, in each case as amended from time to time.



     “Commission” means the Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act or, if at any time after the execution of this Trust
Agreement such commission is not existing and performing the duties assigned to it, then the body
performing such duties at such time.



3









 





     “Common Securities Certificate” means a certificate evidencing ownership of Common
Securities, substantially in the form attached hereto as Exhibit B.



     “Common Securities Subscription Agreement” means the agreement of even date herewith
by and between the Depositor and the Trust pertaining to the sale and purchase of the Common
Securities.



     “Common Security” means a common security of the Trust, denominated as such and
representing an undivided common beneficial interest in the assets of the Trust, having a
Liquidation Amount of $1,000 and having the rights provided therefor in this Trust Agreement.



     “Corporate Trust Office” means the principal office of the Property Trustee at which
any particular time its corporate trust business shall be administered, which office at the date of
this Trust Agreement is located at 919 North Market Street, Suite 700, Wilmington, Delaware 19801,
Attn: Corporate Trust Department—New Century Capital Trust I.



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



     “Delaware Statutory Trust Act” means Chapter 38 of Title 12 of the Delaware Code, 12
Del. Code § 3801 et seq., or any successor statute thereto, in each case as amended from time to
time.



     “Delaware Trustee” means the Person identified as the “Delaware Trustee” in the
preamble to this Trust Agreement, solely in its capacity as Delaware Trustee of the Trust and not
in its individual capacity, or its successor in interest in such capacity, or any successor
Delaware Trustee appointed as herein provided.



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



     “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.



     “Depositor” has the meaning specified in the preamble to this Trust Agreement and any
successors and permitted assigns.



     “Depositor Affiliate” has the meaning specified in Section 4.9(a).



     “Distribution Date” has the meaning specified in Section 4.1(a)(i).



     “Distributions” means amounts payable in respect of the Trust Securities as provided
in Section 4.1.



     “DTC” means The Depository Trust Company, a New York corporation, or any successor
thereto.



4









 





     “Early Termination Event” has the meaning specified in Section 9.2.



     “EDGAR” has the meaning specified in Section 4.11(c).



     “Equity Interests” means (a) the partnership interests (both common and preferred
partnership interests) in a partnership (general or limited), (b) the membership interests in a
limited liability company (both common and preferred membership interests) and (c) the shares or
stock interest (both common stock and preferred stock) in a corporation.



     “ERISA” means the Employee Retirement Income Security Act of 1974 or any successor
statute thereto, in each case as amended from time to time.



     “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 a Note Event of Default; or




(b) default by the Trust in the payment of any Distribution when it becomes
due and payable, and continuation of such default for a period of thirty
(30) days; or




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




(d) default in the performance, or breach, in any material respect of any
covenant or warranty of the Trustees in this Trust Agreement (other than
those specified in clause (b) or (c) above) and continuation of such default
or breach for a period of thirty (30) days after there has been given, by
registered or certified mail, to the Trustees and to the Depositor by the
Holders of at least twenty-five percent (25%) in aggregate Liquidation
Amount of the Outstanding Preferred 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 (a “Notice of Default”);
or




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



     “Exchange Act” means the Securities Exchange Act of 1934 or any successor statute
thereto, in each case as amended from time to time.



     “Expiration Date” has the meaning specified in Section 9.1.



     “Fiscal Year” shall be the fiscal year of the Trust, which shall be the calendar year,
or such other period as is required by the Code.



5









 





     “Fixed Rate Period” shall mean the period through the interest payment date in
September 2011.



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



     “Holder” means a Person in whose name a Trust Security or Trust Securities are
registered in the Securities Register; any such Person shall be deemed to be a “beneficial owner”
within the meaning of the Delaware Statutory Trust Act.



     “Indemnified Person” has the meaning specified in Section 8.10(c).



     “Indenture” means the Junior Subordinated Indenture executed and delivered by the
Depositor and the Note Trustee contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the holders of the Notes, a copy of which is attached hereto as
Exhibit D, or as it may from time to time be amended or supplemented by one or more
amendments or indentures supplemental thereto entered into pursuant to the applicable provisions
thereof.



     “Indenture Redemption Price” means the Optional Note Redemption Price, Mandatory
Redemption Price or the Special Note Redemption Price, as applicable.



     “Interest Payment Date” has the meaning specified in Section 1.1 of the Indenture.



     “Investment Company Act” means the Investment Company Act of 1940 or any successor
statute thereto, in each case as amended from time to time.



     “Investment Company Event” has the meaning specified in Section 1.1 of the Indenture.



     “Junior Subordinated Note Purchase Agreement” means the agreement of even date
herewith by and between the Depositor and the Trust pertaining to the issuance and purchase of the
Notes.



     “LIBOR” has the meaning specified in Schedule A.



     “LIBOR Business Day” has the meaning specified in Schedule A.



     “LIBOR Determination Date” has the meaning specified in Schedule A.



     “Lien” means any lien, pledge, charge, encumbrance, mortgage, deed of trust, adverse
ownership interest, hypothecation, assignment, security interest or preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever.



     “Like Amount” means (a) with respect to a redemption of any Trust Securities, Trust
Securities having an aggregate Liquidation Amount equal to the aggregate principal amount of Notes
to be contemporaneously redeemed or paid at maturity in accordance with the Indenture, the proceeds
of which will be used to pay the Redemption Price of such Trust Securities, (b) with respect to a
distribution of Notes to Holders of Trust Securities in connection with a dissolution



6









 







of the Trust, Notes having an aggregate principal amount equal to the aggregate Liquidation
Amount of the Trust Securities of the Holder to whom such Notes are distributed and (c) with
respect to any distribution of Additional Interest Amounts to Holders of Trust Securities, Notes
having an aggregate principal amount equal to the aggregate Liquidation Amount of the Trust
Securities in respect of which such distribution is made.



     “Liquidation Amount” means the stated liquidation amount of $1,000 per Trust Security.



     “Liquidation Date” means the date on which assets are to be distributed to Holders in
accordance with Section 9.4(a) hereunder following dissolution of the Trust.



     “Liquidation Distribution” has the meaning specified in Section 9.4(d).



     “Mandatory Note Redemption Price” means, with respect to any Note to be redeemed on
the Redemption Date for a mandatory redemption under the Indenture, an amount equal to one hundred
percent (100%) of the principal amount of such Note (or the redeemed portion thereof, as
applicable), together with accrued and unpaid interest, including any Additional Interest, to but
excluding the date fixed as such Redemption Date.



     “Mandatory Redemption Price” means, with respect to any Trust Security, an amount
equal to one hundred percent (100%) of the Liquidation Amount of such Trust Security on the
Redemption Date, plus accumulated and unpaid Distribution to but excluding the Redemption Date,
plus related amount of premium, if any, and/or accrued and unpaid interest, including Additional
Interest, if any, thereon.



     “Majority in Liquidation Amount” means Common or Preferred Securities, as the case may
be, representing more than fifty percent (50%) of the aggregate Liquidation Amount of all (or a
specified group of) then Outstanding Common or Preferred Securities, as the case may be.



     “Note Event of Default” means any “Event of Default” specified in Section 5.1
of the Indenture.



     “Note Redemption Date” means, with respect to any Notes to be redeemed under the
Indenture, the date fixed for redemption of such Notes under the Indenture.



     “Note Trustee” means the Person identified as the “Trustee” in the Indenture, solely
in its capacity as Trustee pursuant to the Indenture and not in its individual capacity, or its
successor in interest in such capacity, or any successor Trustee appointed as provided in the
Indenture.



     “Notes” means the Depositor’s Junior Subordinated Notes issued pursuant to the
Indenture.



     “Notice of Default” has the meaning specified in clause (d) of the definition of Event
of Default in this Section 1.1.



     “Officers’ Certificate” means a certificate signed by the Chief Executive Officer, the
President or an Executive Vice President, and by the Chief Financial Officer, Treasurer or an
Assistant Treasurer, the Secretary or Assistant Secretary of the Depositor, and delivered to the



7









 







Trustees. Any Officers’ Certificate delivered with respect to compliance with a condition or
covenant provided for in this Trust Agreement (other than the certificate provided pursuant to
Section 8.16 which is not an Officers’ Certificate) shall include:




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




(b) a brief statement of the nature and scope of the review or inquiry
undertaken by such officer in rendering the Officers’ Certificate;




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




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



     “Operative Documents” means the Purchase Agreement, the Indenture, this Trust
Agreement, the Notes, the Common Securities Subscription Agreement, the Junior Subordinated Note
Purchase Agreement and the Trust Securities.



     “Opinion of Counsel” means a written opinion of counsel, who may be counsel for, or an
employee of, the Depositor or any Affiliate of the Depositor.



     “Optional Note Redemption Price” means, with respect to any Note to be redeemed on any
Redemption Date for an optional redemption under the Indenture, an amount equal to one hundred
percent (100%) of the outstanding principal amount of such Note (or the redeemed portion thereof,
as applicable), together with accrued and unpaid interest, including any Additional Interest (to
the extent legally enforceable), thereon to but excluding the date fixed as such Redemption Date.



     “Optional Redemption Price” means, with respect to any Trust Security, an amount equal
to one hundred percent (100%) of the Liquidation Amount of such Trust Security on the Redemption
Date, plus accumulated and unpaid Distributions through but excluding the Redemption Date, plus the
related amount of the premium, if any, and/or accrued and unpaid interest, including Additional
Interest, if any, thereon paid by the Depositor upon the concurrent redemption or payment at
maturity of a Like Amount of Notes.



     “Original Issue Date” means the date of original issuance of the Trust Securities.



     “Original Trust Agreement” has the meaning specified in the recitals to this Trust
Agreement.



     “Outstanding” means, when used in reference to any Trust Securities, as of the date of
determination, all Trust Securities theretofore executed and delivered under this Trust Agreement,
except:



8









 






(a) Trust Securities theretofore canceled by the Property Trustee or
delivered to the Property Trustee for cancellation;




(b) Trust Securities for which payment or redemption money in the necessary
amount has been theretofore deposited with the Property Trustee or any
Paying Agent in trust for the Holders of such Trust Securities;
provided, that, if such Trust Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Trust Agreement or
provision therefor satisfactory to the Property Trustee has been made; and




(c) Trust Securities that have been paid or in substitution for or in lieu
of which other Trust Securities have been executed and delivered pursuant to
the provisions of this Trust Agreement, unless proof satisfactory to the
Property Trustee is presented that any such Trust Securities are held by
Holders in whose hands such Trust Securities are valid, binding and legal
obligations of the Trust;


provided, that in determining whether the Holders of the requisite Liquidation Amount of
the Outstanding Preferred Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Preferred Securities owned by the Depositor, any Trustee or
any Affiliate of the Depositor or of any Trustee shall be disregarded and deemed not to be
Outstanding, except that (i) in determining whether any Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or waiver, only Preferred
Securities that such Trustee knows to be so owned shall be so disregarded and (ii) the foregoing
shall not apply at any time when all of the Outstanding Preferred Securities are owned by the
Depositor, one or more of the Trustees and/or any such Affiliate. Preferred Securities so owned
that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Administrative Trustees the pledgee’s right so to act with respect to such
Preferred Securities and that the pledgee is not the Depositor, any Trustee or any Affiliate of the
Depositor or of any Trustee.




     “Owner” means each Person who is the beneficial owner of Book-Entry Preferred
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” means any Person authorized by the Administrative Trustees to pay
Distributions or other amounts in respect of any Trust Securities on behalf of the Trust.



     “Payment Account” means a segregated non-interest-bearing corporate trust account
maintained by the Property Trustee for the benefit of the Holders in which all amounts paid in
respect of the Notes will be held and from which the Property Trustee, through the Paying Agent,
shall make payments to the Holders in accordance with Sections 3.1, 4.1 and
4.2.



     “Person” means a legal person, including any individual, corporation, estate,
partnership (general or limited), joint venture, association, joint stock company, company, limited
liability



9









 







company, trust, unincorporated association or government, or any agency or political
subdivision thereof, or any other entity of whatever nature.



     “Preferred Securities Certificate” means a certificate evidencing ownership of
Preferred Securities, substantially in the form attached as Exhibit C.



     “Preferred Security” means a preferred security of the Trust, denominated as such and
representing an undivided preferred beneficial interest in the assets of the Trust, having a
Liquidation Amount of $1,000 and having the rights provided therefor in this Trust Agreement.



     “Property Trustee” means the Person identified as the “Property Trustee” in the
preamble to this Trust Agreement, solely in its capacity as Property Trustee of the Trust and not
in its individual capacity, or its successor in interest in such capacity, or any successor
Property Trustee appointed as herein provided.



     “Purchase Agreement” means the Preferred Securities Purchase Agreement executed and
delivered by the Trust, the Depositor and Kodiak Warehouse LLC, as purchaser, contemporaneously
with the execution and delivery of this Trust Agreement, as amended from time to time.



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



     “QIB/QP” means a QIB that is also a QP.



     “QP” means a “qualified purchaser” as defined in Section 2(a)(51) under the Investment
Company Act of 1940.



     “Redemption Date” means, with respect to any Trust Security to be redeemed, the date
fixed for such redemption by or pursuant to this Trust Agreement; provided, that each Note
Redemption Date and the stated maturity (or any date of principal repayment upon early maturity) of
the Notes shall be a Redemption Date for a Like Amount of Trust Securities.



     “Redemption Price” means the Special Redemption Price, Mandatory Redemption Price or
Optional Redemption Price, as applicable. If the Depositor has redeemed the Notes at the Special
Note Redemption Price, the Trust shall redeem the Trust Securities at the Special Redemption Price.
If the Depositor has redeemed the Notes at the Optional Note Redemption Price, the Trust shall
redeem the Trust Securities at the Optional Redemption Price. If the Depositor has redeemed the
Notes at the Mandatory Note Redemption Price, the Trust shall redeem the Trust Securities at the
Mandatory Redemption Price.



     “Reference Banks” has the meaning specified in Schedule A.



     “Responsible Officer” means, with respect to the Property Trustee, the officer in the
corporate trust department of the Property Trustee having direct responsibility for the
administration of this Trust Agreement and also means, with respect to a particular corporate trust
matter, any other officer of the Property Trustee to whom such matter is referred because of that
officer’s knowledge of and familiarity with the particular subject.



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     “Securities Act” means the Securities Act of 1933 or any successor statute thereto, in
each case as amended from time to time.



     “Securities Certificate” means any one of the Common Securities Certificates or the
Preferred Securities Certificates.



     “Securities Register” and “Securities Registrar” have the respective meanings
specified in Section 5.7(a).



     “Special Note Redemption Price” means, with respect to any Note to be redeemed on any
Redemption Date under the Indenture, an amount equal to one hundred seven and one-half percent
(107.5%) of the outstanding principal amount of such Note, together with accrued interest,
including Additional Interest, to but excluding the date fixed as such Redemption Date.



     “Special Redemption Price” means, with respect to any Trust Security, an amount equal
to one hundred seven and one-half percent (107.5%) of the Liquidation Amount of such Trust Security
on the Redemption Date, plus accumulated and unpaid Distributions through but excluding the
Redemption Date, plus the related amount of the premium, if any, and/or accrued interest, including
Additional Interest, if any, thereon paid by the Depositor upon the concurrent redemption or
payment at maturity of a Like Amount of Notes.



     “Successor Securities” has the meaning specified in Section 9.5(a).



     “Tax Event” has the meaning specified in Section 1.1 of the Indenture.



     “Trust” means the Delaware statutory trust known as “New Century Capital Trust I,”
which was created on September 12, 2006 under the Delaware Statutory Trust Act pursuant to the
Original Trust Agreement and the filing of the Certificate of Trust, and continued pursuant to this
Trust Agreement.



     “Trust Agreement” means this Amended and Restated Trust Agreement, as the same may be
modified, amended or supplemented from time to time in accordance with the applicable provisions
hereof, including the Schedule and Exhibits attached hereto (other than Exhibit D).



     “Trust Indenture Act” means the Trust Indenture Act of 1939 or any successor statute
thereto, in each case as amended from time to time.



     “Trustees” has the meaning specified in the preamble of this Trust Agreement.



     “Trust Property” means (a) the Notes, (b) any cash on deposit in, or owing to, the
Payment 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 Property Trustee pursuant to the
trusts of this Trust Agreement.



     “Trust Security” means any one of the Common Securities or the Preferred Securities.



11









 





ARTICLE II




THE TRUST




     Section 2.1. Name.



     The trust continued hereby shall be known as “New Century Capital Trust I”, as such name may
be modified from time to time by the Administrative Trustees following written notice to the
Holders of Trust Securities and the other Trustees, in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other instruments on behalf of the Trust and
sue and be sued.



     Section 2.2. Office of the Delaware Trustee; Office of the Trust.



     The address of the Delaware Trustee in the State of Delaware is 919 North Market Street, Suite
700, Wilmington, Delaware 19801, Attention: Corporate Trust Department—New Century Capital Trust I,
or such other address in the State of Delaware as the Delaware Trustee may designate by written
notice to the Holders, the Depositor, the Property Trustee and the Administrative Trustees. The
principal office of the Trust is 18400 Von Karman, Suite 1000, Irvine, California 92612,
Attention: General Counsel, as such address may be changed from time to time by the Administrative
Trustees following written notice to the Holders and the other Trustees.



     Section 2.3. Initial Contribution of Trust Property; Fees, Costs and Expenses.



