Amended and Restated Trust Agreement



 EXHIBIT 10.23 
  

  
 AMENDED AND RESTATED TRUST AGREEMENT 
  
 among 

 
 COMMERCIAL CAPITAL BANCORP, INC., 
 as Depositor 
  
 DEUTSCHE BANK TRUST COMPANY AMERICAS, 
 as Property Trustee 
  
 DEUTSCHE BANK TRUST COMPANY DELAWARE, 
 as Delaware Trustee 
  
 and 
  
 THE
ADMINISTRATIVE TRUSTEES NAMED HEREIN 
 as Administrative Trustees 
  

  
 Dated as of March 31, 2004 
  
 CCB CAPITAL TRUST VI

  

  









 TABLE OF CONTENTS 
  

					
	 	  	 	  	Page


	 ARTICLE I.         Defined Terms
	  	1
	 SECTION 1.1.
	  	 Definitions
	  	1
		
	 ARTICLE II.         The Trust
	  	10
	 SECTION 2.1.
	  	 Name
	  	10
	 SECTION 2.2.
	  	 Office of the Delaware Trustee; Principal Place of Business
	  	11
	 SECTION 2.3.
	  	 Initial Contribution of Trust Property; Fees, Costs and Expenses
	  	11
	 SECTION 2.4.
	  	 Purposes of Trust
	  	11
	 SECTION 2.5.
	  	 Authorization to Enter into Certain Transactions
	  	11
	 SECTION 2.6.
	  	 Assets of Trust
	  	14
	 SECTION 2.7.
	  	 Title to Trust Property
	  	14
		
	 ARTICLE III.         Payment Account; Paying Agents
	  	14
	 SECTION 3.1.
	  	 Payment Account
	  	14
	 SECTION 3.2.
	  	 Appointment of Paying Agents
	  	15
		
	 ARTICLE IV.         Distributions; Redemption
	  	15
	 SECTION 4.1.
	  	 Distributions
	  	15
	 SECTION 4.2.
	  	 Redemption
	  	17
	 SECTION 4.3.
	  	 Subordination of Common Securities
	  	19
	 SECTION 4.4.
	  	 Payment Procedures
	  	20
	 SECTION 4.5.
	  	 Withholding Tax
	  	20
	 SECTION 4.6.
	  	 Tax Returns and Other Reports
	  	21
	 SECTION 4.7.
	  	 Payment of Taxes, Duties, Etc. of the Trust
	  	21
	 SECTION 4.8.
	  	 Payments under Indenture or Pursuant to Direct Actions
	  	21
	 SECTION 4.9.
	  	 Exchanges
	  	21
	 SECTION 4.10.
	  	 Calculation Agent
	  	22
	 SECTION 4.11.
	  	 Certain Accounting Matters
	  	23
		
	 ARTICLE V.         Securities
	  	23
	 SECTION 5.1.
	  	 Initial Ownership
	  	23
	 SECTION 5.2.
	  	 Authorized Trust Securities
	  	23
	 SECTION 5.3.
	  	 Issuance of the Common Securities; Subscription and Purchase of Notes
	  	24
	 SECTION 5.4.
	  	 The Securities Certificates
	  	24
	 SECTION 5.5.
	  	 Rights of Holders
	  	25
	 SECTION 5.6.
	  	 Book-Entry Preferred Securities
	  	25
	 SECTION 5.7.
	  	 Registration of Transfer and Exchange of Preferred Securities Certificates
	  	27
	 SECTION 5.8.
	  	 Mutilated, Destroyed, Lost or Stolen Securities Certificates
	  	28
	 SECTION 5.9.
	  	 Persons Deemed Holders
	  	29
	 SECTION 5.10.
	  	 Cancellation
	  	29
	 SECTION 5.11.
	  	 Ownership of Common Securities by Depositor
	  	29
	 SECTION 5.12.
	  	 Restricted Legends
	  	30
	 SECTION 5.13.
	  	 Form of Certificate of Authentication
	  	33
		
	 ARTICLE VI.         Meetings; Voting; Acts of Holders
	  	33
	 SECTION 6.1.
	  	 Notice of Meetings
	  	33

  

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	 SECTION 6.2.
	  	 Meetings of Holders of the Preferred Securities
	  	33
	 SECTION 6.3.
	  	 Voting Rights
	  	34
	 SECTION 6.4.
	  	 Proxies, Etc.
	  	34
	 SECTION 6.5.
	  	 Holder Action by Written Consent
	  	34
	 SECTION 6.6.
	  	 Record Date for Voting and Other Purposes
	  	34
	 SECTION 6.7.
	  	 Acts of Holders
	  	34
	 SECTION 6.8.
	  	 Inspection of Records
	  	35
	 SECTION 6.9.
	  	 Limitations on Voting Rights
	  	36
	 SECTION 6.10.
	  	 Acceleration of Maturity; Rescission of Annulment; Waivers of Past Defaults
	  	36
		
	 ARTICLE VII.         Representations and Warranties
	  	39
	 SECTION 7.1.
	  	 Representations and Warranties of the Property Trustee and the Delaware Trustee
	  	39
	 SECTION 7.2.
	  	 Representations and Warranties of Depositor
	  	40
		
	 ARTICLE VIII.         The Trustees
	  	41
	 SECTION 8.1.
	  	 Number of Trustees
	  	41
	 SECTION 8.2.
	  	 Property Trustee Required
	  	41
	 SECTION 8.3.
	  	 Delaware Trustee Required
	  	41
	 SECTION 8.4.
	  	 Appointment of Administrative Trustees
	  	42
	 SECTION 8.5.
	  	 Duties and Responsibilities of the Trustees
	  	42
	 SECTION 8.6.
	  	 Notices of Defaults and Extensions
	  	44
	 SECTION 8.7.
	  	 Certain Rights of Property Trustee
	  	44
	 SECTION 8.8.
	  	 Delegation of Power
	  	46
	 SECTION 8.9.
	  	 May Hold Securities
	  	46
	 SECTION 8.10.
	  	 Compensation; Reimbursement; Indemnity
	  	47
	 SECTION 8.11.
	  	 Resignation and Removal; Appointment of Successor
	  	48
	 SECTION 8.12.
	  	 Acceptance of Appointment by Successor
	  	49
	 SECTION 8.13.
	  	 Merger, Conversion, Consolidation or Succession to Business
	  	49
	 SECTION 8.14.
	  	 Not Responsible for Recitals or Issuance of Securities
	  	50
	 SECTION 8.15.
	  	 Property Trustee May File Proofs of Claim
	  	50
	 SECTION 8.16.
	  	 Reports to and from the Property Trustee.
	  	50
		
	 ARTICLE IX.         Termination, Liquidation and Merger
	  	51
	 SECTION 9.1.
	  	 Dissolution Upon Expiration Date
	  	51
	 SECTION 9.2.
	  	 Early Termination
	  	51
	 SECTION 9.3.
	  	 Termination
	  	52
	 SECTION 9.4.
	  	 Liquidation
	  	52
	 SECTION 9.5.
	  	 Mergers, Consolidations, Amalgamations or Replacements of Trust
	  	53
		
	 ARTICLE X.         Miscellaneous Provisions
	  	54
	 SECTION 10.1.
	  	 Limitation of Rights of Holders
	  	54
	 SECTION 10.2.
	  	 Agreed Tax Treatment of Trust and Trust Securities
	  	55
	 SECTION 10.3.
	  	 Amendment
	  	55
	 SECTION 10.4.
	  	 Separability
	  	56
	 SECTION 10.5.
	  	 Governing Law
	  	56
	 SECTION 10.6.
	  	 Successors
	  	57
	 SECTION 10.7.
	  	 Headings
	  	57
	 SECTION 10.8.
	  	 Reports, Notices and Demands
	  	57
	 SECTION 10.9.
	  	 Agreement Not to Petition
	  	58

  

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	 Exhibit A
	  	Certificate of Trust of CCB Capital Trust VI
	 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 other than QIBs
	 Exhibit F
	  	Form of Transferee Certificate to be Executed by QIBs
	 Exhibit G
	  	Form of Officer’s Certificate
	 Schedule A
	  	Calculation of LIBOR

  

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 AMENDED AND RESTATED TRUST AGREEMENT, dated as of March 31, 2004, among (i) Commercial Capital Bancorp,
Inc., a Nevada corporation (including any successors or permitted assigns, the “Depositor”), (ii) Deutsche Bank Trust Company Americas, a New York banking corporation, as property trustee (in such capacity, the “Property
Trustee”), (iii) Deutsche Bank Trust Company Delaware, a Delaware banking corporation, as Delaware trustee (in such capacity, the “Delaware Trustee”), (iv) Stephen H. Gordon, an individual, David S. DePillo, an individual, and
Christopher G. Hagerty, an individual, each of whose address is c/o Commercial Capital Bancorp, Inc., One Venture, Third Floor, Irvine, CA 92618, 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”) and (v) the several Holders, as hereinafter defined. 
  
 WITNESSETH 
  
 WHEREAS, the Depositor, the Property Trustee 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 March 29, 2004 (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 as Exhibit A; 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 of the Common Securities by the Trust to the Depositor, (ii) the issuance and sale of the Preferred Securities by the Trust pursuant to the Subscription Agreement and (iii) the acquisition by the
Trust from the Depositor of all of the right, title and interest in and to the Notes; 
  
 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”; 







 (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” 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 Taxes” has the meaning specified in Section 1.1 of the Indenture. 
  
 “Additional Tax Sums” has the meaning specified in Section
10.5 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. 
  

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 “Bankruptcy Event” means, with respect to any Person: 
  
 (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 Federal
or state bankruptcy, insolvency, reorganization or other similar law, (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 Federal or State bankruptcy, insolvency, reorganization or
other similar law, 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” has the meaning
specified in Section 4.10. 
  
 “Capital
Disqualification Event” has the meaning specified in Section 1.1 of the Indenture. 
  
 “Closing Date” has the meaning specified in the Placement Agreement. 
  
 “Code” means the United States Internal Revenue Code of 1986, as amended. 
  
 “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. 
  
 “Common Securities Certificate” means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit B. 
  

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 “Common Security” means an undivided 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 60 Wall Street, New York, New York 10005-2858, Attention: Corporate Trust and Agency Services. 
  
 “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. 
  
 “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 or any successor thereto. 
  
 “Early Termination Event” has the meaning specified in Section 9.2. 
  
 “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 
  

 4 








 (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; 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, and any successor statute thereto, in each case as amended from time to time. 
  
 “Expiration Date” has the meaning specified in Section 9.1. 
  
 “Extension Period” has the meaning specified in Section 4.1(a)(ii). 
  
 “Federal Reserve” means the Board of Governors of the Federal
Reserve System, the staff thereof, or a Federal Reserve Bank, acting through delegated authority, in each case under the rules, regulations and policies of the Federal Reserve System, or if at any time after the execution of this Trust Agreement any
such entity is not existing and performing the duties now assigned to it, any successor body performing similar duties or functions. 
  
 “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.

  
 “Global Preferred Security” means a Preferred
Securities Certificate evidencing ownership of Book-Entry Preferred Securities. 
  
 “Guarantee Agreement” means the Guarantee Agreement executed and delivered by the Depositor and Deutsche Bank Trust Company Americas, as guarantee trustee, contemporaneously with the execution and delivery
of this Trust Agreement for the benefit of the holders of the Preferred Securities, as amended from time to time. 
  
 “Holder” means a Person in whose name a Trust Security or Trust Securities are registered in the Securities Register; any such Person shall be a
beneficial owner within the meaning of the Delaware Statutory Trust Act. 
  

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 “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, as amended or
supplemented from time to time. 
  
 “Indenture Redemption
Price” has the meaning specified in Section 4.2(c). 
  
 “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. 
  
 “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 a Liquidation Amount equal to the 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 of the Trust, Notes having a
principal amount equal to the 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 a
principal amount equal to the Liquidation Amount of the Trust Securities in respect of which such distribution is made. 
  
 “Liquidation Amount” means the stated 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). 
  
 “Majority in Liquidation Amount of the Preferred Securities” means Preferred Securities representing more than fifty percent (50%) of the
aggregate Liquidation Amount of all (or a specified group of) then Outstanding Preferred Securities. 
  

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 “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 Floating Rate Junior Subordinated Notes issued pursuant to the Indenture. 
  
 “Office of Thrift Supervision” means the Office of Thrift
Supervision, as from time to time constituted or, if at any time after the execution of this Trust Agreement such Office is not existing and performing the duties now assigned to it, then the body performing such duties at such time. 
  
 “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, of the Depositor, and delivered to the Trustees. Any Officers’ Certificate delivered with respect to
compliance with a condition or covenant provided for in this Trust Agreement (other than the Officers’ Certificate provided pursuant to Section 8.16(a)) shall include: 
  
 (a) a statement by each officer signing the Officers’ Certificate that such officer has read the
covenant or condition and the definitions relating thereto; 
  
 (b) a brief statement of the nature and scope of the examination or investigation undertaken by such officer in rendering the Officers’ Certificate; 
  
 (c) a statement that such officer has made such examination or investigation as, in such officer’s
opinion, is necessary to enable such officer to express an informed opinion as to whether or not such covenant or condition has been complied with; and 
  
 (d) a statement as to whether, in the opinion of such officer, such condition or covenant has been complied with. 
  