     The Property Trustee acknowledges receipt from the Depositor in connection with the Original
Trust Agreement of the sum of ten dollars ($10), which constituted the initial Trust Property. The
Depositor shall pay all fees, costs and expenses of the Trust (except with respect to the Trust
Securities) as they arise or shall, upon request of any Trustee, promptly reimburse such Trustee
for any such fees, costs and expenses paid by such Trustee. The Depositor shall make no claim upon
the Trust Property for the payment of such fees, costs or expenses.



     Section 2.4. Purposes of Trust.



     (a) The exclusive purposes and functions of the Trust are to (i) issue and sell Trust
Securities and use the proceeds from such sale to acquire the Notes, (ii) make distributions as
provided herein, (iii) enter into and perform its obligations under agreements, documents and
instructions (including, without limitation, the Operative Documents to which it is a party)
necessary to accomplish (i) and (ii), and (iv) engage in only those activities necessary or
incidental thereto. The Delaware Trustee, the Property Trustee and the Administrative Trustees are
trustees of the Trust, and have all the rights, powers and duties to the extent set forth herein.
The Trustees hereby acknowledge that they are trustees of the Trust.



     (b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on
behalf of the Trust) shall not undertake any business, activities or transaction except as
expressly provided herein or contemplated hereby. In particular, the Trust (or the Trustees acting
on behalf of the Trust) shall not (i) acquire any investments or engage in any activities not
authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge,
set-off



12









 







or otherwise dispose of any of the Trust Property or interests therein, including to Holders,
except as expressly provided herein, (iii) incur any indebtedness for borrowed money or issue any
other debt, (iv) take or consent to any action that would result in the placement of a Lien on any
of the Trust Property, (v) take or consent to any action that would reasonably be expected to cause
(or in the case of the Property Trustee, to the actual knowledge of a Responsible Officer would
cause) the Trust to become taxable as a corporation or classified as other than a grantor trust for
United States federal income tax purposes, (vi) take or consent to any action that would cause (or
in the case of the Property Trustee, to the actual knowledge of a Responsible Officer would cause)
the Notes to be treated as other than indebtedness of the Depositor for United States federal
income tax purposes or (vii) take or consent to any action that would cause the Trust to be deemed
to be an “investment company” required to be registered under the Investment Company Act.



     Section 2.5. Authorization to Enter into Certain Transactions.



     (a) The Trustees shall conduct the affairs of the Trust in accordance with and subject to the
terms of this Trust Agreement. In accordance with the following provisions (i) and (ii), the
Trustees shall have the authority to enter into all transactions and agreements determined by the
Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to
the Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including
the following:




     (i) As among the Trustees, each Administrative Trustee shall severally have the power,
authority and authorization to act on behalf of the Trust with respect to the following
matters:




     (A) the issuance and sale of the Trust Securities;




     (B) to cause the Trust to enter into, and to execute, deliver and perform on
behalf of the Trust, such agreements, documents, instruments, certificates and other
writings as may be necessary or desirable in connection with the purposes and
function of the Trust, including, without limitation, the Common Securities
Subscription Agreement and the Junior Subordinated Note Purchase Agreement and to
cause the Trust to perform its obligations under the Purchase Agreement executed by
the Depositor on behalf of the Trust;




     (C) assisting in the sale or transfer of the Preferred Securities in one or
more transactions exempt from registration under the Securities Act, and in
compliance with this Trust Agreement and applicable state securities or blue sky
laws;




     (D) assisting in the sending of notices (other than notices of default) and
other information regarding the Trust Securities and the Notes to the Holders in
accordance with this Trust Agreement;




     (E) the appointment of a Paying Agent, Securities Registrar and Calculation
Agent in accordance with this Trust Agreement;



13









 






     (F) execution and delivery of the Trust Securities on behalf of the Trust in
accordance with this Trust Agreement;




     (G) execution and delivery of closing certificates, if any, pursuant to the
Purchase Agreement and application for a taxpayer identification number for the
Trust;




     (H) preparation and filing of all applicable tax returns and tax information
reports that are required to be filed on behalf of the Trust;




     (I) establishing a record date with respect to all actions to be taken
hereunder that require a record date to be established, except as provided in
Section 6.10(a);




     (J) unless otherwise required by the Delaware Statutory Trust Act, to execute
on behalf of the Trust (either acting alone or together with the other
Administrative Trustees) any documents and other writings that such Administrative
Trustee has the power to execute pursuant to this Trust Agreement; and




     (K) the taking of any action incidental to the foregoing as such Administrative
Trustee may from time to time determine is necessary or advisable to give effect to
the terms of this Trust Agreement.




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




     (A) the receipt and holding of legal title of the Notes;




     (B) the establishment of the Payment Account;




     (C) the receipt of interest, principal and any other payments made in respect
of the Notes and the holding of such amounts in the Payment Account;




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




     (E) the exercise of all of the rights, powers and privileges of a holder of the
Notes in accordance with the terms of this Trust Agreement;




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




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



14









 






     (H) to the extent provided in this Trust Agreement, the winding up of the
affairs of and liquidation of the Trust, provided that the Administrative Trustees
shall have the power, duty and authority to act on behalf of the Trust with respect
to the preparation, execution and filing of the certificate of cancellation of the
Trust with the Secretary of State of the State of Delaware;




     (I) authentication of the Preferred Securities as provided in this Trust
Agreement; and




     (J) the taking of any action incidental to the foregoing as the Property
Trustee may from time to time determine is necessary or advisable to give effect to
the terms of this Trust Agreement 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).



     (b) In connection with the issue and sale of the Preferred Securities, the Depositor 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 Depositor in furtherance of the following prior
to the date of this Trust Agreement are hereby ratified and confirmed in all respects):




     (i) the negotiation of the terms of, and the execution and delivery of, the Purchase
Agreement providing for the sale of the Preferred Securities in one or more transactions
exempt from registration under the Securities Act, and in compliance with this Trust
Agreement and applicable state securities or blue sky laws; and




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



     (c) Notwithstanding anything herein to the contrary, the Administrative Trustees are
authorized and directed to conduct the affairs of the Trust and authorized to operate the Trust so
that the Trust will not be taxable as a corporation or classified as other than a grantor trust for
United States federal income tax purposes, so that the Notes will be treated as indebtedness of the
Depositor for United States federal income tax purposes and so that the Trust will not be deemed to
be an “investment company” required to be registered under the Investment Company Act. In respect
thereof, each Administrative Trustee is authorized to take any action, not inconsistent with
applicable law, the Certificate of Trust or this Trust Agreement, that such Administrative Trustee
determines in his or her discretion to be necessary or desirable for such purposes, as long as such
action does not adversely affect in any material respect the interests of the Holders of the
Outstanding Preferred Securities. In no event shall the Administrative Trustees be liable to the
Trust or the Holders for any failure to comply with this Section 2.5 to the extent that
such failure results solely from a change in law or regulation or in the interpretation thereof.



     (d) Any action taken by a Trustee in accordance with his, her or its powers shall constitute
the act of and serve to bind the Trust. In dealing with any Trustee acting on behalf of the Trust,
no Person shall be required to inquire into the authority of such Trustee to bind the Trust.
Persons dealing with the Trust are entitled to rely conclusively on the power and authority of any
Trustee as set forth in this Trust Agreement.



15









 





     Section 2.6. Assets of Trust.



     The assets of the Trust shall consist of the Trust Property.



     Section 2.7. Title to Trust Property.



     (a) Legal title to all Trust Property shall be vested at all times in the Property Trustee and
shall be held and administered by the Property Trustee in trust for the benefit of the Trust and
the Holders in accordance with this Trust Agreement.



     (b) The Holders shall not have any right or title to the Trust Property other than the
undivided beneficial interest in the assets of the Trust conferred by their Trust 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 Trust Securities shall be personal property giving only
the rights specifically set forth therein and in this Trust Agreement.



ARTICLE III




PAYMENT ACCOUNT; PAYING AGENTS




     Section 3.1. Payment Account.



     (a) On or prior to the Closing Date, the Property Trustee shall establish the Payment Account.
The Property Trustee and the Paying Agent shall have exclusive control and sole right of withdrawal
with respect to the Payment Account for the purpose of making deposits in and withdrawals from the
Payment Account in accordance with this Trust Agreement. All monies and other property deposited or
held from time to time in the Payment Account shall be held by the Property Trustee in the Payment
Account for the exclusive benefit of the Holders and for Distribution as herein provided.



     (b) The Property Trustee shall deposit in the Payment Account, promptly upon receipt, all
payments of principal of, premium, if any, or interest on, and any other payments with respect to,
the Notes. Amounts held in the Payment Account shall not be invested by the Property Trustee
pending distribution thereof.



     Section 3.2. Appointment of Paying Agents.



     The Property Trustee is hereby appointed as the initial Paying Agent and the Property Trustee
hereby accepts such appointment. The Paying Agent shall make Distributions to Holders from the
Payment Account and shall report the amounts of such Distributions to the Property Trustee and the
Administrative Trustees. Any Paying Agent shall have the revocable power to withdraw funds from the
Payment Account solely for the purpose of making the Distributions referred to above. The
Administrative Trustees may revoke such power and remove the Paying Agent in their sole discretion.
Any Person acting as Paying Agent shall be permitted to resign as Paying Agent upon thirty (30)
days’ written notice to the Administrative Trustees and the Property Trustee. If the Property
Trustee shall no longer be the Paying Agent or a successor Paying Agent shall resign or its
authority to act be revoked, the Administrative Trustees shall appoint a successor (which shall be
a bank or trust company) to act as Paying Agent. Such



16









 







successor Paying Agent appointed by the Administrative Trustees shall execute and deliver to
the Trustees an instrument in which such successor Paying Agent shall agree with the Trustees that
as Paying Agent, such successor Paying Agent will hold all sums, if any, held by it for payment to
the Holders in trust for the benefit of the Holders entitled thereto until such sums shall be paid
to such Holders. The Paying Agent shall return all unclaimed funds to the Property Trustee and upon
removal of a Paying Agent such Paying Agent shall also return all funds in its possession to the
Property Trustee. The provisions of Article VIII shall apply to the Property Trustee also
in its role as Paying Agent, for so long as the Property Trustee shall act as Paying Agent and, to
the extent applicable, to any other Paying Agent appointed hereunder. Any reference in this Trust
Agreement to the Paying Agent shall include any co-paying agent unless the context requires
otherwise.



ARTICLE IV




DISTRIBUTIONS; REDEMPTION




     Section 4.1. Distributions.



     (a) The Trust Securities represent undivided beneficial interests in the Trust Property, and
Distributions (including any Additional Interest Amounts) will be made on the Trust Securities at
the rate and on the dates that payments of interest (including any Additional Interest) are made on
the Notes. Accordingly:




     (i) Distributions on the Trust Securities shall be cumulative, and shall accumulate
whether or not there are funds of the Trust available for the payment of Distributions.
Distributions shall accumulate from and including September 13, 2006, and, except as
provided in clause (ii) below, shall be payable quarterly in arrears to but excluding and on
March 30, June 30, September 30 and December 30 of each year, commencing on September 30,
2006. If any date on which a Distribution is otherwise payable on the Trust Securities is
not a Business Day, then the payment of such Distribution shall be made on the next
succeeding Business Day (and no interest shall accrue in respect of the amounts whose
payment is so delayed for the period from and after each such date until the next succeeding
Business Day), except that, if such Business Day falls in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business Day, in each case, with the
same force and effect as if made on such date (each date on which Distributions are payable
in accordance with this Section 4.1(a)(i), a “Distribution Date”);




     (ii) Distributions shall accumulate in respect of the Trust Securities at a fixed rate
equal to 8.65% per annum of the Liquidation Amount to but excluding the interest payment
date in September 2011 and thereafter at a variable rate equal to LIBOR plus 3.50% per annum
of the Liquidation Amount of the Trust Securities, such rate being the rate of interest
payable on the Notes. LIBOR shall be determined by the Calculation Agent in accordance with
Schedule A attached hereto. During the Fixed Rate Period, the amount of
Distributions payable for any Distribution period shall be computed on the basis of a three
hundred sixty (360)-day year of twelve (12) thirty (30)-day months and the amount payable
for any partial period shall be computed on the basis of the actual



17









 







number of days elapsed in a three hundred sixty (360)-day year of twelve (12) thirty
(30)-day months. Upon expiration of the Fixed Rate Period, the amount of Distributions
payable for any Distribution period shall be computed on the basis of a three hundred sixty
(360)-day year and the actual number of days elapsed in the relevant Distribution period.
The amount of Distributions payable for any period shall include any Additional Interest
Amounts in respect of such period; and




     (iii) Distributions on the Trust Securities shall be made by the Paying Agent from the
Payment Account and shall be payable on each Distribution Date only to the extent that the
Trust has funds then on hand and legally available in the Payment Account for the payment of
such Distributions.



     (b) Distributions on the Trust Securities with respect to a Distribution Date shall be payable
to the Holders thereof as they appear on the Securities Register for the Trust Securities at the
close of business on the relevant record date, which shall be at the close of business on the
fifteenth (15th) day (whether or not a Business Day) preceding the relevant Distribution Date,
except that Distributions and any Additional Interest Amounts payable on the stated maturity (or
any date of principal repayment upon early maturity) of the principal of a Trust Security or on a
Redemption Date shall be paid to the Person to whom principal is paid. Distributions payable on any
Trust Securities that are not punctually paid on any Distribution Date as a result of the Depositor
having failed to make an interest payment under the Notes will cease to be payable to the Person in
whose name such Trust Securities are registered on the relevant record date, and such defaulted
Distributions and any Additional Interest Amounts will instead be payable to the Person in whose
name such Trust Securities are registered on the special record date, or other specified date for
determining Holders entitled to such defaulted Distribution and Additional Interest Amount,
established in the same manner, and on the same date, as such is established with respect to the
Notes under the Indenture.



     (c) As a condition to the payment of any principal of or interest on the Trust Securities
without the imposition of withholding tax, the Administrative Trustees shall require the previous
delivery of properly completed and signed applicable U.S. federal income tax certifications
(generally, an Internal Revenue Service Form W-9 (or applicable successor form) in the case of a
person that is a “United States person” within the meaning of Section 7701(a)(30) of the Code or an
Internal Revenue Service Form W-8 (or applicable successor form) in the case of a person that is
not a “United States person” within the meaning of Section 7701(a)(30) of the Code) and any other
certification acceptable to it to enable the Property Trustee or any Paying Agent to determine
their respective duties and liabilities with respect to any taxes or other charges that they may be
required to pay, deduct or withhold in respect of such Trust Securities.



     Section 4.2. Redemption.



     (a) On each Note Redemption Date and on the stated maturity (or any date of principal
repayment upon early maturity) of the Notes and on each other date on (or in respect of) which any
principal on the Notes is repaid, the Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price.



18









 





     (b) Notice of redemption shall be given by the Property Trustee by first-class mail, postage
prepaid, mailed not less than thirty (30) nor more than sixty (60) days prior to the Redemption
Date to each Holder of Trust Securities to be redeemed, at such Holder’s address appearing in the
Securities Register. All notices of redemption shall state:




     (i) the Redemption Date;




     (ii) the Redemption Price or, if the Redemption Price cannot be calculated prior to the
time the notice is required to be sent, the estimate of the Redemption Price provided
pursuant to the Indenture, as calculated by the Depositor, together with a statement that it
is an estimate and that the actual Redemption Price will be calculated by the Calculation
Agent on the fifth (5th) Business Day prior to the Redemption Date (and if an estimate is
provided, a further notice shall be sent of the actual Redemption Price on the date that
such Redemption Price is calculated);




     (iii) if less than all the Outstanding Trust Securities are to be redeemed, the
identification and Liquidation Amounts of the particular Trust Securities to be redeemed;




     (iv) that on the Redemption Date, the Redemption Price will become due and payable upon
each such Trust Security, or portion thereof, to be redeemed and that Distributions thereon
will cease to accumulate on such Trust Security or such portion, as the case may be, on and
after said date, except as provided in Section 4.2(d);




     (v) the place or places where the Trust Securities are to be surrendered for the
payment of the Redemption Price; and




     (vi) such other provisions as the Property Trustee deems relevant.



     (c) The Trust Securities (or portion thereof) redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous redemption or payment
at maturity of Notes. Redemptions of the Trust Securities (or portion thereof) shall be made and
the Redemption Price shall be payable on each Redemption Date only to the extent that the Trust has
funds then on hand and legally available in the Payment Account for the payment of such Redemption
Price. Under the Indenture, the Notes may be redeemed by the Depositor on any Interest Payment
Date, at the Depositor’s option, on or after September 30, 2011, in whole at any time or in part
from time to time, at the Optional Note Redemption Price. The Notes may also be redeemed by the
Depositor, at its option pursuant to the terms of the Indenture, in whole but not in part, upon the
occurrence and during the continuation of an Investment Company Event or a Tax Event, at the
Special Note Redemption Price. In addition, the Notes must be redeemed pursuant to the terms of
the Indenture in whole at the Mandatory Note Redemption Price, upon receipt of a Change of Control
Election.