 “Operative Documents” means the Placement Agreement, the Indenture,
the Trust Agreement, the Guarantee Agreement, the Subscription Agreement, the Notes 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. 
  
 “Original Issue Date” means the date of
original issuance of the Trust Securities. 
  

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

  
 “Outstanding”, when used with respect to any Trust
Securities, means, as of the date of determination, all Trust Securities theretofore executed and delivered under this Trust Agreement, except: 
  
 (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; and 
  
 (c) Trust Securities that have been paid or in exchange 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, legal and binding 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. 
  

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 “Person” means a legal person, including any individual, corporation, estate, partnership,
joint venture, association, joint stock company, company, limited liability company, trust, unincorporated association or government, or any agency or political subdivision thereof, or any other entity of whatever nature. 
  
 “Placement Agreement” means the Placement Agreement, dated as of
March 31, 2004, executed and delivered by the Trust, the Depositor and Credit Suisse First Boston LLC, as placement agent. 
  
 “Preferred Security” means an undivided 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. 
  
 “Preferred Securities Certificate” means a certificate evidencing ownership of Preferred Securities, substantially in the form attached as Exhibit C. 
  
 “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. 
  
 “Purchaser” means Credit Suisse First Boston, acting through its
Cayman Islands branch, as purchaser of the Preferred Securities pursuant to the Subscription Agreement. 
  
 “QIB” means a “qualified institutional buyer” as defined in Rule 144A under the Securities Act. 
  
 “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, with respect to any Trust Security, the Liquidation Amount of such Trust Security, plus accumulated and unpaid Distributions to the Redemption Date, plus the related amount of the premium, if any, paid by the Depositor upon the
concurrent redemption or payment at maturity of a Like Amount of Notes. 
  
 “Reference Banks” has the meaning specified in Schedule A. 
  
 “Responsible Officer” means, with respect to the Property Trustee, any Senior Vice President, any Vice President, any Assistant Vice President, the Secretary, any Assistant Secretary, the Treasurer, any
Assistant Treasurer, any Trust Officer or Assistant Trust Officer or any other officer of the Corporate Trust Department of the Property Trustee and also means, with respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer’s knowledge of and familiarity with the particular subject. 
  
 “Securities Act” means the Securities Act of 1933, and any successor statute thereto, in each case as amended from time to time. 
  

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 “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. 
  
 “Special Event Redemption Price” has the meaning specified in Section 11.2 of the Indenture. 
  
 “Subscription Agreement” means the Preferred Securities Subscription Agreement, dated as of March 31, 2004, by and among the Company, the Trust,
the Purchaser and Credit Suisse First Boston LLC (as to certain provisions thereof). 
  
 “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 “CCB Capital Trust VI,” which was created on March
29, 2004, 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, including all Schedules and Exhibits, as the
same may be modified, amended or supplemented from time to time in accordance with the applicable provisions hereof. 
  
 “Trustees” means the Administrative Trustees, the Property Trustee and the Delaware Trustee, each as defined in this Article I.

  
 “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. 
  
 ARTICLE II.

  
 THE TRUST 
  
 SECTION 2.1. Name. 
  
 The trust continued hereby shall be known as “CCB Capital Trust
VI,” 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. 
  

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 SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business. 
  
 The address of the Delaware Trustee in the State of Delaware is 1011 Centre
Road, Second Floor, Wilmington, Delaware 19805, Attention: Corporate Trust and Agency Services, 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 executive office of the Trust is c/o Commercial Capital Bancorp, Inc., One Venture, Third Floor, Irvine, CA 92618, Attention: Chief Financial Officer, 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
and (ii) 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 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 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 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 

  

 11 








 
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 and authority 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 as may be necessary or desirable in connection with the purposes and function of the Trust, including, without limitation, the Placement Agreement, the Subscription Agreement, a common
securities subscription agreement and a junior subordinated note subscription agreement; 
  
 (C) assisting in the sale of the Preferred Securities in one or more transactions exempt from registration under the Securities Act, and
in compliance with 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 and Securities
Registrar in accordance with this Trust Agreement; 
  
 (F) execution 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 Placement 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 that such Administrative Trustee has the power to execute pursuant
to this Trust Agreement; and 
  

 12 








 (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 and authority 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
collection 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; 
  
 (H) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation of the Trust with the
Secretary of State of the State of Delaware; and 
  
 (I) 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 Placement 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 applicable state securities or blue sky laws; and

  

 13 








 (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 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 this connection, 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 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. 
  
 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 

  

 14 








 
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 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 Paying Agent shall initially be the Property Trustee. 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 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 

  

 15 








 
Distributions. Distributions shall accumulate from March 31, 2004, and, except as provided in clause (ii) below, shall be payable quarterly in arrears on
January 15th, April 15th, July 15th and October 15th of each year, commencing on July 15, 2004. 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) in the event (and to the extent) that the Depositor exercises its right under the Indenture to defer the payment of interest on the
Notes, Distributions on the Trust Securities shall be deferred. Under the Indenture, so long as no Note Event of Default has occurred and is continuing, the Depositor shall have the right, at any time and from time to time during the term of the
Notes, to defer the payment of interest on the Notes for a period of up to twenty (20) consecutive quarterly interest payment periods (each such extended interest payment period, an “Extension Period”), during which Extension Period no
interest on the Notes shall be due and payable (except any Additional Tax Sums that may be due and payable). No interest on the Notes shall be due and payable during an Extension Period, except at the end thereof, but each installment of interest
that would otherwise have been due and payable during such Extension Period shall bear Additional Interest (to the extent payment of such interest would be legally enforceable) at a variable rate per annum, reset quarterly, equal to LIBOR plus
2.65%, compounded quarterly, from the dates on which amounts would have otherwise been due and payable until paid or until funds for the payment thereof have been made available for payment. If Distributions are deferred, the deferred Distributions
(including Additional Interest Amounts) shall be paid on the date that the related Extension Period terminates, to Holders of the Trust Securities as they appear on the books and records of the Trust on the record date immediately preceding such
termination date. 
  
 (iii) Distributions shall
accumulate in respect of the Trust Securities at a variable rate per annum, reset quarterly, equal to LIBOR plus 2.65% 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. The amount of Distributions payable for any period less than a full Distribution period shall be computed on the basis of a 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 
  
 (iv) 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 available in the Payment Account for the payment of such Distributions. 
  

 16 








 (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 day (whether or not a Business Day) preceding the
relevant Distribution Date. 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. 
  
 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.

  
 (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 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, in the case of partial redemption, the respective principal amounts) 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. 
  

 17 








 (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 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 April 15, 2009, in whole or in part, from time to time at a redemption price equal to one hundred percent (100%) of the principal amount thereof, together, in the case of any such redemption, with accrued interest, including any
Additional Interest, to but excluding the date fixed for redemption (the “Indenture Redemption Price”); provided, that the Depositor shall have received the prior approval of the Office of Thrift Supervision if then required. The Notes may
also be redeemed by the Depositor, at its option, in whole but not in part, upon the occurrence of a Capital Disqualification Event, an Investment Company Event or a Tax Event at the Special Event Redemption Price (as set forth in the Indenture).

  
 (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 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 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 

  

 18 








 
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 Guarantee Agreement, 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 redeemed 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, however, 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 accordance with the Applicable Depositary Procedures for the Preferred Securities 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 

  

 19 








 
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 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. 
  
 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 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 Administrative Trustees shall comply with all withholding and backup withholding tax requirements under United States federal, state and
local law. The Administrative Trustees 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 Administrative Trustees on behalf of the Trust to assist it in determining the extent of, and in fulfilling, its withholding and backup withholding tax
obligations. The Administrative Trustees 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. 

  

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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 Administrative Trustees on behalf of the Trust may reduce subsequent Distributions by the amount of such required withholding. 
  
 SECTION 4.6. Tax Returns and Other Reports. 
  
 (a) 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 and the Property
Trustee with a copy of all such returns and reports promptly after such filing or furnishing. 
  
 (b) So long as the Property Trustee is the Holder of the Notes, the Administrative Trustees will cause the Depositor’s reports on Form H-(b)11 to be delivered to the Property Trustee promptly following their
filing with the Office of Thrift Supervision. 
  
 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 receive, in exchange therefor, a Like Amount of Notes. Such election (i) shall be exercisable effective on any Distribution Date by such Depositor Affiliate delivering to the Property Trustee
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 

  

 21 








 
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 (ii) 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 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 time, on the Distribution Date on which such exchange is to occur. 
  
 SECTION 4.10. Calculation Agent. 
  
 (a) The Property Trustee shall initially, and 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-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 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 (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, Trustee, each Paying Agent and the Depositary. The Calculation Agent
will also specify to the Administrative Trustee the quotations upon which the foregoing rates and amounts are based and, in any event, the Calculation Agent shall notify the Administrative Trustee 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 

  

 22 








 
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 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 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) 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 $10,000,000 and one series of Common
Securities having an aggregate Liquidation Amount of $310,000. 
  

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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 310 Common Securities having an aggregate Liquidation Amount of $310,000, against receipt by the Trust of
the aggregate purchase price of such Common Securities of $310,000. Contemporaneously therewith and with the sale by the Trust to the Holders of an aggregate of 10,000 Preferred Securities having an aggregate Liquidation Amount of $10,000,000, an
Administrative Trustee, on behalf of the Trust, shall subscribe for and 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 $10,310,000,
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 $10,310,000 (being 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 QIBs 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 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 shall be issued in the form of Definitive Preferred
Securities Certificate. 
  
 (d) A Preferred Security shall not be
valid until authenticated by the manual signature of an Authorized Officer of the Property Trustee. Such signature shall be conclusive evidence that the Preferred Security has been authenticated under this Trust Agreement. Upon written 

  

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order of the Trust signed by one Administrative Trustee, the Property Trustee shall authenticate 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 this certificate of authentication can be found in Section 5.13. 
  
 SECTION 5.5. Rights of Holders. 
  
 The Trust Securities shall have no preemptive or similar rights 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, 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, 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 QIB 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 

  

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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. 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 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 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 and/or the Depositary Participants; provided, 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 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 

  

 26 








 
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) 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 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 the Property Trustee shall authenticate and deliver, the Preferred Securities Certificates that the Holder making the exchange is entitled to receive. 
  
 (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 

  

 27 








 
Holder’s attorney duly authorized in writing and (i) if such Preferred Securities Certificate is being transferred otherwise than to a QIB, accompanied
by a certificate of the transferee substantially in the form set forth as Exhibit E hereto or (ii) if such Preferred Securities Certificate is being transferred to a QIB, accompanied by a certificate of the transferor substantially in the
form set forth as Exhibit F 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. The Depositor initially
designates the Corporate Trust Office as its 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. 
  
 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 them harmless, the Administrative Trustees, or any
one of them, on behalf of the Trust, shall execute and make available for delivery 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 be delivered to the Securities Registrar and the Administrative Trustees such security or indemnity as may be required by them to save each of them harmless, then in the absence of notice that such Securities
Certificate shall have been acquired by a protected 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
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. 
  

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 (e) If any such mutilated, destroyed, lost or stolen Security has become or is about to become due and
payable, the Depositor in its discretion may, instead of issuing a new Security, pay such Security. 
  
 (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 owner of 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 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 it. 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 canceled Preferred Securities Certificates shall be disposed of by the Property Trustee in accordance with its customary practices and the Property
Trustee shall deliver to the Administrative Trustees a certificate of such disposition. 
  
 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 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 

  

 29 








 
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.
Restricted 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 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 CCB CAPITAL TRUST VI 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


  

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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 “QUALIFIED INSTITUTIONAL
BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501
UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF AN “ACCREDITED INVESTOR,” FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (V) PURSUANT TO AN EXEMPTION FROM THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND, IN THE CASE OF (III) OR (V), SUBJECT TO THE RIGHT OF THE TRUST AND THE DEPOSITOR TO REQUIRE AN OPINION OF COUNSEL AND OTHER INFORMATION SATISFACTORY TO EACH OF THEM 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 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 HOLDER OF THIS SECURITY, OR ANY INTEREST THEREIN, BY ITS ACCEPTANCE
HEREOF OR THEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO 

  

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TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE “CODE”) (EACH A “PLAN”), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT IN THE ENTITY, AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY
ACQUIRE OR HOLD THIS PREFERRED SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14
OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY, OR ANY INTEREST THEREIN, IS NOT PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THE
PREFERRED SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF
THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE OR HOLDING
WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION. 
  
 THIS OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES,
INCLUDING THE FEDERAL DEPOSIT INSURANCE CORPORATION (THE “FDIC”).” 
  