     (d) If the Property Trustee gives a notice of redemption in respect of any Preferred
Securities, then by 10:00 A.M., New York City time, on the Redemption Date, the Depositor shall
deposit sufficient funds with the Property Trustee to pay the Redemption Price. If such deposit has
been made by such time, then by 12:00 noon, New York City time, on the Redemption Date, the
Property Trustee will, with respect to Book-Entry Preferred Securities, irrevocably deposit with
the Depositary for such Book-Entry Preferred Securities, to the extent



19









 







legally available therefor, funds sufficient to pay the applicable Redemption Price and will
give such Depositary irrevocable instructions and authority to pay the Redemption Price to the
Holders of the Preferred Securities. With respect to Preferred Securities that are not Book-Entry
Preferred Securities, the Property Trustee will irrevocably deposit with the Paying Agent, to the
extent available therefor, funds sufficient to pay the applicable Redemption Price and will give
the Paying Agent irrevocable instructions and authority to pay the Redemption Price to the Holders
of the Preferred Securities upon surrender of their Preferred Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the Redemption Date for any
Trust Securities (or portion thereof) called for redemption shall be payable to the Holders of such
Trust Securities as they appear on the Securities Register on the relevant record dates for the
related Distribution Dates. If notice of redemption shall have been given and funds deposited as
required, then upon the date of such deposit, all rights of Holders holding Trust Securities (or
portion thereof) so called for redemption will cease, except the right of such Holders to receive
the Redemption Price and any Distribution payable in respect of the Trust Securities on or prior to
the Redemption Date, but without interest, and, in the case of a partial redemption, the right of
such Holders to receive a new Trust Security or Securities of authorized denominations, in
aggregate Liquidation Amount equal to the unredeemed portion of such Trust Security or Securities,
and such Trust Securities (or portion thereof) called for redemption will cease to be Outstanding.
In the event that any date on which any Redemption Price is payable is not a Business Day, then
payment of the Redemption Price payable on such date will be made on the next succeeding Business
Day (and no interest shall accrue in respect of the amounts whose payment is so delayed for the
period from and after each such date until the next succeeding Business Day), except that, if such
Business Day falls in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case, with the same force and effect as if made on such
date. In the event that payment of the Redemption Price in respect of any Trust Securities (or
portion thereof) called for redemption is improperly withheld or refused and not paid either by the
Trust or by the Depositor pursuant to the Indenture, Distributions on such Trust Securities (or
portion thereof) will continue to accumulate, as set forth in Section 4.1, from the
Redemption Date originally established by the Trust for such Trust Securities (or portion thereof)
to the date such Redemption Price is actually paid, in which case the actual payment date will be
the date fixed for redemption for purposes of calculating the Redemption Price.



     (e) Subject to Section 4.3(a), if less than all the Outstanding Trust Securities are
to be redeemed on a Redemption Date, then the aggregate Liquidation Amount of Trust Securities to
be redeemed shall be allocated pro rata to the Common Securities and the Preferred Securities based
upon the relative aggregate Liquidation Amounts of the Common Securities and the Preferred
Securities. The Preferred Securities to be redeemed shall be selected on a pro rata basis based
upon their respective Liquidation Amounts not more than sixty (60) days prior to the Redemption
Date by the Property Trustee from the Outstanding Preferred Securities not previously called for
redemption; provided, that with respect to Holders that would be required to hold less than
one hundred (100) but more than zero (0) Trust Securities as a result of such redemption, the Trust
shall redeem Trust Securities of each such Holder so that after such redemption such Holder shall
hold either one hundred (100) Trust Securities or such Holder no longer holds any Trust Securities,
and shall use such method (including, without limitation, by lot) as the Trust shall deem fair and
appropriate; and provided, further, that so long as the Preferred Securities are
Book-Entry Preferred Securities, such selection shall be made in



20









 







accordance with the Applicable Depositary Procedures for the Preferred Securities held by such
Depositary. The Property Trustee shall promptly notify the Securities Registrar in writing of the
Preferred Securities (or portion thereof) selected for redemption and, in the case of any Preferred
Securities selected for partial redemption, the Liquidation Amount thereof to be redeemed. For all
purposes of this Trust Agreement, unless the context otherwise requires, all provisions relating to
the redemption of Preferred Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the aggregate Liquidation Amount of
Preferred Securities that has been or is to be redeemed.



     (f) The Trust in issuing the Trust Securities may use “CUSIP” numbers (if then generally in
use), and, if so, the Property Trustee shall indicate the “CUSIP” numbers of the Trust Securities
in notices of redemption and related materials as a convenience to Holders; provided, that
any such notice may state that no representation is made as to the correctness of such numbers
either as printed on the Trust Securities or as contained in any notice of redemption and related
materials.



     Section 4.3. Subordination of Common Securities.



     (a) Payment of Distributions (including any Additional Interest Amounts) on, the Redemption
Price of and the Liquidation Distribution in respect of, the Trust Securities, as applicable, shall
be made, pro rata among the Common Securities and the Preferred Securities based on the Liquidation
Amount of the respective Trust Securities; provided, that if on any Distribution Date,
Redemption Date or Liquidation Date an Event of Default shall have occurred and be continuing, no
payment of any Distribution (including any Additional Interest Amounts) on, Redemption Price of or
Liquidation Distribution in respect of, any Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common Securities, shall be made unless payment in
full in cash of all accumulated and unpaid Distributions (including any Additional Interest
Amounts) on all Outstanding Preferred Securities for all Distribution periods terminating on or
prior thereto, or in the case of payment of the Redemption Price the full amount of such Redemption
Price on all Outstanding Preferred Securities then called for redemption, or in the case of payment
of the Liquidation Distribution the full amount of such Liquidation Distribution on all Outstanding
Preferred Securities, shall have been made or provided for, and all funds legally and immediately
available to the Property Trustee shall first be applied to the payment in full in cash of all
Distributions (including any Additional Interest Amounts) on, or the Redemption Price of or the
Liquidation Distribution in respect of, the Preferred Securities then due and payable.



     (b) In the case of the occurrence of any Event of Default, the Holders of the Common
Securities shall have no right to act with respect to any such Event of Default under this Trust
Agreement until all such Events of Default with respect to the Preferred Securities have been
cured, waived or otherwise eliminated. Until all such Events of Default under this Trust Agreement
with respect to the Preferred Securities have been so cured, waived or otherwise eliminated, the
Property Trustee shall act solely on behalf of the Holders of the Preferred Securities and not on
behalf of the Holders of the Common Securities, and only the Holders of all the Preferred
Securities will have the right to direct the Property Trustee to act on their behalf.



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     Section 4.4. Payment Procedures.



     Payments of Distributions (including any Additional Interest Amounts), the Redemption Price,
Liquidation Amount or any other amounts in respect of the Preferred Securities shall be made by
wire transfer at such place and to such account at a banking institution in the United States as
may be designated in writing at least ten (10) Business Days prior to the date for payment by the
Person entitled thereto unless proper written transfer instructions have not been received by the
relevant record date, in which case such payments shall be made by check mailed to the address of
such Person as such address shall appear in the Securities Register. If any Preferred Securities
are held by a Depositary, such Distributions thereon shall be made to the Depositary in legally and
immediately available funds. Payments in respect of the Common Securities shall be made in such
manner as shall be mutually agreed between the Property Trustee and the Holder of all the Common
Securities.



     Section 4.5. Withholding Tax.



     The Trust and the Property Trustee shall comply with all withholding and backup withholding
tax requirements under United States federal, state and local law. The Property Trustee on behalf
of the Trust shall request, and the Holders shall provide to the Trust, such forms or certificates
as are necessary to establish an exemption from withholding and backup withholding tax with respect
to each Holder and any representations and forms as shall reasonably be requested by the Property
Trustee on behalf of the Trust to assist it in determining the extent of, and in fulfilling, its
withholding and backup withholding tax obligations. The Property Trustee shall file required forms
with applicable jurisdictions and, unless an exemption from withholding and backup withholding tax
is properly established by a Holder, shall remit amounts withheld with respect to the Holder to
applicable jurisdictions. To the extent that the Trust is required to withhold and pay over any
amounts to any jurisdiction 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 Property Trustee on behalf of the Trust may reduce subsequent Distributions
by the amount of such required withholding.



     Section 4.6. Tax Returns and Other Reports.



     The Administrative Trustees shall prepare (or cause to be prepared) at the principal office of
the Trust in the United States, as defined for purposes of Treasury regulations section 301.7701-7,
at the Depositor’s expense, and file, all United States federal, state and local tax and
information returns and reports required to be filed by or in respect of the Trust. The
Administrative Trustees shall prepare at the principal office of the Trust in the United States, as
defined for purposes of Treasury regulations section 301.7701-7, and furnish (or cause to be
prepared and furnished), by January 31 in each taxable year of the Trust to each Holder all
Internal Revenue Service forms and returns required to be provided by the Trust. The Administrative
Trustees shall provide the Depositor, Kodiak Capital Management Company LLC and the Property
Trustee with a copy of all such returns and reports promptly after such filing or furnishing.



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     Section 4.7. Payment of Taxes, Duties, Etc. of the Trust.



     Upon receipt under the Notes of Additional Tax Sums and upon the written direction of the
Administrative Trustees, the Property Trustee shall promptly pay, solely out of monies on deposit
pursuant to this Trust Agreement, any Additional Taxes imposed on the Trust by the United States or
any other taxing authority.



     Section 4.8. Payments under Indenture or Pursuant to Direct Actions.



     Any amount payable hereunder to any Holder of Preferred Securities shall be reduced by the
amount of any corresponding payment such Holder (or any Owner with respect thereto) has directly
received pursuant to Section 5.8 of the Indenture or Section 6.10(b) of this Trust
Agreement.



     Section 4.9. Exchanges.



     (a) If at any time the Depositor or any of its Affiliates (in either case, a “Depositor
Affiliate”) is the Owner or Holder of any Preferred Securities, such Depositor Affiliate shall
have the right to deliver to the Property Trustee all or such portion of its Preferred Securities
as it elects and, subject to compliance with Sections 2.2 and 3.5 of the Indenture, receive, in
exchange therefor, a Like Amount of Notes. Such election shall be exercisable effective on any
Distribution Date by such Depositor Affiliate delivering to the Property Trustee (i) at least ten
(10) Business Days prior to the Distribution Date on which such exchange is to occur, the
registration instructions and the documentation, if any, required pursuant to Sections 2.2 and 3.5
of the Indenture to enable the Indenture Trustee to issue the requested Like Amount of Notes, (ii)
a written notice of such election specifying the Liquidation Amount of Preferred Securities with
respect to which such election is being made and the Distribution Date on which such exchange shall
occur, which Distribution Date shall be not less than ten (10) Business Days after the date of
receipt by the Property Trustee of such election notice and (iii) shall be conditioned upon such
Depositor Affiliate having delivered or caused to be delivered to the Property Trustee or its
designee the Preferred Securities that are the subject of such election by 10:00 A.M. New York City
time, on the Distribution Date on which such exchange is to occur. After the exchange, such
Preferred Securities will be canceled and will no longer be deemed to be Outstanding and all rights
of the Depositor Affiliate with respect to such Preferred Securities will cease.



     (b) In the case of an exchange described in Section 4.9(a), the Property Trustee on
behalf of the Trust will, on the date of such exchange, exchange Notes having a principal amount
equal to a proportional amount of the aggregate Liquidation Amount of the Outstanding Common
Securities, based on the ratio of the aggregate Liquidation Amount of the Preferred Securities
exchanged pursuant to Section 4.9(a) divided by the aggregate Liquidation Amount of the
Preferred Securities Outstanding immediately prior to such exchange, for such proportional amount
of Common Securities held by the Depositor (which contemporaneously shall be canceled and no longer
be deemed to be Outstanding); provided, that the Depositor delivers or causes to be
delivered to the Property Trustee or its designee the required amount of Common Securities to be
exchanged by 10:00 A.M. New York City time, on the Distribution Date on which such exchange is to
occur.



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     Section 4.10. Calculation Agent.



     (a) The Property Trustee shall initially, and, subject to the immediately following sentence,
for so long as it holds any of the Notes, be the Calculation Agent for purposes of determining
LIBOR for each Distribution Date. The Calculation Agent may be removed by the Administrative
Trustees at any time. If the Calculation Agent is unable or unwilling to act as such or is removed
by the Administrative Trustees, the Administrative Trustees will promptly appoint as a replacement
Calculation Agent the London office of a leading bank which is engaged in transactions in three (3)
month Eurodollar deposits in the international Eurodollar market and which does not control or is
not controlled by or under common control with the Administrative Trustee or its Affiliates. The
Calculation Agent may not resign its duties without a successor having been duly appointed.



     (b) The Calculation Agent shall be required to agree, and the Property Trustee as the initial
Calculation Agent hereby agrees, that, as soon as possible after 11:00 A.M. (London time) on each
LIBOR Determination Date, but in no event later than 11:00 A.M. (London time) on the Business Day
immediately following each LIBOR Determination Date, the Calculation Agent will calculate the
interest rate and dollar amount (rounded to the nearest cent, with half a cent being rounded
upwards) for the related Distribution Date, and will communicate such rate and amount to the
Depositor, the Administrative Trustees, the Note Trustee, the Property Trustee (if the Property
Trustee is not the Calculation Agent), each Paying Agent and the Depositary. The Calculation Agent
will also specify to the Administrative Trustees the quotations upon which the foregoing rates and
amounts are based and, in any event, the Calculation Agent shall notify the Administrative Trustees
before 5:00 P.M. (London time) on each LIBOR Determination Date that either: (i) it has determined
or is in the process of determining the foregoing rates and amounts or (ii) it has not determined
and is not in the process of determining the foregoing rates and amounts, together with its reasons
therefor. The Calculation Agent’s determination of the foregoing rates and amounts for any
Distribution Date will (in the absence of manifest error) be final and binding upon all parties.
For the sole purpose of calculating the interest rate for the Trust Securities, “Business
Day” shall be defined as any day on which dealings in deposits in Dollars are transacted in the
London interbank market.



     Section 4.11. Certain Accounting Matters.



     (a) At all times during the existence of the Trust, the Administrative Trustees 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 on the accrual method of accounting, in accordance with U.S. generally
accepted accounting principles, consistently applied.



     (b) The Administrative Trustees shall either (i) if the Depositor is then subject to such
reporting requirements, cause each Form 10-K and Form 10-Q prepared by the Depositor and filed with
the Commission in accordance with the Exchange Act to be delivered to each Holder, with a copy to
the Property Trustee, within thirty (30) days after the filing thereof or (ii) cause to be prepared
at the principal office of the Trust in the United States, as defined for purposes of Treasury
Regulations section 301.7701-7, and delivered to each of the Holders, with a copy to



24









 







the Property Trustee within ninety (90) days after the end of each Fiscal Year, annual
financial statements of the Trust, including a balance sheet of the Trust as of the end of such
Fiscal Year, and the related statements of income or loss.



     (c) If the Depositor does not intend to file its annual and quarterly information with the
Commission in electronic form pursuant to Regulation S-T of the Commission using the Commission’s
Electronic Data Gathering, Analysis and Retrieval (“EDGAR”) system, the Administrative
Trustees shall notify the Property Trustee in the manner prescribed herein of each such annual and
quarterly filing. The Property Trustee is hereby authorized and directed to access the EDGAR system
for purposes of retrieving the financial information so filed. Compliance with the foregoing shall
constitute delivery by the Administrative Trustees of the Depositor’s financial statements to the
Property Trustee in compliance with the provisions of Section 314(a) of the Trust Indenture Act,
if applicable. The Property Trustee shall have no duty to search for or obtain any electronic or
other filings that the Depositor makes with the Commission, regardless of whether such filings are
periodic, supplemental or otherwise. Delivery of reports, information and documents to the Property
Trustee pursuant to this Section 4.11(c) shall be solely for purposes of compliance with
this Section 4.11 and, if applicable, with Section 314(a) of the Trust Indenture Act. The
Property Trustee’s receipt of such reports, information and documents shall not constitute notice
to it of the content thereof or any matter determinable from the content thereof, including the
Depositor’s compliance with any of its covenants hereunder, as to which the Property Trustee is
entitled to rely upon Officers’ Certificates.



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



ARTICLE V




SECURITIES




     Section 5.1. Initial Ownership.



     Upon the creation of the Trust and the contribution by the Depositor referred to in
Section 2.3 and until the issuance of the Trust Securities, and at any time during which no
Trust Securities are Outstanding, the Depositor shall be the sole beneficial owner of the Trust.



     Section 5.2. Authorized Trust Securities.



     The Trust shall be authorized to issue one series of Preferred Securities having an aggregate
Liquidation Amount of Fifty Million Dollars ($50,000,000) and one series of Common Securities
having an aggregate Liquidation Amount of One Million Five Hundred Forty-Five Thousand Dollars
($1,545,000).



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     Section 5.3. Issuance of the Common Securities; Subscription and Purchase of Notes.



     On the Closing Date, an Administrative Trustee, on behalf of the Trust, shall execute and
deliver to the Depositor Common Securities Certificates, registered in the name of the Depositor,
evidencing an aggregate of 1,545 Common Securities having an aggregate Liquidation Amount of One
Million Five Hundred Forty-Five Thousand Dollars ($1,545,000), against receipt by the Trust of the
aggregate purchase price of such Common Securities of One Million Five Hundred Forty-Five Thousand
Dollars ($1,545,000). Contemporaneously therewith and with the sale by the Trust to the Holders of
an aggregate of 50,000 Preferred Securities having an aggregate Liquidation Amount of Fifty Million
Dollars ($50,000,000), an Administrative Trustee, on behalf of the Trust, shall purchase from the
Depositor Notes, to be registered in the name of the Property Trustee on behalf of the Trust and
having an aggregate principal amount equal to Fifty-One Million Five Hundred Forty-Five Thousand
Dollars ($51,545,000), and, in satisfaction of the purchase price for such Notes, the Property
Trustee, on behalf of the Trust, shall deliver to the Depositor the sum of Fifty-One Million Five
Hundred Forty-Five Thousand Dollars ($51,545,000) (being the sum of the aggregate amount paid by
the Holders for the Preferred Securities and the amount paid by the Depositor for the Common
Securities).