 (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 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 deliver, at the written direction of the Administrative Trustees and the Depositor, Preferred Securities Certificates
that do not bear the legend. 
  

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 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:
	 	 	 	 DEUTSCHE BANK TRUST COMPANY
 AMERICAS, not in its individual capacity, but
 solely as Property Trustee

					
	 	 	 	 	 	 	By:	 	 
	 	 	 	 	 	 	 	 	

	 	 	 	 	 	 	 	 	 Authorized officer


  
 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 Property 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 Property 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. 
  
 (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. 
  

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 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 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 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 

  

 34 








 
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. 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. 
  
 (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.

  

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 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, (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 the 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 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 

  

 36 








 
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 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 on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to join in such notice, whether or not such Holders remain Holders after such record date; provided, that, unless such declaration of acceleration, or rescission and annulment, as the case
may be, shall have become effective by virtue of the requisite percentage having joined in such notice prior to the day that is 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 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 

  

 37 








 
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 or any premium 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 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. 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, 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. 
  

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 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 New York banking corporation, duly organized, validly existing and in good standing under the laws of the State of New York;

  
 (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 banking corporation, duly organized,
validly existing and in good standing under the laws of 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 and similar laws affecting creditors’ rights generally and to general principles of equity; 
  
 (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 Property Trustee and the Delaware Trustee and such execution, delivery and
performance will not (i) violate the Articles of Association or By-laws of the Property Trustee or the Delaware Trustee or (ii) 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 
  

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 (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, would
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 that: 
  
 (a) the Depositor is a
corporation duly organized, validly existing and in good standing under the laws of its state of incorporation; 
  
 (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 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 bankruptcy, insolvency 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 and 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 or certificate 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; 
  
 (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; 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, would materially and adversely affect the Trust or would question the right, 

  

 40 








 
power and authority of the Depositor, as the case may be, to enter into or perform its obligations under this Trust Agreement. 
  
 ARTICLE VIII. 
  
 THE TRUSTEES 
  
 SECTION 8.1. Number of Trustees. 
  

The number of Trustees shall be five (5), provided, that the Property Trustee and the Delaware Trustee may be the same Person, in which case the number
of Trustees shall be four (4). 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 an 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 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. 
  
 (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 

  

 41 








 
duties), liabilities and obligations of the Delaware Trustee shall be limited to (a) accepting legal process 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 number of 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 the Indenture, 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 

  

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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.

  
 (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 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 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. 
  

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 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 Administrative Trustees and the Depositor, unless such default shall have been cured or waived; provided, that, except in the case of a default
in the payment of the principal of or any premium or interest (including any Additional Interest) on any Trust Security, the Property Trustee shall be fully protected in withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the Property Trustee in good faith determines that the withholding of such notice is in the interests of the Holders of the Trust Securities. 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) Within five (5) Business Days after the receipt of notice of the Depositor’s exercise of its right to defer the payment of interest on the Notes
pursuant to the Indenture, the Property Trustee shall transmit, in the manner and to the extent provided in Section 10.8, notice of such exercise to the Holders and the Administrative Trustees, unless such exercise shall have been revoked.

  
 (c) The Property Trustee shall not be deemed to have knowledge
of any Event of Default unless the Property Trustee shall have received written notice thereof from the Depositor, any Administrative Trustee or any Holder or unless an officer of the Property Trustee charged with the administration of this Trust
Agreement shall have obtained actual knowledge of such Event of Default. 
  
 (d) 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, 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 

  

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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; 
  
 (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; 
  
 (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 

  

 45 








 
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 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; and 
  
 (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 be 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. 
  
 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, 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. 
  
 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 

  

 46 








 
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 gross negligence, bad faith or willful misconduct; and 
  
 (c) to the fullest extent permitted by applicable law, to indemnify and hold harmless (i) each Trustee, (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. 
  
 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. 
  

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 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, 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 Securities for at least six (6) months may, on behalf of himself 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


  

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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 unanimous act of the remaining Administrative Trustees if there are at least two of them 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 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 and trusts 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, 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. 
  

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 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 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. 
  
 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 property of the Trust 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; 
  
 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 and from the Property Trustee. 
  
 (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 fiscal quarters 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 covering the preceding 

  

 50 








 
fiscal period, stating whether or not to the knowledge of the signers thereof the Depositor 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 to (i) the Property Trustee, (ii) the Purchaser 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 the
Placement Agent or Purchaser), a duly completed and executed certificate 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 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. 
  
 (c) The Property Trustee shall obtain all reports, certificate and
information, which it is entitled to obtain under each of the Operative Documents. 
  
 ARTICLE IX. 
  
 TERMINATION, LIQUIDATION AND MERGER 
  
 SECTION 9.1. Dissolution Upon Expiration Date. 
  
 Unless earlier dissolved, the Trust shall automatically dissolve on April 15, 2039 (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, to distribute the Notes to Holders in exchange for the Preferred Securities (which direction is optional and
wholly within the discretion of the Holder of the Common Securities), provided, that the Holder of the Common Securities shall have received the prior approval of the Office of Thrift Supervision if then required; 
  
 (c) the redemption of all of the Preferred Securities in connection with the
payment at maturity or redemption of all the Notes; and 
  

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

 
 SECTION 9.3. Termination. 
  
 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 Holders of all amounts required to be distributed hereunder upon the liquidation of the Trust 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. 
  
 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 Property Trustee as expeditiously as the Property Trustee 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 Property Trustee 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 Property Trustee 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 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 

  

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quotation system or self-regulatory organization on which the Preferred Securities are then listed, 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 Property Trustee in such manner as the Property Trustee 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; 
  

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 (c) if the Preferred Securities or the Notes are rated, such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause 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 and guarantees the obligations of such successor
entity under the Successor Securities at least to the extent provided by the Guarantee Agreement. 
  
 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 operate to terminate this Trust Agreement, nor annul, dissolve or terminate the Trust nor entitle


  

 54 








 
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, and 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 payments and proceeds therefrom, respectively) 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, or to make 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, (ii) 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 (iii) 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 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. 
  
 (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, 

  

 55 








 
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, (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 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. 
  
 (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 

  

 56 








 
STATE OF DELAWARE WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS PROVISIONS. 
  
 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 Commercial Capital Bancorp, Inc., One
Venture, Third Floor, Irvine, CA 92618, Attention: Chief Financial Officer, 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: (a) with respect to the Property Trustee to Deutsche
Bank Trust Company Americas, 60 Wall Street, New York, NY 10005, Attention: Corporate Trust and Agency Services, facsimile no. (212) 797-8622; (b) with respect to the Delaware Trustee, to Deutsche Bank Trust Company Delaware, 1011 Centre Road,
Second Floor, Wilmington, DE 19804, Attention: Corporate Trust and Agency Services, facsimile no. (302) 636-3222; (c) with respect to the Administrative Trustees, to them at the address above for notices to the Depositor, marked “Attention:
Administrative Trustees of CCB Capital Trust VI,” and (d) with respect to the Trust, to its principal executive office specified in Section 2.2, with a copy to the Property 

  

 57 








 
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 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 year and one 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. 
  
 This instrument 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.

  
 [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] 

 

 58 








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

							
	 	 	 	 	 CCB CAPITAL TRUST VI,
 as Depositor

				
	  	 	  	 	 By:
	 	/s/
	 	 	 	 	 	 	

	 	 	 	 	 	 	 Name:

	 	 	 	 	 	 	 Title:

		
	 DEUTSCHE BANK TRUST COMPANY

 AMERICAS, as Property Trustee
	 	 DEUTSCHE BANK TRUST COMPANY
DELAWARE,
 as Delaware Trustee

				
	 By:
	 	/s/	 	 By:
	 	/s/
	 	 	
	 	 	 	

	 	 	 Name:
	 	 	 	 Name:

	 	 	 Title:
	 	 	 	 Title:


  

					
			
	/s/	 	 	 	/s/
	
	 	 	 	

	 Administrative Trustee
	 	 	 	 Administrative Trustee

	 Name:
	 	 	 	 Name:

			
	/s/	 	 	 	  
	
	 	 	 	 
	 Administrative Trustee
	 	 	 	 
	 Name:
	 	 	 	 

  









 Exhibit A 
  
 CERTIFICATE OF TRUST 
  
 OF 
  
 CCB
Capital Trust VI 
  
 This Certificate of Trust of CCB Capital
Trust VI (the “Trust”) is being duly executed and filed on behalf of the Trust by the undersigned, as trustees, to form a statutory trust under the Delaware Statutory Trust Act (12 Del. C. §3801 et seq.) (the
“Act”). 
  
 1. Name. The name of the statutory
trust formed by this Certificate of Trust is: CCB Capital Trust VI. 
  
 2. Delaware Trustee. The name and business address of the trustee of the Trust with its principal place of business in the State of Delaware are Deutsche Bank Trust Company Delaware, 1011 Centre Road, Second Floor, Wilmington, DE
19805, Attention: Corporate Trust and Agency Services. 
  
 3.
Effective Date. This Certificate of Trust shall be effective upon its filing with the Secretary of State of the State of Delaware. 
  
 IN WITNESS WHEREOF, the undersigned have duly executed this Certificate of Trust in accordance with Section 3811(a)(1) of the Act. 
  

			
	Deutsche Bank Trust Company Americas, not in its individual capacity, but solely as Property Trustee
		
	By:	 	 
	 	 	

	 	 	 Name:

	 	 	 Title:



  

			
	Deutsche Bank Trust Company Delaware, not in its individual capacity, but solely as Delaware Trustee
		
	By:	 	 
	 	 	

	 	 	 Name:

	 	 	 Title:



  

 A-1 








 Exhibit B 
  
 [FORM OF COMMON SECURITIES CERTIFICATE] 
  
 THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES
LAWS AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION. THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE TRUST AGREEMENT 

 

			
	 Certificate Number
	 	                      Common Securities

		
	             C-
	 	 

  
 Certificate Evidencing
Common Securities 
  
 of 
  
 CCB Capital Trust VI 
  
 Floating Rate Common Securities 
  
 (liquidation amount $1,000 per Common Security) 
  
 CCB Capital Trust VI, a statutory trust created under the laws of the State
of Delaware (the “Trust”), hereby certifies that                      (the “Holder”) is the registered owner of
                     common securities of the Trust representing undivided common beneficial interests in the assets of the Trust and
designated the CCB Capital Trust VI Floating Rate Common Securities (liquidation amount $1,000 per Common Security) (the “Common Securities”). Except in accordance with Section 5.11 of the Trust Agreement (as defined below), the
Common Securities are not transferable and, to the fullest extent permitted by law, any attempted transfer hereof other than in accordance therewith shall be void. The designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this certificate and the Common Securities represented hereby are issued and shall in all respects be subject to the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust, dated as of March 31, 2004, as the same may be amended from time to time (the “Trust Agreement”), among Commercial Capital Bancorp, Inc., as Depositor, Deutsche Bank Trust Company Americas, as Property Trustee, Deutsche Bank Trust
Company Delaware, as Delaware Trustee, the Administrative Trustees named therein and the Holders, from time to time, of Trust Securities. The Trust will furnish a copy of the Trust Agreement to the Holder without charge upon written request to the
Trust at its principal place of business or registered office. 
  

 B-1 








 Upon receipt of this certificate, the Holder is bound by the Trust Agreement and is entitled to the
benefits thereunder. 
  
 This Common Securities Certificate shall
be governed by and construed in accordance with the laws of the State of Delaware. 
  
 Terms used but not defined herein have the meanings set forth in the Trust Agreement. 
  
 IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has executed on behalf of the Trust this
certificate this              day of                     . 
  

			
	 CCB Capital Trust VI

		
	By:	 	 
	 	 	

	 	 	 Name:

	 	 	 Administrative Trustee



  

 B-2 








 Exhibit C 
  
 [FORM OF PREFERRED SECURITIES CERTIFICATE] 
  
 “[IF THIS SECURITY IS A GLOBAL SECURITY INSERT: THIS PREFERRED SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE 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 PREFERRED 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 CCB CAPITAL TRUST VI 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 “QUALIFIED INSTITUTIONAL
BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501
UNDER THE SECURITIES ACT THAT IS ACQUIRING THE 

  

 C-1 








 
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF AN “ACCREDITED INVESTOR,” FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE
IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (V) PURSUANT TO AN EXEMPTION FROM THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND, IN THE CASE OF (III) OR (V), SUBJECT TO THE RIGHT OF THE TRUST AND THE DEPOSITOR TO REQUIRE AN OPINION OF COUNSEL AND OTHER INFORMATION
SATISFACTORY TO EACH OF THEM 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 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 HOLDER OF THIS SECURITY OR ANY INTEREST THEREIN BY ITS ACCEPTANCE HEREOF
OR THEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”),
OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) (EACH A “PLAN”), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT IN THE ENTITY, AND NO
PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR HOLD THIS PREFERRED SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY OR ANY INTEREST THEREIN IS NOT PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO
SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THE PREFERRED SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF
SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 

  

 C-2 








 
4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE
ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE OR HOLDING WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR
ADMINISTRATIVE EXEMPTION. 
  