     Section 5.4. The Securities Certificates.



     (a) The Preferred Securities Certificates shall be issued in minimum denominations of $100,000
Liquidation Amount and integral multiples of $1,000 in excess thereof, and the Common Securities
Certificates shall be issued in minimum denominations of $10,000 Liquidation Amount and integral
multiples of $1,000 in excess thereof. The Securities Certificates shall be executed on behalf of
the Trust by manual or facsimile signature of at least one Administrative Trustee. Securities
Certificates bearing the signatures of individuals who were, at the time when such signatures shall
have been affixed, authorized to sign such Securities Certificates on behalf of the Trust shall be
validly issued and entitled to the benefits of this Trust Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the delivery of such
Securities Certificates or did not have such authority at the date of delivery of such Securities
Certificates.



     (b) On the Closing Date, upon the written order of an authorized officer of the Depositor, the
Administrative Trustees shall cause Securities Certificates to be executed on behalf of the Trust
and delivered, without further corporate action by the Depositor, in authorized denominations.



     (c) The Preferred Securities issued to QIB/QPs shall be, except as provided in Section
5.6, Book-Entry Preferred Securities issued in the form of one or more Global Preferred
Securities registered in the name of the Depositary, or its nominee and deposited with the
Depositary or the Property Trustee as 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 Preferred Securities issued to a Person other than a QIB/QP shall be issued in
the form of Definitive Preferred Securities Certificates.



     (d) A Preferred Security shall not be valid until authenticated by the manual signature of an
authorized signatory of the Property Trustee. Such signature shall be conclusive evidence



26









 







that the Preferred Security has been authenticated under this Trust Agreement. Upon written
order of the Trust signed by at least one (1) Administrative Trustee, the Property Trustee shall
authenticate and deliver one or more Preferred Security Certificates evidencing the Preferred
Securities for original issue. The Property Trustee may appoint an authenticating agent that is a
U.S. Person acceptable to the Trust to authenticate the Preferred Securities. A Common Security
need not be so authenticated and shall be valid upon execution by one or more Administrative
Trustees. The form of the certificate of authentication is specified in Section 5.13.



     (e) Upon issuance of the Trust Securities as provided in this Trust Agreement, the Trust
Securities so issued shall be deemed to be validly issued, fully paid and nonassesable, and each
Holder thereof shall be entitled to the benefits provided by this Trust Agreement.



     Section 5.5. Rights of Holders.



     The Trust Securities shall have no, and the issuance of the Trust Securities is not subject
to, preemptive or similar rights under this Trust Agreement and when issued and delivered to
Holders against payment of the purchase price therefor will be fully paid and non-assessable by the
Trust. Except as provided in Section 5.11(b), the Holders of the Trust Securities, in their
capacities as such, 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 5.6. Book-Entry Preferred Securities.



     (a) A Global Preferred Security may be exchanged, in whole or in part, for Definitive
Preferred Securities Certificates registered in the names of the Owners only if such exchange
complies with Section 5.7 and (i) the Depositary advises the Administrative Trustees and
the Property Trustee in writing that the Depositary is no longer willing or able properly to
discharge its responsibilities with respect to the Global Preferred Security, and no qualified
successor is appointed by the Administrative Trustees 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 Administrative Trustees fail to appoint a qualified successor within ninety (90) days of
obtaining knowledge of such event, (iii) the Administrative Trustees at their option advise the
Property Trustee in writing that the Trust elects to terminate the book-entry system through the
Depositary or (iv) a Note Event of Default has occurred and is continuing. Upon the occurrence of
any event specified in clause (i), (ii), (iii) or (iv) above in this Section 5.6(a), the
Administrative Trustees shall notify the Depositary and instruct the Depositary to notify all
Owners of Book-Entry Preferred Securities, the Delaware Trustee and the Property Trustee of the
occurrence of such event and of the availability of the Definitive Preferred Securities
Certificates to Owners of the Preferred Securities requesting the same. Upon the issuance of
Definitive Preferred Securities Certificates, the Trustees shall recognize the Holders of the
Definitive Preferred Securities Certificates as Holders. Notwithstanding the foregoing, if an Owner
of a beneficial interest in a Global Preferred Security wishes at any time to transfer an interest
in such Global Preferred Security to a Person other than a QIB/QP, such transfer shall be effected,
subject to the Applicable Depositary Procedures, in accordance with the provisions of this
Section 5.6 and Section 5.7, and the transferee shall receive a Definitive
Preferred Securities Certificate in connection with such transfer. A holder of a Definitive
Preferred Securities Certificate that is a



27









 







QIB/QP may, upon request and in accordance with the provisions of this Section 5.6 and
Section 5.7, exchange such Definitive Preferred Securities Certificate for a beneficial
interest in a Global Preferred Security.



     (b) If any Global Preferred Security is to be exchanged for Definitive Preferred Securities
Certificates or canceled in part, or if any Definitive Preferred Securities Certificate is to be
exchanged in whole or in part for any Global Preferred Security, then either (i) such Global
Preferred Security shall be so surrendered for exchange or cancellation as provided in this
Article V or (ii) the aggregate Liquidation Amount represented by such Global Preferred
Security shall be reduced, subject to Section 5.4, or increased by an amount equal to the
Liquidation Amount represented by that portion of the Global Preferred Security to be so exchanged
or canceled, or equal to the Liquidation Amount represented by such Definitive Preferred Securities
Certificates to be so exchanged for any Global Preferred Security, as the case may be, by means of
an appropriate adjustment made on the records of the Securities Registrar, whereupon the Property
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 Administrative Trustees or the Securities Registrar of any Global Preferred
Security or Securities by the Depositary, accompanied by registration instructions, the
Administrative Trustees, or any one of them, shall execute the Definitive Preferred Securities
Certificates in accordance with the instructions of the Depositary and, the Property Trustee, upon
receipt thereof and of a written order of the Trust executed by one Administrative Trustee, shall
authenticate and deliver such Definitive Preferred Securities Certificates. None of the Securities
Registrar or the Trustees 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 Preferred Securities Certificate executed and delivered upon registration
or transfer of, or in exchange for or in lieu of, a Global Preferred Security or any portion
thereof shall be executed and delivered in the form of, and shall be, a Global Preferred Security,
unless such Definitive Preferred Securities Certificate is registered in the name of a Person other
than the Depositary for such Global Preferred Security or a nominee thereof.



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



     (e) The rights of the Owners of the Book-Entry Preferred 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



28









 







and/or the Depositary Participants; provided, that solely for the purpose of
determining whether the Holders of the requisite amount of Preferred Securities have voted on any
matter provided for in this Trust Agreement, to the extent that Preferred Securities are
represented by a Global Preferred Security, the Trustees may conclusively rely on, and shall be
fully protected in relying on, any written instrument (including a proxy) delivered to the Property
Trustee by the Depositary or a Depositary Participant 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
Preferred Securities are represented by a Global Preferred Security, the initial Depositary will
make book-entry transfers among the Depositary Participants and receive and transmit payments on
the Preferred Securities that are represented by a Global Preferred Security to such Depositary
Participants, and none of the Depositor or the Trustees 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
Trust Agreement, for so long as Preferred Securities are represented by a Global Preferred
Security, the Trustees shall give all such notices and communications to the Depositary, and shall
have no obligations to the Owners.



     Section 5.7. Registration of Transfer and Exchange of Preferred Securities
Certificates.



     (a) The Property Trustee shall keep or cause to be kept, at the Corporate Trust Office, a
register or registers (the “Securities Register”) in which the registrar and transfer agent
with respect to the Trust Securities (the “Securities Registrar”), subject to such
reasonable regulations as it may prescribe, shall provide for the registration of Preferred
Securities Certificates and Common Securities Certificates and registration of transfers and
exchanges of Preferred Securities Certificates as herein provided. The Person acting as the
Property Trustee shall at all times also be the Securities Registrar. The provisions of Article
VIII shall apply to the Property Trustee in its role as Securities Registrar.



     (b) Subject to Section 5.7(d), upon surrender for registration of transfer of any
Preferred Securities Certificate at the office or agency maintained pursuant to Section
5.7(f), the Administrative Trustees or any one of them shall execute by manual or facsimile
signature and deliver to the Property Trustee, and upon receipt thereof and of a written order
executed by at least one (1) Administrative Trustee the Property Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more new Preferred
Securities Certificates in authorized denominations of a like aggregate Liquidation Amount as may
be required by this Trust Agreement dated the date of execution by such Administrative Trustee or
Trustees. At the option of a Holder, Preferred Securities Certificates may be exchanged for other
Preferred Securities Certificates in authorized denominations and of a like aggregate Liquidation
Amount upon surrender of the Preferred Securities Certificate to be exchanged at the office or
agency maintained pursuant to Section 5.7(f). Whenever any Preferred Securities
Certificates are so surrendered for exchange, the Administrative Trustees or any one of them shall
execute by manual or facsimile signature and deliver to the Property Trustee, and upon receipt
thereof and of a written order executed by at least one (1) Administrative Trustee the Property
Trustee shall authenticate and deliver, the Preferred Securities Certificates that the Holder
making the exchange is entitled to receive.



29









 





     (c) The Securities Registrar shall not be required (i) to issue, register the transfer of or
exchange any Preferred Security during a period beginning at the opening of business fifteen (15)
days before the day of selection for redemption of such Preferred Securities pursuant to
Article IV and ending at the close of business on the day of mailing of the notice of
redemption or (ii) to register the transfer of or exchange any Preferred Security so selected for
redemption in whole or in part, except, in the case of any such Preferred Security to be redeemed
in part, any portion thereof not to be redeemed.



     (d) Every Preferred Securities Certificate presented or surrendered for registration of
transfer or exchange shall be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Securities Registrar duly executed by the Holder or such Holder’s
attorney duly authorized in writing and accompanied by a certificate of the transferee
substantially in the form set forth as Exhibit E attached hereto.



     (e) No service charge shall be made for any registration of transfer or exchange of Preferred
Securities Certificates, but the Property Trustee on behalf of the Trust may require payment of a
sum sufficient to cover any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Preferred Securities Certificates.



     (f) The Administrative Trustees shall designate an office or offices or agency or agencies
where Preferred Securities Certificates may be surrendered for registration of transfer or exchange
and initially designate the Corporate Trust Office of the Property Trustee as the office and agency
for such purposes. The Administrative Trustees shall give prompt written notice to the Depositor,
the Property Trustee and to the Holders of any change in the location of any such office or agency.



     (g) The Preferred Securities may only be transferred to a “Qualified Purchaser” as such term
is defined in Section 2(a)(51) of the Investment Company Act.



     (h) None of the Administrative Trustees, the Property Trustee nor the Securities Registrar
shall be responsible for ascertaining whether any transfer hereunder complies with the registration
provisions of or any exemptions from the Securities Act, applicable state securities laws or the
applicable laws of any other jurisdiction, ERISA, the Code or the Investment Company Act;
provided, that if a certificate of the transferee is specifically required by the express
terms of this Section 5.7 to be delivered to the Property Trustee or the Securities
Registrar by a Holder or transferee of a Preferred Security, the Property Trustee and the
Securities Registrar shall be under a duty to receive and examine the same to determine whether
such certificate substantially conforms on its face to the requirements of this Trust Agreement and
shall promptly notify the party delivering the same if such certificate does not comply with such
terms.



     Section 5.8. Mutilated, Destroyed, Lost or Stolen Securities Certificates.



     (a) If any mutilated Securities Certificate shall be surrendered to the Securities Registrar
together with such security or indemnity as may be required by the Securities Registrar and the
Administrative Trustees to save each of the Trustees harmless, then, the Administrative Trustees,
or any one of them, on behalf of the Trust, shall execute and make available for



30









 







delivery and, with respect to Preferred Securities, the Property Trustee upon written order of
the Trust executed by at least one (1) Administrative Trustee shall authenticate, in exchange
therefor a new Securities Certificate of like class, tenor and denomination.



     (b) If the Securities Registrar shall receive evidence to its satisfaction of the destruction,
loss or theft of any Securities Certificate and there shall have been delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be required by them to
save each of the Trustees harmless, then in the absence of notice that such Securities Certificate
shall have been acquired by a bona fide purchaser, the Administrative Trustees, or any one of them,
on behalf of the Trust, shall execute and make available for delivery, and, with respect to
Preferred Securities, the Property Trustee upon written order of the Trust executed by at least one
(1) Administrative Trustee shall authenticate, in exchange for or in lieu of any such destroyed,
lost or stolen Securities Certificate, a new Securities Certificate of like class, tenor and
denomination.



     (c) In connection with the issuance of any new Securities Certificate under this Section
5.8, the Administrative Trustees or the Securities Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in connection
therewith.



     (d) Any duplicate Securities Certificate issued pursuant to this Section 5.8 shall
constitute conclusive evidence of an undivided beneficial interest in the assets of the Trust
corresponding to that evidenced by the mutilated, lost, stolen or destroyed Securities Certificate,
as if originally issued, whether or not the lost, stolen or destroyed Securities Certificate shall
be found at any time.



     (e) If any such mutilated, destroyed, lost or stolen Securities Certificate has become or is
about to become due and payable, the Depositor in its discretion may provide the Property Trustee
or the Paying Agent, as applicable, with the funds to pay such Trust Security and upon receipt of
such funds, the Property Trustee or the Paying Agent, as applicable, shall pay such Trust Security
instead of issuing a new Securities Certificate.



     (f) The provisions of this Section 5.8 are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement of mutilated, destroyed, lost
or stolen Securities Certificates.



     Section 5.9. Persons Deemed Holders.



     The Trustees and the Securities Registrar shall each treat the Person in whose name any
Securities Certificate shall be registered in the Securities Register as the Holder of the Trust
Securities represented by such Securities Certificate for the purpose of receiving Distributions
and for all other purposes whatsoever, and none of the Trustees and the Securities Registrar shall
be bound by any notice to the contrary.



     Section 5.10. Cancellation.



     All Preferred Securities Certificates surrendered for registration of transfer or exchange or
for payment shall, if surrendered to any Person other than the Property Trustee, be delivered to



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the Property Trustee, and any such Preferred Securities Certificates and Preferred Securities
Certificates surrendered directly to the Property Trustee for any such purpose shall be promptly
canceled by the Property Trustee. The Administrative Trustees may at any time deliver to the
Property Trustee for cancellation any Preferred Securities Certificates previously delivered
hereunder that the Administrative Trustees may have acquired in any manner whatsoever, and all
Preferred Securities Certificates so delivered shall be promptly canceled by the Property Trustee.
No Preferred Securities Certificates shall be executed and delivered in lieu of or in exchange for
any Preferred Securities Certificates canceled as provided in this Section 5.10, except as
expressly permitted by this Trust Agreement. All cancelled Preferred Securities Certificates shall
be retained by the Property Trustee in accordance with its customary practices, and, if any
cancelled Preferred Securities Certificates are disposed of in accordance with its customary
practices, the Property Trustee shall within five (5) Business Days of such disposition deliver
written notice to the Administrative Trustees indicating the Preferred Securities Certificates that
were disposed of and describing the process used to dispose of such certificates.



     Section 5.11. Ownership of Common Securities by Depositor.



     (a) On the Closing Date, the Depositor shall acquire, and thereafter shall retain, beneficial
and record ownership of the Common Securities. Neither the Depositor nor any successor Holder of
the Common Securities may transfer less than all of the Common Securities, and the Depositor or any
such successor Holder may transfer the Common Securities only (i) in connection with a
consolidation or merger of the Depositor into another Person, or any conveyance, transfer or lease
by the Depositor of its properties and assets substantially as an entirety to any Person (in which
event such Common Securities will be transferred to such surviving entity, transferee or lessee, as
the case may be), pursuant to Section 8.1 of the Indenture or (ii) to the Depositor or an Affiliate
of the Depositor, in each such case in compliance with applicable law (including the Securities Act
and applicable state securities and blue sky laws). To the fullest extent permitted by law, any
attempted transfer of the Common Securities other than as set forth in the immediately preceding
sentence shall be void. The Administrative Trustees shall cause each Common Securities Certificate
issued to the Depositor to contain a legend stating substantially “THIS CERTIFICATE IS NOT
TRANSFERABLE EXCEPT IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE TRUST AGREEMENT.”



     (b) Any Holder of the Common Securities shall be liable for the debts and obligations of the
Trust in the manner and to the extent set forth with respect to the Depositor and agrees that it
shall be subject to all liabilities to which the Depositor may be subject and, prior to becoming
such a Holder, shall deliver to the Administrative Trustees an instrument of assumption
satisfactory to such Trustees.



     Section 5.12. Restrictive Legends.