 THIS OBLIGATION IS NOT A DEPOSIT AND
IS NOT INSURED BY THE UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCE CORPORATION (THE “FDIC”). 
  

 C-3 









			
	 Certificate Number
	 	                      Preferred Securities
                      Aggregate Liquidation Amount


  
 CUSIP NO. 

 

  
 Certificate Evidencing Preferred Securities 
  
 of 
  
 CCB
Capital Trust VI 
  
 Floating Rate Preferred Securities 

(liquidation amount $1,000 per Preferred Security) 
  
 CCB Capital Trust VI, a statutory trust created under the laws of the State of Delaware (the “Trust”), hereby certifies that
                     (the “Holder”) is the registered owner of
             Preferred Securities [if the Preferred Security is a Global Security, then insert—,or such other number of Preferred Securities represented hereby as may be set
forth in the records of the Securities Registrar hereinafter referred to in accordance with the Trust Agreement (as defined below),] of the Trust representing an undivided preferred beneficial interest in the assets of the Trust and designated the
CCB Capital Trust VI Floating Rate Preferred Securities (liquidation amount $1,000 per Preferred Security) (the “Preferred Securities”). The Preferred Securities are transferable on the books and records of the Trust, in person or by a
duly authorized attorney, upon surrender of this certificate duly endorsed and in proper form for transfer as provided in Section 5.7 of the Trust Agreement (as defined below). The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Securities are set forth in, and this certificate and the Preferred Securities represented hereby are issued and shall in all respects be subject to the terms and provisions of, the Amended and
Restated Trust Agreement of the Trust, dated as of March 31, 2004, as the same may be amended from time to time (the “Trust Agreement”), among Commercial Capital Bancorp, Inc., a Nevada corporation, as Depositor, Deutsche Bank Trust
Company Americas, as Property Trustee, Deutsche Bank Trust Company Delaware, as Delaware Trustee, the Administrative Trustees named therein and the Holders, from time to time, of Trust Securities. The Holder is entitled to the benefits of the
Guarantee Agreement entered into by Commercial Capital Bancorp, Inc. and Deutsche Bank Trust Company Americas, as Guarantee Trustee, dated as of March 31, 2004, as the same may be amended from time to time (the “Guarantee Agreement”), to
the extent provided therein. The Trust will furnish a copy of each of the Trust Agreement and the Guarantee Agreement to the Holder without charge upon written request to the Property Trustee at its principal place of business or registered office.

  
 Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder. 
  

 C-4 








 This Preferred Securities Certificate shall be governed by and construed in accordance with the laws of
the State of Delaware. 
  
 All capitalized terms used but not
defined in this Preferred Securities Certificate are used with the meanings specified in the Trust Agreement, including the Schedules and Exhibits thereto. 
  
 IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has executed on behalf of the Trust this
certificate this              day of                     ,
            . 
  

			
	 CCB CAPITAL TRUST VI

		
	By:	 	 
	 	 	

	 	 	 Name:

	 	 	 Administrative Trustee



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

			
	Deutsche Bank Trust Company Americas, not in its individual capacity, but solely as Property Trustee
		
	By:	 	 
	 	 	

	 	 	 Authorized officer



  

 C-5 








 [FORM OF REVERSE OF SECURITY] 
  
 The Trust promises to pay Distributions from March 31, 2004, or from the most recent Distribution Date to which
Distributions have been paid or duly provided for, quarterly (subject to deferral as set forth herein) in arrears on January 15th, April 15th, July 15th and October 15th of each
year, commencing on July 15, 2004, at a variable rate per annum, reset quarterly, equal to LIBOR plus 2.65% of the Liquidation Amount of the Preferred Securities represented by this Preferred Securities Certificate, together with any Additional
Interest Amounts, in respect to such period. 
  
 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 available in the Payment Account for the payment of such
Distributions. 
  
 In the event (and to the extent) that the
Depositor exercises its right under the Indenture to defer the payment of interest on the Notes, Distributions on the Preferred Securities shall be deferred. 
  
 Under the Indenture, so long as no Note Event of Default has occurred and is continuing, the Depositor shall have the right, at any time and from time to
time during the term of the Notes, to defer the payment of interest on the Notes for a period of up to twenty (20) consecutive quarterly interest payment periods (each such extended interest payment period, an “Extension Period”), during
which Extension Period no interest shall be due and payable (except any Additional Tax Sums that may be due and payable). No interest on the Notes shall be due and payable during an Extension Period, except at the end thereof, but each installment
of interest that would otherwise have been due and payable during such Extension Period shall bear Additional Interest (to the extent payment of such interest would be legally enforceable) at a variable rate per annum, reset quarterly, equal to
LIBOR plus 2.65%, compounded quarterly, from the dates on which amounts would have otherwise been due and payable until paid or until funds for the payment thereof have been made available for payment. If Distributions are deferred, the deferred
Distributions (including Additional Interest Amounts) shall be paid on the date that the related Extension Period terminates to Holders (as defined in the Trust Agreement) of the Trust Securities as they appear on the books and records of the Trust
on the record date immediately preceding such termination date. 
  
 Distributions on the Securities must be paid on the dates payable (after giving effect to any Extension Period) to the extent that the Trust has funds available for the payment of such Distributions in the Payment Account of the Trust. The
Trust’s funds available for Distribution to the Holders of the Preferred Securities will be limited to payments received from the Depositor. The payment of Distributions out of moneys held by the Trust is guaranteed by the Depositor pursuant to
the Guarantee Agreement. 
  
 During any such Extension Period, the
Depositor shall not (i) declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any of the Depositor’s capital stock or (ii) make any payment of principal of or any interest
or premium on or repay, repurchase or redeem any debt securities of the Depositor that 

  

 C-6 








 
rank pari passu in all respects with or junior in interest to the Notes (other than (a) repurchases, redemptions or other acquisitions of shares of capital
stock of the Depositor in connection with (1) any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, (2) a dividend reinvestment or stockholder
stock purchase plan or (3) the issuance of capital stock of the Depositor (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period,
(b) as a result of an exchange or conversion of any class or series of the Depositor’s capital stock (or any capital stock of a Subsidiary (as defined in the Indenture) of the Depositor) for any class or series of the Depositor’s capital
stock or of any class or series of the Depositor’s indebtedness for any class or series of the Depositor’s capital stock, (c) the purchase of fractional interests in shares of the Depositor’s capital stock pursuant to the conversion
or exchange provisions of such capital stock or the security being converted or exchanged, (d) any declaration of a dividend in connection with any Rights Plan (as defined in the Indenture), the issuance of rights, stock or other property under any
Rights Plan, or the redemption or repurchase of rights pursuant thereto or (e) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other
rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). 
  