     (a) Each Preferred Security Certificate shall bear a legend in substantially the following
form:




“[IF THIS SECURITY IS A GLOBAL SECURITY INSERT: THIS PREFERRED SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE



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TRUST AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY
TRUST COMPANY (“DTC”) OR A NOMINEE OF DTC. THIS PREFERRED SECURITY IS EXCHANGEABLE
FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT, AND NO TRANSFER OF THIS PREFERRED
SECURITY (OTHER THAN A TRANSFER OF THIS PREFERRED 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 PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO NEW
CENTURY CAPITAL TRUST I OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY PREFERRED 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.]




THE PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND SUCH PREFERRED SECURITIES OR ANY INTEREST THEREIN, MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF ANY PREFERRED SECURITIES IS HEREBY NOTIFIED THAT THE
SELLER OF THE PREFERRED SECURITIES MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A UNDER THE SECURITIES ACT.




THE HOLDER OF THE PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE AGREES FOR THE
BENEFIT OF THE TRUST AND THE DEPOSITOR THAT (A) SUCH PREFERRED SECURITIES MAY BE OFFERED,
RESOLD OR OTHERWISE TRANSFERRED ONLY (I) TO THE TRUST, (II) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS (a) A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) AND (b) A “QUALIFIED PURCHASER” (AS DEFINED IN SECTION 2(a)(51) OF THE
INVESTMENT COMPANY ACT OF 1940, AS AMENDED), OR (III) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A “QUALIFIED PURCHASER” (AS DEFINED IN SECTION 2(a)(51) OF THE INVESTMENT
COMPANY ACT OF 1940, AS AMENDED) TO A “QUALIFIED PURCHASER” (AS DEFINED IN SECTION 2(a)(51)
OF THE



33









 







INVESTMENT COMPANY ACT OF 1940, AS AMENDED), AND (B) THE HOLDER WILL NOTIFY ANY PURCHASER OF
ANY PREFERRED SECURITIES FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.




THE PREFERRED SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING AN
AGGREGATE LIQUIDATION AMOUNT OF NOT LESS THAN $100,000. TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY ATTEMPTED TRANSFER OF PREFERRED SECURITIES, OR ANY INTEREST THEREIN, IN A BLOCK
HAVING AN AGGREGATE LIQUIDATION AMOUNT OF LESS THAN $100,000 AND MULTIPLES OF $1,000 IN
EXCESS THEREOF SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER
OF SUCH PREFERRED SECURITIES FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
THE LIQUIDATION AMOUNT OF OR DISTRIBUTIONS ON SUCH PREFERRED SECURITIES, OR ANY INTEREST
THEREIN, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN
SUCH PREFERRED SECURITIES.




THE PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE PROVISIONS OF AN
AMENDED AND RESTATED TRUST AGREEMENT OF NEW CENTURY CAPITAL TRUST I DATED SEPTEMBER 13, 2006
(A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE DEPOSITOR) AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE
WITH THE PROVISIONS OF SUCH TRUST AGREEMENT. THE HOLDER OF THIS PREFERRED SECURITY, OR ANY
INTEREST THEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF ALSO AGREES, REPRESENTS AND WARRANTS
THAT IT IS NOT AN EMPLOYEE BENEFIT PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR
ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE “CODE”), OR SIMILAR LAW (EACH A “PLAN”), OR AN ENTITY WHOSE UNDERLYING
ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT IN THE ENTITY, AND NO PERSON
INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR HOLD THIS PREFERRED SECURITY OR ANY
INTEREST THEREIN. ANY PURCHASER OR HOLDER OF THE PREFERRED SECURITIES OR ANY INTEREST
THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT 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.”



34









 





     (b) The above legend shall not be removed from any of the Preferred Securities Certificates
unless there is delivered to the Property Trustee and the Depositor satisfactory evidence, which
may include an opinion of counsel, as may be reasonably required to ensure that any future
transfers thereof may be made without restriction under or violation of the provisions of the
Securities Act and other applicable law. Upon provision of such satisfactory evidence, one or more
of the Administrative Trustees on behalf of the Trust shall execute and deliver to the Property
Trustee, and the Property Trustee shall authenticate and deliver, at the written direction of the
Administrative Trustees and the Depositor, Preferred Securities Certificates that do not bear the
legend.



     Section 5.13. Form of Certificate of Authentication.



     The Property Trustee’s certificate of authentication shall be in substantially the following
form:




     This is one of the Preferred Securities referred to in the within-mentioned Trust
Agreement.



	 	 	 	 	 
	Dated: 	WELLS FARGO BANK, N.A., not in its individual

capacity, but solely as Property Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



ARTICLE VI




MEETINGS; VOTING; ACTS OF HOLDERS





     Section 6.1. Notice of Meetings.



     Notice of all meetings of the Holders of the Preferred Securities, stating the time, place and
purpose of the meeting, shall be given by the Administrative Trustee pursuant to Section
10.8 to each Holder of Preferred Securities, at such Holder’s registered address, at least
fifteen (15) days and not more than ninety (90) days before the meeting. At any such meeting, any
business properly before the meeting may be so considered whether or not stated in the notice of
the meeting. Any adjourned meeting may be held as adjourned without further notice.



     Section 6.2. Meetings of Holders of the Preferred Securities.



     (a) No annual meeting of Holders is required to be held. The Administrative Trustee, however,
shall call a meeting of the Holders of the Preferred Securities to vote on any matter upon the
written request of the Holders of at least twenty-five percent (25%) in aggregate Liquidation
Amount of the Outstanding Preferred Securities and the Administrative Trustees or the Property
Trustee may, at any time in their discretion, call a meeting of the Holders of the Preferred
Securities to vote on any matters as to which such Holders are entitled to vote.



35









 





     (b) The Holders of at least a Majority in Liquidation Amount of the Preferred Securities,
present in person or by proxy, shall constitute a quorum at any meeting of the Holders of the
Preferred Securities.



     (c) If a quorum is present at a meeting, an affirmative vote by the Holders present, in person
or by proxy, holding Preferred Securities representing at least a Majority in Liquidation Amount of
the Preferred Securities held by the Holders present, either in person or by proxy, at such meeting
shall constitute the action of the Holders of the Preferred Securities, unless this Trust Agreement
requires a lesser or greater number of affirmative votes.



     Section 6.3. Voting Rights.



     Holders shall be entitled to one vote for each $10,000 of Liquidation Amount represented by
their Outstanding Trust Securities in respect of any matter as to which such Holders are entitled
to vote.



     Section 6.4. Proxies, Etc.



     At any meeting of Holders, any Holder entitled to vote thereat may vote by proxy;
provided, that no proxy shall be voted at any meeting unless it shall have been placed on
file with the Administrative Trustees, or with such other officer or agent of the Trust as the
Administrative Trustees may direct, for verification prior to the time at which such vote shall be
taken. Pursuant to a resolution of the Property Trustee, proxies may be solicited in the name of
the Property Trustee or one or more officers of the Property Trustee. Only Holders of record shall
be entitled to vote. When Trust Securities are held jointly by several Persons, any one of them may
vote at any meeting in person or by proxy in respect of such Trust Securities, but if more than one
of them shall be present at such meeting in person or by proxy, and such joint owners or their
proxies so present disagree as to any vote to be cast, such vote shall not be received in respect
of such Trust Securities. A proxy purporting to be executed by or on behalf of a Holder shall be
deemed valid unless challenged at or prior to its exercise, and the burden of proving invalidity
shall rest on the challenger. No proxy shall be valid more than three (3) years after its date of
execution.



     Section 6.5. Holder Action by Written Consent.



     Any action that may be taken by Holders at a meeting may be taken without a meeting and
without prior notice if Holders holding at least a Majority in Liquidation Amount of all Preferred
Securities entitled to vote in respect of such action (or such lesser or greater proportion thereof
as shall be required by any other provision of this Trust Agreement) shall consent to the action in
writing; provided, that notice of such action is promptly provided to the Holders of
Preferred Securities that did not consent to such action. Any action that may be taken by the
Holders of all the Common Securities may be taken without a meeting and without prior notice if
such Holders shall consent to the action in writing.



     Section 6.6. Record Date for Voting and Other Purposes.



     Except as provided in Section 6.10(a), for the purposes of determining the Holders who
are entitled to notice of and to vote at any meeting or to act by written consent, or to
participate



36









 







in any distribution on the Trust Securities in respect of which a record date is not otherwise
provided for in this Trust Agreement, or for the purpose of any other action, the Administrative
Trustees may from time to time fix a date, not more than ninety (90) days prior to the date of any
meeting of Holders or the payment of a Distribution or other action, as the case may be, as a
record date for the determination of the identity of the Holders of record for such purposes.



     Section 6.7. Acts of Holders.



     (a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Trust Agreement to be given, made or taken by Holders may be embodied
in and evidenced by one or more instruments of substantially similar tenor signed by such Holders
in person or by an agent thereof duly appointed in writing; and, except as otherwise expressly
provided herein, such action shall become effective when such instrument or instruments are
delivered to an Administrative Trustee. A Depositary that is a Holder of a Global Preferred
Security may provide its proxy or proxies to the beneficial owners of interests in any such Global
Preferred Security though such Depositary’s standing instructions and customary practices. Such
instrument or instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the “Act” of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Trust Agreement and conclusive in favor of the Trustees, if made
in the manner provided in this Section 6.7.



     (b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than such signer’s individual capacity, such certificate
or affidavit shall also constitute sufficient proof of such signer’s authority. The fact and date
of the execution of any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner that any Trustee receiving the same deems sufficient.



     (c) The ownership of Trust Securities shall be proved by the Securities Register.



     (d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Trust Security shall bind every future Holder of the same Trust Security and the
Holder of every Trust Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustees, the Administrative Trustees or the Trust in reliance thereon, whether or not notation of
such action is made upon such Trust Security.



     (e) Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder
with regard to any particular Trust Security may do so with regard to all or any part of the
Liquidation Amount of such Trust Security or by one or more duly appointed agents each of which may
do so pursuant to such appointment with regard to all or any part of such Liquidation Amount.



37









 





     (f) If any dispute shall arise among the Holders or the Trustees with respect to the
authenticity, validity or binding nature of any request, demand, authorization, direction, notice,
consent, waiver or other Act of such Holder or Trustee under this Article VI, then the
determination of such matter by the Property Trustee shall be conclusive with respect to such
matter.



     Section 6.8. Inspection of Records.



     Upon reasonable written notice to the Administrative Trustees and the Property Trustee, the
records of the Trust shall be open to inspection by any Holder during normal business hours for any
purpose reasonably related to such Holder’s interest as a Holder.



     Section 6.9. Limitations on Voting Rights.



     (a) Except as expressly provided in this Trust Agreement and in the Indenture and as otherwise
required by law, no Holder of Preferred Securities shall have any right to vote or in any manner
otherwise control the administration, operation and management of the Trust or the obligations of
the parties hereto, nor shall anything herein set forth, or contained in the terms of the
Securities Certificates, be construed so as to constitute the Holders from time to time as partners
or members of an association.



     (b) So long as any Notes are held by the Property Trustee on behalf of the Trust, the Property
Trustee shall not (i) direct the time, method and place of conducting any proceeding for any remedy
available to the Note Trustee, or exercise any trust or power conferred on the Property Trustee
with respect to the Notes, (ii) waive any past default that may be waived under Section 5.13 of the
Indenture or waive compliance with any covenant or condition under Section 10.7 of the Indenture,
(iii) exercise any right to rescind or annul a declaration that the principal of all the Notes
shall be due and payable or (iv) consent to any amendment, modification or termination of the
Indenture or the Notes, where such consent shall be required, without, in each case, obtaining the
prior approval of the Holders of at least a Majority in Liquidation Amount of the Preferred
Securities; provided, that where a consent under the Indenture would require the consent of
each holder of Notes (or each Holder of Preferred Securities) affected thereby, no such consent
shall be given by the Property Trustee without the prior written consent of each Holder of
Preferred Securities. The Property Trustee shall not revoke any action previously authorized or
approved by a vote of the Holders of the Preferred Securities, except by a subsequent vote of the
Holders of the Preferred Securities. In addition to obtaining the foregoing approvals of the
Holders of the Preferred Securities, prior to taking any of the foregoing actions, the Property
Trustee shall, at the expense of the Depositor, obtain an Opinion of Counsel experienced in such
matters to the effect that such action shall not cause the Trust to be taxable as a corporation or
classified as other than a grantor trust for United States federal income tax purposes.



     (c) If any proposed amendment to the Trust Agreement provides for, or the Trustees otherwise
propose to effect, (i) any action that would adversely affect in any material respect the powers,
preferences or special rights of the Preferred Securities, whether by way of amendment to this
Trust Agreement or otherwise or (ii) the dissolution, winding-up or termination of the Trust, other
than pursuant to the terms of this Trust Agreement, then the Holders of Outstanding



38









 







Preferred Securities as a 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 Preferred Securities. Notwithstanding any other
provision of this Trust Agreement, no amendment to this Trust Agreement may be made if, as a result
of such amendment, it would cause the Trust to be taxable as a corporation or classified as other
than a grantor trust for United States federal income tax purposes.



     Section 6.10. Acceleration of Maturity; Rescission of Annulment; Waivers of Past
Defaults.



     (a) For so long as any Preferred Securities remain Outstanding, if, upon a Note Event of
Default, the Note Trustee fails or the holders of not less than twenty-five percent (25%) in
principal amount of the outstanding Notes fail to declare the principal of all of the Notes to be
immediately due and payable, the Holders of at least twenty-five percent (25%) in Liquidation
Amount of the Preferred Securities then Outstanding shall have the right to make such declaration
by a notice in writing to the Property Trustee, the Depositor and the Note Trustee. At any time
after a declaration of acceleration with respect to the Notes has been made and before a judgment
or decree for payment of the money due has been obtained by the Note Trustee as provided in the
Indenture, the Holders of at least a Majority in Liquidation Amount of the Preferred Securities, by
written notice to the Property Trustee, the Depositor and the Note Trustee, may rescind and annul
such declaration and its consequences if:




     (i) the Depositor has paid or deposited with the Note Trustee a sum sufficient to pay:




     (A) all overdue installments of interest on all of the Notes;




     (B) any accrued Additional Interest on all of the Notes;




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




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




     (ii) all Note Events of Default, other than the non-payment of the principal of the
Notes that has become due solely by such acceleration, have been cured or waived as provided
in Section 5.13 of the Indenture.



     Upon receipt by the Property Trustee of written notice requesting such an acceleration, or
rescission and annulment thereof, by Holders of any part of the Preferred Securities, a record date
shall be established for determining Holders of Outstanding Preferred Securities entitled to join
in such notice, which record date shall be at the close of business on the day the Property Trustee
receives such notice. The Holders of Preferred Securities 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



39









 







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 ninety (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 expiration of such ninety (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
immediately preceding sentence, in which event a new record date shall be established pursuant to
the provisions of this Section 6.10(a).



     (b) For so long as any Preferred Securities remain Outstanding, to the fullest extent
permitted by law and subject to the terms of this Trust Agreement and the Indenture, upon a Note
Event of Default specified in paragraph (a) or (b) of Section 5.1 of the Indenture, any Holder of
Preferred Securities shall have the right to institute a proceeding directly against the Depositor,
pursuant to Section 5.8 of the Indenture, for enforcement of payment to such Holder of any amounts
payable in respect of Notes having an aggregate principal amount equal to the aggregate Liquidation
Amount of the Preferred Securities of such Holder. Except as set forth in Section 6.10(a)
and this Section 6.10(b), the Holders of Preferred Securities shall have no right to
exercise directly any right or remedy available to the holders of, or in respect of, the Notes.



     (c) Notwithstanding paragraphs (a) and (b) of this Section 6.10, the Holders of at
least a Majority in Liquidation Amount of the Preferred Securities may, on behalf of the Holders of
all the Preferred Securities, waive any Note Event of Default, except any Note Event of Default
arising from the failure to pay any principal of, premium, if any, or interest on (including any
Additional Interest) the Notes (unless such Note Event of Default has been cured and a sum
sufficient to pay all matured installments of interest and all principal and premium, if any, on
all Notes due otherwise than by acceleration has been deposited with the Note Trustee) or a Note
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 Note. Upon any such waiver, such
Note Event of Default shall cease to exist and any Note Event of Default arising therefrom shall be
deemed to have been cured for every purpose of the Indenture; but no such waiver shall affect any
subsequent Note Event of Default or impair any right consequent thereon.



     (d) Notwithstanding paragraphs (a) and (b) of this Section 6.10, the Holders of at
least a Majority in Liquidation Amount of the Preferred Securities may, on behalf of the Holders of
all the Preferred Securities, waive any past Event of Default and its consequences, except any
Event of Default which is attributable to a Note Event of Default which may not be waived pursuant
to paragraph (c) of this Section 6.10. Upon such waiver, any such Event of Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Trust Agreement, but no such waiver shall extend to any subsequent or other
Event of Default or impair any right consequent thereon.



     (e) The Holders of a Majority in Liquidation Amount of the Preferred Securities shall have the
right to direct the time, method and place of conducting any proceeding for any remedy available to
the Property Trustee in respect of this Trust Agreement or the Notes or exercising any trust or
power conferred upon the Property Trustee under this Trust Agreement; provided,



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that, subject to Sections 8.5 and 8.7, the Property Trustee shall have the
right to decline to follow any such direction if the Property Trustee being advised by counsel
determines that the action so directed may not lawfully be taken, or if the Property Trustee in
good faith shall, by an officer or officers of the Property Trustee, determine that the proceedings
so directed would be illegal or involve it in personal liability or be unduly prejudicial to the
rights of Holders not party to such direction; and provided, further, that nothing
in this Trust Agreement shall impair the right of the Property Trustee to take any action deemed
proper by the Property Trustee and which is not inconsistent with such direction.



ARTICLE VII




REPRESENTATIONS AND WARRANTIES




     Section 7.1. Representations and Warranties of the Property Trustee and the Delaware
Trustee.



     The Property Trustee and the Delaware Trustee, each severally on behalf of and as to itself,
hereby represents and warrants for the benefit of the Depositor and the Holders that:




     (a) the Property Trustee is a national banking association with trust powers, duly
organized, validly existing and in good standing under the laws of the United States of
America;




     (b) the Property Trustee has full corporate power, authority and legal right to
execute, deliver and perform its obligations under this Trust Agreement and has taken all
necessary action to authorize the execution, delivery and performance by it of this Trust
Agreement;




     (c) the Delaware Trustee is a Delaware corporation, duly organized with trust powers,
validly existing and in good standing under the laws of the State of Delaware and with its
principal place of business in the State of Delaware;




     (d) the Delaware Trustee has full corporate power, authority and legal right to
execute, deliver and perform its obligations under this Trust Agreement and has taken all
necessary action to authorize the execution, delivery and performance by it of this Trust
Agreement;




     (e) this Trust Agreement has been duly authorized, executed and delivered by the
Property Trustee and the Delaware Trustee and constitutes the legal, valid and binding
agreement of each of the Property Trustee and the Delaware Trustee enforceable against each
of them in accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws affecting creditors’ rights
generally and to general principles of equity and the discretion of the court (regardless of
whether considered in a proceeding in equity or at law);




     (f) the execution, delivery and performance of this Trust Agreement have been duly
authorized by all necessary corporate or other action on the part of the Property Trustee
and the Delaware Trustee and do not require any approval of stockholders of the



41









 







Property Trustee and the Delaware Trustee and such execution, delivery and performance
will not (i) violate the Articles of Association, Charter or By-laws of the Property Trustee
or the Delaware Trustee, (ii) violate any provision of, or constitute, with or without
notice or lapse of time, a default under, or result in the imposition of any lien on any
properties included in the Trust Property pursuant to the provisions of any indenture,
mortgage, credit agreement, license or other agreement or instrument to which the Property
Trustee or the Delaware Trustee is a party or by which it or any of its properties or assets
is bound, or (iii) violate any applicable law, governmental rule or regulation of the United
States or the State of Delaware, as the case may be, governing the banking, trust or general
powers of the Property Trustee or the Delaware Trustee or any order, judgment or decree
applicable to the Property Trustee or the Delaware Trustee;




     (g) neither the authorization, execution or delivery by the Property Trustee or the
Delaware Trustee of this Trust Agreement nor the consummation of any of the transactions by
the Property Trustee or the Delaware Trustee contemplated herein requires the consent or
approval of, the giving of notice to, the registration with or the taking of any other
action with respect to any governmental authority or agency under any existing law of the
United States or the State of Delaware governing the banking, trust or general powers of the
Property Trustee or the Delaware Trustee, as the case may be; and




     (h) to the best of each of the Property Trustee’s and the Delaware Trustee’s knowledge,
there are no proceedings pending or threatened against or affecting the Property Trustee or
the Delaware Trustee in any court or before any governmental authority, agency or
arbitration board or tribunal that, individually or in the aggregate, could reasonably be
expected to materially and adversely affect the Trust or would question the right, power and
authority of the Property Trustee or the Delaware Trustee, as the case may be, to enter into
or perform its obligations as one of the Trustees under this Trust Agreement.



     Section 7.2. Representations and Warranties of Depositor.



     The Depositor hereby represents and warrants for the benefit of the Holders and the Trustees
that:




     (a) the Depositor is a corporation duly organized, validly existing as a corporation in
good standing under the laws of the State of Maryland;




     (b) the Depositor has full corporate power, authority and legal right to execute,
deliver and perform its obligations under this Trust Agreement and has taken all necessary
corporate action to authorize the execution, delivery and performance by it of this Trust
Agreement;




     (c) this Trust Agreement has been duly authorized, executed and delivered by the
Depositor and constitutes the legal, valid and binding agreement of the Depositor
enforceable against the Depositor in accordance with its terms, subject to applicable



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bankruptcy, insolvency, fraudulent conveyance, moratorium, reorganization and similar
laws affecting creditors’ rights generally and to general principles of equity;




     (d) the Securities Certificates issued at the Closing Date on behalf of the Trust have
been duly authorized by the Trust and, when authenticated in accordance with this Trust
Agreement, will have been duly and validly executed, issued and delivered by the applicable
Trustees pursuant to the terms and provisions of, and in accordance with the requirements
of, this Trust Agreement and the Holders will be, as of such date, entitled to the benefits
of this Trust Agreement;




     (e) the execution, delivery and performance of this Trust Agreement have been duly
authorized by all necessary corporate or other action on the part of the Depositor and do
not require any approval of stockholders of the Depositor and such execution, delivery and
performance will not (i) violate the articles of incorporation or by-laws (or other
organizational documents) of the Depositor or (ii) violate any applicable law, governmental
rule or regulation governing the Depositor or any material portion of its property or any
order, judgment or decree applicable to the Depositor or any material portion of its
property, except such violations as would not adversely affect the Depositor’s ability to
perform its obligations under the Operative Documents or would not reasonably be expected to
have a material adverse effect on the Depositor and its subsidiaries taken as a whole;




     (f) neither the authorization, execution or delivery by the Depositor of this Trust
Agreement nor the consummation of any of the transactions by the Depositor contemplated
herein requires the consent or approval of, the giving of notice to, the registration with
or the taking of any other action with respect to any governmental authority or agency under
any existing law governing the Depositor or any material portion of its property, except
such consents or approvals which the failure to obtain would not adversely affect the
Depositor’s ability to perform its obligations under the Operative Documents or would not
reasonably be expected to have a material adverse effect on the Depositor and its
subsidiaries taken as a whole; and




     (g) there are no proceedings pending or, to the best of the Depositor’s knowledge,
threatened against or affecting the Depositor or any material portion of its property in any
court or before any governmental authority, agency or arbitration board or tribunal that,
individually or in the aggregate, could reasonably be expected to materially and adversely
affect the Trust or would question the right, power and authority of the Depositor, as the
case may be, to enter into or perform its obligations under this Trust Agreement.



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ARTICLE VIII




THE TRUSTEES




     Section 8.1. Number of Trustees.



     The number of Trustees shall be four (4); provided, that the Property Trustee and the
Delaware Trustee may be the same Person, in which case the number of Trustees shall be three (3).
The number of Trustees may be increased or decreased by Act of the Holder of the Common Securities
subject to Sections 8.2, 8.3, and 8.4. The death, resignation, retirement,
removal, bankruptcy, incompetence or incapacity to perform the duties of a Trustee shall not
operate to annul, dissolve or terminate the Trust.



     Section 8.2. Property Trustee Required.



     There shall at all times be a Property Trustee hereunder with respect to the Trust Securities.
The Property Trustee shall be a corporation or national banking association organized and doing
business under the laws of the United States or of any state thereof, authorized to exercise
corporate trust powers, having a combined capital and surplus of at least fifty million dollars
($50,000,000), subject to supervision or examination by federal or state authority and having an
office within the United States. If any such Person publishes reports of condition at least
annually pursuant to law or to the requirements of its supervising or examining authority, then for
the purposes of this Section 8.2, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Property Trustee shall cease to be eligible in accordance with the
provisions of this Section 8.2, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article VIII.



     Section 8.3. Delaware Trustee Required.



     (a) If required by the Delaware Statutory Trust Act, there shall at all times be a Delaware
Trustee with respect to the Trust Securities. The Delaware Trustee shall either be (i) a natural
person who is at least 21 years of age and a resident of the State of Delaware or (ii) a legal
entity that has its principal place of business in the State of Delaware, otherwise meets the
requirements of applicable Delaware law and shall act through one or more persons authorized to
bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with
the provisions of this Section 8.3, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article VIII. The Delaware Trustee shall have the same
rights, privileges and immunities as the Property Trustee.



     (b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware
Trustee have any of the duties and responsibilities, of the Property Trustee or the Administrative
Trustees set forth herein. The Delaware Trustee shall be one of the trustees of the Trust for the
sole and limited purpose of fulfilling the requirements of Section 3807 of the Delaware Statutory
Trust Act and for taking such actions as are required to be taken by a Delaware trustee under the
Delaware Statutory Trust Act. The duties (including fiduciary duties), liabilities and obligations
of the Delaware Trustee shall be limited to (a) accepting legal process



44









 







served on the Trust in the State of Delaware and (b) the execution of any certificates
required to be filed with the Secretary of State of the State of Delaware that the Delaware Trustee
is required to execute under Section 3811 of the Delaware Statutory Trust Act and there shall be no
other duties (including fiduciary duties) or obligations, express or implied, at law or in equity,
of the Delaware Trustee.



     Section 8.4. Appointment of Administrative Trustees.



     (a) There shall at all times be one or more Administrative Trustees hereunder with respect to
the Trust Securities. Each Administrative Trustee shall be either a natural person who is at least
21 years of age or a legal entity that shall act through one or more persons authorized to bind
that entity. Each of the individuals identified as an “Administrative Trustee” in the preamble of
this Trust Agreement hereby accepts his or her appointment as such.



     (b) Except where a requirement for action by a specific number of Administrative Trustees is
expressly set forth in this Trust Agreement, any act required or permitted to be taken by, and any
power of the Administrative Trustees may be exercised by, or with the consent of, any one such
Administrative Trustee. Whenever a vacancy in the offices of the Administrative Trustees shall
occur, until such vacancy is filled by the appointment of an Administrative Trustee in accordance
with Section 8.11, the Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Trust Agreement), shall have all the powers granted to
the Administrative Trustees and shall discharge all the duties imposed upon the Administrative
Trustees by this Trust Agreement.



     Section 8.5. Duties and Responsibilities of the Trustees.



     (a) The rights, immunities, duties and responsibilities of the Trustees shall be as provided
by this Trust Agreement and there shall be no other duties (including fiduciary duties) or
obligations, express or implied, at law or in equity, of the Trustees; provided,
however, that if an Event of Default known to the Property Trustee has occurred and is
continuing, the Property Trustee shall, prior to the receipt of directions, if any, from the
Holders of at least a Majority in Liquidation Amount of the Preferred Securities, exercise such of
the rights and powers vested in it by this Trust Agreement, and use the same degree of care and
skill in its exercise, as a prudent person would exercise or use under the circumstances in the
conduct of such person’s own affairs. Notwithstanding the foregoing, no provision of this Trust
Agreement shall require any of the Trustees to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in the exercise of any of
its or their rights or powers, if it or they shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is not reasonably
assured to it. Whether or not herein expressly so provided, every provision of this Trust Agreement
relating to the conduct or affecting the liability of or affording protection to the Trustees shall
be subject to the provisions of this Section 8.5. To the extent that, at law or in equity,
a Trustee has duties and liabilities relating to the Trust or to the Holders, such Trustee shall
not be liable to the Trust or to any Holder for such Trustee’s good faith reliance on the
provisions of this Trust Agreement. The provisions of this Trust Agreement, to the extent that they
restrict the duties and liabilities of the Trustees otherwise existing at law or in equity, are
agreed by the Depositor and the Holders to replace such other duties and liabilities of the
Trustees.



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     (b) All payments made by the Property Trustee or a Paying Agent in respect of the Trust
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
Property Trustee or a Paying Agent to make payments in accordance with the terms hereof. Each
Holder, by its acceptance of a Trust Security, agrees that it will look solely to the revenue and
proceeds from the Trust Property to the extent legally available for distribution to it as herein
provided and that the Trustees are not personally liable to it for any amount distributable in
respect of any Trust Security or for any other liability in respect of any Trust Security. This
Section 8.5(b) does not limit the liability of the Trustees expressly set forth elsewhere
in this Trust Agreement.



     (c) No provisions of this Trust Agreement shall be construed to relieve the Property Trustee
from liability with respect to matters that are within the authority of the Property Trustee under
this Trust Agreement for its own negligent action, negligent failure to act or willful misconduct,
except that:




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




     (ii) the Property 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
at least a Majority in Liquidation Amount of the Preferred Securities relating to the time,
method and place of conducting any proceeding for any remedy available to the Property
Trustee hereunder or under the Indenture, or exercising any trust or power conferred upon
the Property Trustee under this Trust Agreement;




     (iii) the Property Trustee’s sole duty with respect to the custody, safe keeping and
physical preservation of the Notes and the Payment Account shall be to deal with such Trust
Property in a similar manner as the Property Trustee deals with similar property for its own
account, subject to the protections and limitations on liability afforded to the Property
Trustee under this Trust Agreement;




     (iv) the Property Trustee shall not be liable for any interest on any money received by
it except as it may otherwise agree in writing with the Depositor; and money held by the
Property Trustee need not be segregated from other funds held by it except in relation to
the Payment Account maintained by the Property Trustee pursuant to Section 3.1 and
except to the extent otherwise required by law; and




     (v) the Property Trustee shall not be responsible for monitoring the compliance by the
Administrative Trustees or the Depositor with their respective duties under this Trust
Agreement, nor shall the Property Trustee be liable for the default or misconduct of any
other Trustee or the Depositor.



     Section 8.6. Notices of Defaults and Extensions.



     (a) Within ninety (90) days after the occurrence of a default actually known to the Property
Trustee, the Property Trustee shall transmit notice of such default to the Holders, the



46









 







Administrative Trustees and the Depositor, unless such default shall have been cured or
waived. For the purpose of this Section 8.6, the term “default” means any event
that is, or after notice or lapse of time or both would become, an Event of Default.



     (b) The Property Trustee shall not be charged with knowledge of any Event of Default unless
either (i) a Responsible Officer of the Property Trustee shall have actual knowledge or (ii) the
Property Trustee shall have received written notice thereof from the Depositor, an Administrative
Trustee or a Holder.



     (c) The Property Trustee shall notify all Holders of the Preferred Securities of any notice of
default received with respect to the Notes.



     Section 8.7. Certain Rights of Property Trustee.



     Subject to the provisions of Section 8.5:




     (a) the Property Trustee may conclusively rely and shall be protected in acting or
refraining from acting in good faith and in accordance with the terms hereof upon any
resolution, Opinion of Counsel, Officers’ Certificate or other certificate, written
representation of a Holder or transferee, certificate of auditors or any other resolution,
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 or presented by the proper
party or parties;




     (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is
required to decide between alternative courses of action, (ii) in construing any of the
provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or
inconsistent with any other provisions contained herein or (iii) the Property Trustee is
unsure of the application of any provision of this Trust Agreement, then, except as to any
matter as to which the Holders of the Preferred Securities are entitled to vote under the
terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting the Depositor’s written instruction as to the course of action to be taken and
the Property Trustee shall take such action, or refrain from taking such action, as the
Property Trustee shall be instructed in writing to take, or to refrain from taking, by the
Depositor; provided, that if the Property Trustee does not receive such instructions
of the Depositor within ten (10) Business Days after it has delivered such notice or such
reasonably shorter period of time set forth in such notice, the Property Trustee may, but
shall be under no duty to, take such action, or refrain from taking such action, as the
Property Trustee shall deem advisable and in the best interests of the Holders, in which
event the Property Trustee shall have no liability except for its own negligence, bad faith
or willful misconduct;




     (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be
sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided
herein;



47









 






     (d) any direction or act of an Administrative Trustee contemplated by this Trust
Agreement shall be sufficiently evidenced by a certificate executed by such Administrative
Trustee and setting forth such direction or act;




     (e) the Property 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 re-recording, re-filing or re-registration
thereof;




     (f) the Property Trustee may consult with counsel (which counsel may be counsel to the
Property Trustee, the Depositor or any of its Affiliates, and may include any of its
employees) 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 Property Trustee shall have
the right at any time to seek instructions concerning the administration of this Trust
Agreement from any court of competent jurisdiction;




     (g) the Property Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Trust Agreement at the request or direction of any of the
Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the
Property Trustee reasonable security or indemnity against the costs, expenses (including
reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in
compliance with such request or direction, including reasonable advances as may be requested
by the Property Trustee; provided, however, that nothing contained in this
Section 8.7(g) shall be construed to relieve the Property Trustee, upon the
occurrence of an Event of Default (of which the Property Trustee has knowledge (as provided
in Section 8.6(b)), of its obligation to exercise the rights and powers
vested in it by this Trust Agreement; provided, further, that nothing
contained in this Section 8.7(g) shall prevent the Property Trustee from exercising
its rights under Section 8.11 hereof;




     (h) the Property 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, direction, 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 Property Trustee may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Property Trustee shall determine
to make such inquiry or investigation, it shall be entitled to examine the books, records
and premises of the Depositor, personally or by agent or attorney;




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




     (j) whenever in the administration of this Trust Agreement the Property Trustee shall
deem it desirable to receive instructions with respect to enforcing any remedy or right
hereunder, the Property Trustee (i) may request instructions from the



48









 







Holders (which instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to direct the Property
Trustee under this Trust Agreement 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 protected in acting in accordance with such
instructions;




     (k) except as otherwise expressly provided by this Trust Agreement, the Property
Trustee shall not be under any obligation to take any action that is discretionary under the
provisions of this Trust Agreement;




     (l) without prejudice to any other rights available to the Property Trustee under
applicable law, when the Property Trustee incurs expenses or renders services in connection
with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and
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) whenever in the administration of this Trust Agreement the Property Trustee shall
deem it desirable that a matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Property Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part, request and rely on
an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by
the Depositor; and




     (n) in the event the Property Trustee is also acting as Paying Agent, Authenticating
Agent (as defined in the Indenture), Securities Registrar or Calculation Agent hereunder,
the rights and protections afforded the Property Trustee pursuant to this Article
VIII shall also be afforded to such Paying Agent, Authenticating Agent, Securities
Registrar or Calculation Agent.



     No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any
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 such Person 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.



     Section 8.8. Delegation of Power.



     Any Trustee may, by power of attorney consistent with applicable law or otherwise, delegate to
any other natural person over the age of 21 its, his or her power for the purpose of executing any
documents contemplated in Section 2.5. The Trustees shall have power to delegate from time
to time to such of their number or to the Depositor the doing of such things and the execution of
such instruments either in the name of the Trust or the names of the Trustees or otherwise as the
Trustees may deem expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of this Trust Agreement.



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     Section 8.9. May Hold Securities.



     Any Trustee or any other agent of any Trustee or the Trust, in its individual or any other
capacity, may become the owner or pledgee of Trust Securities and except as provided in the
definition of the term “Outstanding” in Article I, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other agent.



     Section 8.10. Compensation; Reimbursement; Indemnity.



     The Depositor agrees:




     (a) to pay to the Trustees from time to time such reasonable compensation for all
services rendered by them hereunder as may be agreed by the Depositor and the Trustees 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);




     (b) 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 Trust
Agreement (including the reasonable compensation and the expenses and disbursements of their
agents and counsel), except any such expense, disbursement or advance as may be attributable
to their negligence, bad faith or willful misconduct; and




     (c) to the fullest extent permitted by applicable law, to indemnify and hold harmless
(i) each Trustee (including in its individual capacity), (ii) any Affiliate of any Trustee,
(iii) any officer, director, shareholder, employee, representative or agent of any Trustee
or any Affiliate of any Trustee and (iv) any employee or agent of the Trust (referred to
herein as an “Indemnified Person”) from and against any loss, damage, liability, tax
(other than income, franchise or other taxes imposed on amounts paid pursuant to Section
8.10(a) or (b) hereof), penalty, expense or claim of any kind or nature
whatsoever incurred without negligence, bad faith or willful misconduct on its part, arising
out of or in connection with the acceptance or administration of the Trust hereunder,
including the advancement of funds to cover the reasonable costs and expenses of defending
itself against any claim or liability in connection with the exercise or performance of any
of its powers or duties hereunder.



     The Trust shall have no payment, reimbursement or indemnity obligations to the Trustees under
this Section 8.10. The provisions of this Section 8.10 shall survive the
termination of this Trust Agreement and the earlier removal or resignation of any Trustee.



     No Trustee may claim any Lien on any Trust Property whether before or after termination of the
Trust as a result of any amount due pursuant to this Section 8.10.



     To the fullest extent permitted by law, in no event shall the Property Trustee and the
Delaware Trustee be liable for any indirect, special, punitive or consequential loss or damage of
any kind whatsoever, including, but not limited to, lost profits, even if the Trustee has been
advised of the likelihood of such loss or damage and regardless of the form of action.



50









 





     In no event shall the Property Trustee and the Delaware Trustee be liable for any failure or
delay in the performance of its obligations hereunder because of circumstances beyond its control,
including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism,
fire, riot, embargo, government action, including any laws, ordinances, regulations, governmental
action or the like which delay, restrict or prohibit the providing of the services contemplated by
this Trust Agreement.



     Section 8.11. Resignation and Removal; Appointment of Successor.



     (a) No resignation or removal of any Trustee and no appointment of a successor Trustee
pursuant to this Article VIII shall become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable requirements of Section 8.12.



     (b) A Trustee may resign at any time by giving written notice thereof to the Depositor and, in
the case of the Property Trustee and the Delaware Trustee, to the Holders.



     (c) Unless an Event of Default shall have occurred and be continuing, the Property Trustee or
the Delaware Trustee, or both of them, may be removed (with or without cause) at any time by Act of
the Holder of Common Securities. If an Event of Default shall have occurred and be continuing, the
Property Trustee or the Delaware Trustee, or both of them, may be removed (with or without cause)
at such time by Act of the Holders of at least a Majority in Liquidation Amount of the Preferred
Securities, delivered to the removed Trustee (in its individual capacity and on behalf of the
Trust). An Administrative Trustee may be removed (with or without cause) only by Act of the Holder
of the Common Securities at any time.



     (d) If any Trustee shall resign, be removed or become incapable of acting as Trustee, or if a
vacancy shall occur in the office of any Trustee for any reason, at a time when no Event of Default
shall have occurred and be continuing, the Holder of the Common Securities, by Act of the Holder of
the Common Securities, shall promptly appoint a successor Trustee or Trustees, and such successor
Trustee and the retiring Trustee shall comply with the applicable requirements of Section
8.12. If the Property Trustee or the Delaware Trustee shall resign, be removed or become
incapable of continuing to act as the Property Trustee or the Delaware Trustee, as the case may be,
at a time when an Event of Default shall have occurred and be continuing, the Holders of the
Preferred Securities, by Act of the Holders of a Majority in Liquidation Amount of the Preferred
Securities, shall promptly appoint a successor Property Trustee or Delaware Trustee, as applicable,
and such successor Property Trustee or Delaware Trustee and the retiring Property Trustee or
Delaware Trustee shall comply with the applicable requirements of Section 8.12. If an
Administrative Trustee shall resign, be removed or become incapable of acting as Administrative
Trustee, at a time when an Event of Default shall have occurred and be continuing, the Holder of
the Common Securities by Act of the Holder of Common Securities shall promptly appoint a successor
Administrative Trustee and such successor Administrative Trustee and the retiring Administrative
Trustee shall comply with the applicable requirements of Section 8.12. If no successor
Trustee shall have been so appointed by the Holder of the Common Securities or Holders of the
Preferred Securities, as the case may be, and accepted appointment in the manner required by
Section 8.12 within thirty (30) days after the giving of a notice of resignation by a
Trustee, the removal of a Trustee, or a Trustee becoming incapable of acting as such Trustee, any
Holder who has been a Holder of Preferred



51









 







Securities for at least six (6) months may, on behalf of himself, herself or itself and all
others similarly situated, and any resigning Trustee may, in each case, at the expense of the
Depositor, petition any court of competent jurisdiction for the appointment of a successor Trustee.



     (e) The Depositor shall give notice of each resignation and each removal of the Property
Trustee or the Delaware Trustee and each appointment of a successor Property Trustee or Delaware
Trustee to all Holders in the manner provided in Section 10.8. Each notice shall include
the name of the successor Property Trustee or Delaware Trustee and the address of its Corporate
Trust Office if it is the Property Trustee.



     (f) Notwithstanding the foregoing or any other provision of this Trust Agreement, in the event
any Administrative Trustee or a Delaware Trustee who is a natural person dies or becomes, in the
opinion of the Holder of Common Securities, incompetent or incapacitated, the vacancy created by
such death, incompetence or incapacity may be filled by (i) the act of the remaining Administrative
Trustee or (ii) otherwise by the Holder of the Common Securities (with the successor in each case
being a Person who satisfies the eligibility requirement for Administrative Trustees or Delaware
Trustee, as the case may be, set forth in Sections 8.3 and 8.4).



     (g) Upon the appointment of a successor Delaware Trustee, such successor Delaware Trustee
shall file a Certificate of Amendment to the Certificate of Trust with the Secretary of State of
the State of Delaware in accordance with Section 3810 of the Delaware Statutory Trust Act.



     Section 8.12. Acceptance of Appointment by Successor.



     (a) In case of the appointment hereunder of a successor Trustee, each successor Trustee shall
execute and deliver to the Depositor and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee shall become
effective and each such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on
request of the Trust or any successor Trustee such retiring Trustee shall, upon payment of its
charges, duly assign, transfer and deliver to such successor Trustee all Trust Property, all
proceeds thereof and money held by such retiring Trustee hereunder with respect to the Trust
Securities and the Trust.



     (b) Upon request of any such successor Trustee, the Trust (or the retiring Trustee if
requested by the Depositor) shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers, trusts and duties
referred to in the preceding paragraph.



     (c) No successor Trustee shall accept its appointment unless at the time of such acceptance
such successor Trustee shall be qualified and eligible under this Article VIII.



     Section 8.13. Merger, Conversion, Consolidation or Succession to Business.



     Any Person into which the Property Trustee or the Delaware Trustee may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,



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conversion or consolidation to which such Trustee shall be a party, or any Person succeeding
to all or substantially all the corporate trust business of such Trustee, shall be the successor of
such Trustee hereunder, without the execution or filing of any paper or any further act on the part
of any of the parties hereto; provided, that such Person shall be otherwise qualified and
eligible under this Article VIII.



     Section 8.14. Not Responsible for Recitals or Issuance of Securities.



     The recitals contained herein and in the Securities Certificates shall be taken as the
statements of the Trust and the Depositor, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representations as to the title to, or value or condition
of, the Trust Property of the Trust or any part thereof, nor as to the validity or sufficiency of
this Trust Agreement, the Notes or the Trust Securities. The Trustees shall not be accountable for
the use or application by the Depositor of the proceeds of the Notes. It is expressly understood
and agreed by the parties hereto that insofar as any document, agreement or certificate is executed
on behalf of the Trust by any Trustee (i) such document, agreement or certificate is executed and
delivered by such Trustee, not in its individual capacity but solely as Trustee under this Trust
Agreement in the exercise of the powers and authority conferred and vested in it, (ii) each of the
representations, undertakings and agreements made on the part of the Trust is made and intended not
as representations, warranties, covenants, undertakings and agreements by any Trustee in its
individual capacity but is made and intended for the purpose of binding only the Trust and (iii)
under no circumstances shall any Trustee in its individual capacity be personally liable for the
payment of any indebtedness or expenses of the Trust or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the Trust under this Trust
Agreement or any other document, agreement or certificate.



     Section 8.15. Property Trustee May File Proofs of Claim.



     (a) In case of any Bankruptcy Event (or event that with the passage of time would become a
Bankruptcy Event) relative to the Trust or any other obligor upon the Trust Securities or the Trust
Property or of such other obligor or their creditors, the Property Trustee (irrespective of whether
any Distributions on the Trust Securities shall then be due and payable and irrespective of whether
the Property Trustee shall have made any demand on the Trust for the payment of any past due
Distributions) shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:




     (i) to file and prove a claim for the whole amount of any Distributions owing and
unpaid in respect of the Trust Securities and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Property Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of the Property
Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding; and




     (ii) to collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;



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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such proceeding is hereby authorized by each Holder to make such payments to the Property
Trustee and, in the event the Property Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Property Trustee first any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its agents and counsel,
and any other amounts due the Property Trustee.




     (b) Nothing herein contained shall be deemed to authorize the Property Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or compensation affecting the Trust Securities or the rights of any Holder thereof or to
authorize the Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.



     Section 8.16. Reports to the Property Trustee and Holders.



     (a) The Depositor and the Administrative Trustees shall deliver to the Property Trustee, not
later than forty-five (45) days after the end of each of the first three (3) fiscal quarters of
each fiscal year of the Depositor and not later than ninety (90) days after the end of each fiscal
year of the Depositor ending after the date of this Trust Agreement, an officers’ certificate
(substantially in the form attached hereto as Exhibit F) covering the preceding fiscal
year, stating whether or not to the knowledge of the signers thereof the Depositor, the
Administrative Trustees and the Trust are in default in the performance or observance of any of the
terms, provisions and conditions of this Trust Agreement (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Depositor or the Trust shall be in default,
specifying all such defaults and the nature and status thereof of which they have knowledge.



     (b) The Depositor shall furnish (i) to the Property Trustee; (ii) Kodiak Capital Management
Company LLC, 2107 Wilson Boulevard, Suite 450, Arlington, Virginia 22201, Attention: Robert M.
Hurley or such other address as designated by Kodiak Warehouse LLC and (iii) any Owner of the
Preferred Securities reasonably identified to the Depositor and the Trust (which identification may
be made either by such Owner or by Kodiak Capital Management Company LLC a duly completed and
executed officer’s financial certificate substantively and substantially in the form attached
hereto as Exhibit G, including the financial statements referenced in such Exhibit, which
certificate and financial statements shall be so furnished by the Depositor not later than
forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal
year of the Depositor and not later than ninety (90) days after the end of each fiscal year of the
Depositor; provided, however, that so long as the Depositor is a publicly reporting
company, the Depositor has filed with the Commission the relevant annual or quarterly report
referenced in such certificate and such report is publicly available on the EDGAR system, then the
Depositor shall not be required to furnish such certificate and financial statements. The delivery
requirements under this Section 8.16(b) may be satisfied by compliance with Section 7.3(b)
of the Indenture.



     (c) The Property Trustee shall obtain all reports, certificates and information, which it is
entitled to obtain under each of the Operative Documents, and deliver to the Purchaser, and a



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designee of the Purchaser, as identified in writing to the Property Trustee, copies of all
such reports, certificates and information promptly upon receipt thereof.



     (d) The Depositor shall, during any period in which it is not subject to Section 13 or 15(d)
of the Exchange Act, furnish to the Holders and to prospective purchasers of Preferred Securities,
upon their request, the information required to be furnished pursuant to Rule 144A(d)(4) under the
Securities Act. The delivery requirement set forth in the preceding sentence may be satisfied by
compliance with Section 8.16(b).



ARTICLE IX




TERMINATION, LIQUIDATION AND MERGER




     Section 9.1. Dissolution Upon Expiration Date.



     Unless earlier dissolved, the Trust shall automatically dissolve on September 30, 2041 (the
“Expiration Date”), and the Trust Property shall be liquidated in accordance with
Section 9.4.



     Section 9.2. Early Termination.



     The first to occur of any of the following events is an “Early Termination Event”,
upon the occurrence of which the Trust shall be dissolved:




     (a) the occurrence of a Bankruptcy Event in respect of, or the dissolution or
liquidation of, the Depositor, in its capacity as the Holder of the Common Securities,
unless the Depositor shall have transferred the Common Securities as provided by Section
5.11, in which case this provision shall refer instead to any such successor Holder of
the Common Securities;




     (b) the written direction to the Property Trustee from the Holder of the Common
Securities at any time to dissolve the Trust and, after satisfaction of any liabilities of
the Trust as required by applicable law and in accordance with the written instructions of
the Administrative Trustees, to distribute the Notes to the Holders in exchange for the
Preferred Securities (which direction is optional and wholly within the discretion of the
Holder of the Common Securities);




     (c) the redemption of all of the Preferred Securities in connection with the payment at
maturity or redemption of all the Notes; and




     (d) the entry of an order for dissolution of the Trust by a court of competent
jurisdiction.



     Section 9.3. Termination.



     (a) The respective obligations and responsibilities of the Trustees and the Trust shall
terminate upon the latest to occur of the following: (a) the distribution by the Property Trustee
to the Holders of all amounts required to be distributed hereunder upon the liquidation of the
Trust



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pursuant to Section 9.4, or upon the redemption of all of the Trust Securities
pursuant to Section 4.2; (b) the satisfaction of any expenses owed by the Trust; and (c)
the discharge of all administrative duties of the Administrative Trustees, including the
performance of any tax reporting obligations with respect to the Trust or the Holders.



     (b) As soon as practicable thereafter, and after satisfaction of liabilities to creditors of
the Trust as required by applicable law, including section 3808 of the Delaware Statutory Trust
Act, the Delaware Trustee, when notified by the Administrative Trustees in writing of the
completion of the winding up of the Trust in accordance with the Delaware Statutory Trust Act,
shall terminate the Trust by filing, at the expense of the Depositor, a certificate of cancellation
with the Secretary of State of the State of Delaware.



     Section 9.4. Liquidation.



     (a) If an Early Termination Event specified in Section 9.2(a), (b) or
(d) occurs or upon the Expiration Date, the Trust shall be liquidated by the Administrative
Trustees as expeditiously as the Administrative Trustees shall determine to be possible by
distributing, after satisfaction of liabilities to creditors of the Trust as provided by applicable
law, to each Holder a Like Amount of Notes, subject to Section 9.4(d). Notice of
liquidation shall be given by the Administrative Trustees not less than thirty (30) nor more than
sixty (60) days prior to the Liquidation Date to each Holder of Trust Securities at such Holder’s
address appearing in the Securities Register. All such notices of liquidation shall:




     (i) state the Liquidation Date;




     (ii) state that from and after the Liquidation Date, the Trust Securities will no
longer be deemed to be Outstanding and (subject to Section 9.4(d)) any Securities
Certificates not surrendered for exchange will be deemed to represent a Like Amount of
Notes; and




     (iii) provide such information with respect to the mechanics by which Holders may
exchange Securities Certificates for Notes, or if Section 9.4(d) applies, receive a
Liquidation Distribution, as the Administrative Trustees shall deem appropriate.



     (b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect the
liquidation of the Trust and distribution of the Notes to the Holders, the Property Trustee, either
itself acting as exchange agent or through the appointment of a separate exchange agent, shall
establish a record date for such distribution (which shall not be more than forty-five (45) days
prior to the Liquidation Date nor prior to the date on which notice of such liquidation is given to
the Holders) and establish such procedures as it shall deem appropriate to effect the distribution
of Notes in exchange for the Outstanding Securities Certificates.



     (c) Except where Section 9.2(c) or 9.4(d) applies, after the Liquidation Date,
(i) the Trust Securities will no longer be deemed to be Outstanding, (ii) certificates representing
a Like Amount of Notes will be issued to Holders of Securities Certificates, upon surrender of such
Certificates to the exchange agent for exchange, (iii) the Depositor shall use its best efforts to
have the Notes listed on the New York Stock Exchange or on such other exchange, interdealer
quotation system or self-regulatory organization on which the Preferred Securities are then listed,



56









 







if any, (iv) Securities Certificates not so surrendered for exchange will be deemed to
represent a Like Amount of Notes bearing accrued and unpaid interest in an amount equal to the
accumulated and unpaid Distributions on such Securities Certificates until such certificates are so
surrendered (and until such certificates are so surrendered, no payments of interest or principal
will be made to Holders of Securities Certificates with respect to such Notes) and (v) all rights
of Holders holding Trust Securities will cease, except the right of such Holders to receive Notes
upon surrender of Securities Certificates.



     (d) Notwithstanding the other provisions of this Section 9.4, if distribution of the
Notes in the manner provided herein is determined by the Property Trustee not to be permitted or
practical, the Trust Property shall be liquidated, and the Trust shall be wound up by the
Administrative Trustees in such manner as the Administrative Trustees reasonably determines. In
such event, Holders will be entitled to receive out of the assets of the Trust available for
distribution to Holders, after satisfaction of liabilities to creditors of the Trust as provided by
applicable law, an amount equal to the Liquidation Amount per Trust Security plus accumulated and
unpaid Distributions thereon to the date of payment (such amount being the “Liquidation
Distribution”). If, upon any such winding up 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, subject to the next succeeding sentence, the amounts payable by the Trust on
the Trust Securities shall be paid on a pro rata basis (based upon Liquidation Amounts). The Holder
of the Common Securities will be entitled to receive Liquidation Distributions upon any such
winding up pro rata (based upon Liquidation Amounts) with Holders of all Trust Securities, except
that, if an Event of Default has occurred and is continuing, the Preferred Securities shall have a
priority over the Common Securities as provided in Section 4.3.



     Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of Trust.



     The Trust may not merge with or into, consolidate, amalgamate, or be replaced by, or convey,
transfer or lease its properties and assets substantially as an entirety to, any Person except
pursuant to this Article IX. At the request of the Holders of the Common Securities,
without the consent of the Holders of the Preferred Securities, the Trust may merge with or into,
consolidate, amalgamate, or be replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to a trust organized as such under the laws of any State;
provided, that:




     (a) such successor entity either (i) expressly assumes all of the obligations of the
Trust under this Trust Agreement with respect to the Preferred Securities or (ii)
substitutes for the Preferred Securities other securities having substantially the same
terms as the Preferred Securities (such other Securities, the “Successor
Securities”) so long as the Successor Securities have the same priority as the Preferred
Securities with respect to distributions and payments upon liquidation, redemption and
otherwise;




     (b) a trustee of such successor entity possessing substantially the same powers and
duties as the Property Trustee is appointed to hold the Notes;




     (c) if the Preferred Securities or the Notes are rated, such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause



57









 







the Preferred Securities or the Notes (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization that then assigns a
rating to the Preferred Securities or the Notes;




     (d) the Preferred Securities are listed, or any Successor Securities will be listed
upon notice of issuance, on any national securities exchange or interdealer quotation system
on which the Preferred Securities are then listed, if any;




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




     (f) such successor entity has a purpose substantially identical to that of the Trust;




     (g) prior to such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, the Depositor has received an Opinion of Counsel to the effect that (i)
such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does
not adversely affect the rights, preferences and privileges of the Holders of the Preferred
Securities (including any Successor Securities) in any material respect; (ii) following such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease, neither the
Trust nor such successor entity will be required to register as an “investment company”
under the Investment Company Act and (iii) following such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, the Trust (or the successor
entity) will continue to be classified as a grantor trust for U.S. federal income tax
purposes; and




     (h) the Depositor or its permitted transferee owns all of the common securities of such
successor entity.


Notwithstanding the foregoing, the Trust shall not, except with the consent of Holders of all of
the Preferred Securities, 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 other Person or
permit any other entity to consolidate, amalgamate, merge with or into or replace, the Trust if
such consolidation, amalgamation, merger, replacement, conveyance, transfer or lease would cause
the Trust or the successor entity to be taxable as a corporation or classified as other than a
grantor trust for United States federal income tax purposes or cause the Notes to be treated as
other than indebtedness of the Depositor for United States federal income tax purposes.




ARTICLE X




MISCELLANEOUS PROVISIONS




     Section 10.1. Limitation of Rights of Holders.



     Except as set forth in Section 9.2, the death, bankruptcy, termination, dissolution or
incapacity of any Person having an interest, beneficial or otherwise, in Trust Securities shall not



58









 







operate to terminate this Trust Agreement, nor annul, dissolve or terminate the Trust nor
entitle the legal representatives or heirs of such Person or any Holder for such Person, to claim
an accounting, take any action or bring any proceeding in any court for a partition or winding up
of the arrangements contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.



     Section 10.2. Agreed Tax Treatment of Trust and Trust Securities.



     The parties hereto and, by its acceptance or acquisition of a Trust Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial interest in, such Trust
Security intend and agree to treat the Trust as a grantor trust for United States federal, state
and local tax purposes, to treat the Trust Securities (including all payments and proceeds with
respect to such Trust Securities) as undivided beneficial ownership interests in the Trust Property
and not as equity in the Trust (and payments and proceeds therefrom, respectively) for United
States federal, state and local tax purposes, and to treat the Notes as indebtedness of the
Depositor for United States federal, state and local tax purposes. The provisions of this Trust
Agreement shall be interpreted to further this intention and agreement of the parties.



     Section 10.3. Amendment.



     (a) This Trust Agreement may be amended from time to time by the Property Trustee, the
Administrative Trustees and the Holder of all the Common Securities, without the consent of any
Holder of the Preferred Securities, (i) to cure any ambiguity, correct or supplement any provision
herein that may be defective or inconsistent with any other provision herein, (ii) to make or amend
any other provisions with respect to matters or questions arising under this Trust Agreement, which
shall not be inconsistent with the other provisions of this Trust Agreement, (iii) to modify,
eliminate or add to any provisions of this Trust Agreement to such extent as shall be necessary to
ensure that the Trust will neither be taxable as a corporation nor be classified as other than a
grantor trust for United States federal income tax purposes at all times that any Trust Securities
are Outstanding or to ensure that the Notes are treated as indebtedness of the Depositor for United
States federal income tax purposes, or to ensure that the Trust will not be required to register as
an “investment company” under the Investment Company Act or (iv) to add to the covenants,
restrictions or obligations of the Depositor; provided, that in the case of clauses (i),
(ii) or (iii), such action shall not adversely affect in any material respect the interests of any
Holder.



     (b) Except as provided in Section 10.3(c), any provision of this Trust Agreement may
be amended by the Property Trustee, the Administrative Trustees and the Holder of all of the Common
Securities and with (i) the consent of Holders of at least a Majority in Liquidation Amount of the
Outstanding Preferred Securities and (ii) receipt by the Trustees of an Opinion of Counsel to the
effect that such amendment or the exercise of any power granted to the Trustees in accordance with
such amendment will not cause the Trust to be taxable as a corporation or classified as other than
a grantor trust for United States federal income tax purposes or affect the treatment of the Notes
as indebtedness of the Depositor for United States federal income tax purposes or affect the
Trust’s exemption from status (or from any requirement to register) as an “investment company”
under the Investment Company Act. In addition to and subject to the foregoing, the Distribution
Dates, Redemption Date and Stated Maturity (as defined in the



59









 







Indenture) with respect to the Preferred Securities or a portion of the Preferred Securities
shall be conformed in connection with any modification of the Interest Payment Date, Redemption
Date or Stated Maturity of the Junior Subordinated Notes made by the Company and the Trust at the
direction of any holder of the Preferred Securities or a portion of the Preferred Securities as set
forth in Section 6(m) of the Purchase Agreement. If, at the time any Holder of Preferred
Securities elects to exercise such right, the Trust Agreement has not been so amended, the Property
Trustee, the Administrative Trustees, the Holder of all of the Common Securities and each Holder of
Preferred Securities each agrees, without prejudice to Section 10.3(f), to use commercially
reasonable efforts to so amend the Trust Agreement upon such election; provided, that all
reasonable expenses in connection with such modification shall be paid by the Purchaser (or the
successor to the Purchaser’s interest in the Preferred Securities).



     (c) Notwithstanding any other provision of this Trust Agreement, without the consent of each
Holder, this Trust Agreement may not be amended to (i) change the accrual rate, amount, currency or
timing of any Distribution on or the Redemption Price of the Trust Securities or otherwise
adversely affect the amount of any Distribution or other payment required to be made in respect of
the Trust Securities as of a specified date, except as set forth in the penultimate sentence of
Section 10.3(b) above, (ii) restrict or impair the right of a Holder to institute suit for
the enforcement of any such payment on or after such date, (iii) reduce the percentage of aggregate
Liquidation Amount of Outstanding Preferred Securities, the consent of whose Holders is required
for any such amendment, or the consent of whose Holders is required for any waiver of compliance
with any provision of this Trust Agreement or of defaults hereunder and their consequences provided
for in this Trust Agreement; (iv) impair or adversely affect the rights and interests of the
Holders in the Trust Property, or permit the creation of any Lien on any portion of the Trust
Property; or (v) modify the definition of “Outstanding,” this Section 10.3(c), Sections
4.1, 4.2, 4.3, 6.10(e) or Article IX.



     (d) Notwithstanding any other provision of this Trust Agreement, no Trustee shall enter into
or consent to any amendment to this Trust Agreement that would cause the Trust to be taxable as a
corporation or to be classified as other than a grantor trust for United States federal income tax
purposes or that would cause the Notes to fail or cease to be treated as indebtedness of the
Depositor for United States federal income tax purposes or that would cause the Trust to fail or
cease to qualify for the exemption from status (or from any requirement to register) as an
“investment company” under the Investment Company Act.



     (e) If any amendment to this Trust Agreement is made, the Administrative Trustees or the
Property Trustee shall promptly provide to the Depositor and the Note Trustee a copy of such
amendment.



     (f) No Trustee shall be required to enter into any amendment to this Trust Agreement that
affects its own rights, duties or immunities under this Trust Agreement. The Trustees shall be
entitled to receive an Opinion of Counsel and an Officers’ Certificate stating that any amendment
to this Trust Agreement is in compliance with this Trust Agreement and all conditions precedent
herein provided for relating to such action have been met.



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     (g) No amendment or modification to this Trust Agreement that adversely affects in any
material respect the rights, duties, liabilities, indemnities or immunities of the Delaware Trustee
hereunder shall be permitted without the prior written consent of the Delaware Trustee.



     Section 10.4. Separability.



     If any provision in this Trust Agreement or in the Securities Certificates shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby, and there shall be deemed substituted for the
provision at issue a valid, legal and enforceable provision as similar as possible to the provision
at issue.



     Section 10.5. Governing Law.



     THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE HOLDERS, THE TRUST, THE
DEPOSITOR AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT
REFERENCE TO ITS CONFLICTS OF LAWS PROVISIONS; PROVIDED, HOWEVER, THAT, TO THE FULLEST EXTENT
PERMITTED BY LAW, THERE SHALL NOT BE APPLICABLE TO THE PARTIES HEREUNDER OR THIS TRUST AGREEMENT
ANY PROVISION OF THE LAWS (COMMON OR STATUTORY) 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, (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 OR (G) THE ESTABLISHMENT OF FIDUCIARY OR OTHER STANDARDS OF RESPONSIBILITY
OR LIMITATIONS ON THE ACTS OR POWERS OF TRUSTEES THAT ARE INCONSISTENT WITH THE LIMITATIONS OR
AUTHORITIES AND POWERS OF THE TRUSTEES HEREUNDER AS SET FORTH OR REFERENCED IN THIS TRUST
AGREEMENT. SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE SHALL NOT APPLY TO THE TRUST.



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     Section 10.6. Successors.



     This Trust Agreement shall be binding upon and shall inure to the benefit of any successor to
the Depositor, the Trust and any Trustee, including any successor by operation of law. Except in
connection with a transaction involving the Depositor that is permitted under Article VIII
of the Indenture and pursuant to which the assignee agrees in writing to perform the Depositor’s
obligations hereunder, the Depositor shall not assign its obligations hereunder.



     Section 10.7. Headings.



     The Article and Section headings are for convenience only and shall not affect the
construction of this Trust Agreement



     Section 10.8. Reports, Notices and Demands.



     (a) Any report, notice, demand or other communication that by any provision of this Trust
Agreement is required or permitted to be given or served to or upon any Holder or the Depositor may
be given or served in writing delivered in person, or by reputable, overnight courier, by telecopy
or by deposit thereof, first-class postage prepaid, in the United States mail, addressed, (a) in
the case of a Holder of Preferred Securities, to such Holder as such Holder’s name and address may
appear on the Securities Register; and (b) in the case of the Holder of all the Common Securities
or the Depositor, to New Century Financial Corporation 18400 Von Karman, Suite 1000, Irvine,
California 92612, Attention: General Counsel, or to such other address as may be specified in a
written notice by the Holder of all the Common Securities or the Depositor, as the case may be, to
the Property Trustee. Such report, notice, demand or other communication to or upon a Holder or the
Depositor shall be deemed to have been given when received in person, within one (1) Business Day
following delivery by overnight courier, when telecopied with receipt confirmed, or within three
(3) Business Days following delivery by mail, 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.



     (b) Any notice, demand or other communication that by any provision of this Trust Agreement is
required or permitted to be given or served to or upon the Property Trustee, the Delaware Trustee,
the Administrative Trustees or the Trust shall be given in writing by deposit thereof, first-class
postage prepaid, in the U.S. mail, personal delivery or facsimile transmission, addressed to such
Person as follows: (i) with respect to the Property Trustee to 919 North Market Street, Suite 700,
Wilmington, Delaware 19801, Attention: Corporate Trust Department—New Century Capital Trust I,
facsimile no. (302) 575-2006, (ii) with respect to the Delaware Trustee, to 919 North Market
Street, Suite 700, Wilmington, Delaware 19801, Attention: Corporate Trust Department—New Century
Capital Trust I, facsimile no. (302) 575-2006; (iii) with respect to the Administrative Trustees,
to them at the address above for notices to the Depositor, marked “Attention: Administrative
Trustees of New Century Capital Trust I”, and (iv) with respect to the Trust, to its principal
executive office specified in Section 2.2, with a copy to the Property Trustee. Such
notice, demand or other communication to or upon the Trust, the Property Trustee or the
Administrative Trustees shall be deemed to have been sufficiently given or made only



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upon actual receipt of the writing by the Trust, the Property Trustee or the Administrative
Trustees.



     Section 10.9. Agreement Not to Petition.



     Each of the Trustees and the Depositor agree for the benefit of the Holders that, until at
least one (1) year and one (1) day after the Trust has been terminated in accordance with
Article IX, they shall not file, or join in the filing of, a petition against the Trust
under any Bankruptcy Law or otherwise join in the commencement of any proceeding against the Trust
under any Bankruptcy Law. If the Depositor takes action in violation of this Section 10.9,
the Property Trustee agrees, for the benefit of Holders, that at the expense of the Depositor, it
shall file an answer with the applicable bankruptcy court or otherwise properly contest the filing
of such petition by the Depositor against the Trust or the commencement of such action and raise
the defense that the Depositor has agreed in writing not to take such action and should be estopped
and precluded therefrom and such other defenses, if any, as counsel for the Property Trustee or the
Trust may assert.



     Section 10.10. Counterparts.



     This Trust Agreement may be executed in any number of counterparts, each of which so executed
shall be deemed to be an original, but all such counterparts shall together constitute but one and
the same instrument. Delivery of an executed signature page of this instrument by facsimile
transmission shall be effective as delivery of a manually executed counterpart hereof.



[Signature page follows.]




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     IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Trust Agreement
as of the day and year first above written.



	 	 	 	 	 	 	 
	 	 	 	 	NEW CENTURY FINANCIAL CORPORATION, 
as Depositor
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Stergios Theologides
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Stergios Theologides
	 

	 	 	 	Title:
	 	Executive Vice President and
	 

	 	 	 	 	 	General Counsel
	 
	 	 	 	 	 	 
	WELLS FARGO BANK, N.A., not in	 	WELLS FARGO DELAWARE TRUST COMPANY, as
	its individual capacity but	 	Delaware Trustee
	solely as Property Trustee	 	 	 	 
	 
	 	 	 	 	 	 
	By:

	 	/s/ Tracy M. McLamb
	 	By:
	 	/s/ Tracy M. McLamb
	 

	 	 
	 	 	 	 
	Name:

	 	Tracy M. McLamb
	 	Name:	 	Tracy M. McLamb
	Title:

	 	Vice President
	 	Title:
	 	Vice President
	 
	 	 	 	 	 	 
	/s/ Brad A. Morrice                     ,	 	/s/ Patti M. Dodge                     ,
	 	 	 
	Brad A. Morrice, as Administrative	 	Patti M. Trustee Dodge, as Administrative Trustee







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