 On each Note Redemption Date, 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. Under the Indenture, the Notes may be redeemed by the Depositor on any Interest Payment Date,
at the Depositor’s option, on or after April 15, 2009 in whole or in part from time to time at a redemption price equal to one hundred percent (100%) of the principal amount thereof or the redeemed portion thereof, as applicable, together, in
the case of any such redemption, with accrued interest, including any Additional Interest, to but excluding the date fixed for redemption; provided, that the Depositor shall have received the prior approval of the Office of Thrift Supervision if
then required. The Notes may also be redeemed by the Depositor, at its option, at any time, in whole but not in part, upon the occurrence of a Capital Disqualification Event, an Investment Company Event or a Tax Event at the Special Event Redemption
Price. 
  
 The Trust Securities 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 available in the Payment Account for the payment of such Redemption Price. 
  
 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 Security Register. If
any 

  

 C-7 








 
Preferred Securities are held by a Depositary, such Distributions shall be made to the Depositary in immediately available funds. 
  
 The indebtedness evidenced by the Notes is, to the extent provided in the
Indenture, subordinate and junior in right of payment to the prior payment in full of all Senior Debt (as defined in the Indenture), and this Security is issued subject to the provisions of the Indenture with respect thereto. 
  

 C-8 








 ASSIGNMENT 
  
 FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred Securities Certificate to: 
  
 (Insert assignee’s social security or tax identification number)

  
 (Insert address and zip code of assignee) 
  
 and irrevocably appoints 
  
 agent to transfer this Preferred Securities Certificate on the books of the Trust. The agent may substitute another to act for him or her.

  

					
	 Date:
	  	  

	  	 
		
	 Signature:
	  	  


	 	  	(Sign exactly as your name appears on the other side of this Preferred Securities Certificate)

  
 The signature(s) should be guaranteed
by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15. 
  

 C-9 








 Exhibit D 
  
 Junior Subordinated Indenture 
  

 D-1 








 Exhibit E 
  
 FORM OF TRANSFEREE CERTIFICATE 
 TO BE EXECUTED
BY TRANSFEREES OTHER THAN QIBS 
  

			
	 	 	            , [            ]
	 Commercial Capital Bancorp, Inc.
 CCB Capital Trust
VI
 One Venture, Third Floor
 Irvine, CA 92618
	 	 

  

	 	Re:	Purchase of $1,000 stated liquidation amount of Floating Rate Preferred Securities (the “Preferred Securities”) of CCB Capital Trust VI 

  
 Ladies and Gentlemen: 
  
 In connection with our purchase of the Preferred Securities we confirm that: 
  
 1. We understand that the Floating Rate Preferred Securities (the
“Preferred Securities”) of CCB Capital Trust VI (the “Trust”) (including the guarantee (the “Guarantee”) of Commercial Capital Bancorp, Inc. (the “Company”) executed in connection therewith) and the Floating
Rate Junior Subordinated Notes due 2034 of the Company (the “Subordinated Notes”) (the Preferred Securities, the Guarantee and the Subordinated Notes together being referred to herein as the “Offered Securities”), have not been
registered under the Securities Act of 1933, as amended (the “Securities Act”), and may not be offered or sold except as permitted in the following sentence. We agree on our own behalf and on behalf of any investor account for which we are
purchasing the Offered Securities that, if we decide to offer, sell or otherwise transfer any such Offered Securities, (i) such offer, sale or transfer will be made only (a) to the Trust, (b) to a person we reasonably believe is a “qualified
institutional buyer” (a “QIB”) (as defined in Rule 144 under the Securities Act) in a transaction meeting the requirements of Rule 144A, (c) to an institutional “accredited investor” within the meaning of subparagraph (a)
(1), (2), (3) or (7) of Rule 501 under the Securities Act that is acquiring Offered Securities for its own account, or for the account of such an “accredited investor,” for investment purposes and not with a view to, or for offer or sale
in connection with, any distribution thereof in violation of the Securities Act, (d) pursuant to an effective registration statement under the Securities Act, or (e) pursuant to an exemption from the Securities Act, in each case in accordance with
any applicable securities laws of any state of the United States or any other applicable jurisdiction and, in the case of (c) or (e), subject to the right of the Trust and the depositor to require an opinion of counsel and other information
satisfactory to each of them. The foregoing restrictions on resale will not apply subsequent to the date on which, in the written opinion of counsel, the Preferred Securities are not “restricted securities” within the meaning of Rule 144
under the Securities Act. If any resale or other transfer of the Offered Securities is proposed to be made pursuant to clause (c) or (e) above, the transferor shall deliver a letter from the transferee substantially in the form of this letter to the
Property Trustee as Transfer Agent, which shall provide as applicable, among other things, that the transferee is an “accredited investor” within the meaning of subparagraph (a) (1), (2), (3) or (7) of Rule 501 under the Securities Act
that is acquiring such Securities for investment purposes and not for distribution in violation of the Securities Act. We acknowledge 

  

 E-1 








 
on our behalf and on behalf of any investor account for which we are purchasing Securities that the Trust and the Company reserve the right prior to any
offer, sale or other transfer pursuant to clause (c) or (e) to require the delivery of any opinion of counsel, certifications and/or other information satisfactory to the Trust and the Company. We understand that the certificates for any Offered
Security that we receive will bear a legend substantially to the effect of the foregoing. 
  
 2. We are an “accredited investor” within the meaning of subparagraph (a) (1), (2), (3) or (7) of Rule 501 under the Securities Act purchasing for our own account or for the account of such an
“accredited investor,” and we are acquiring the Offered Securities for investment purposes and not with view to, or for offer or sale in connection with, any distribution in violation of the Securities Act, and we have such knowledge and
experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Offered Securities, and we and any account for which we are acting are each able to bear the economic risks of our or its
investment. 
  
 3. We are acquiring the Offered Securities
purchased by us for our own account (or for one or more accounts as to each of which we exercise sole investment discretion and have authority to make, and do make, the statements contained in this letter) and not with a view to any distribution of
the Offered Securities, subject, nevertheless, to the understanding that the disposition of our property will at all times be and remain within our control. 
  
 4. In the event that we purchase any Preferred Securities or any Subordinated Notes, we will acquire such Preferred Securities having an aggregate stated
liquidation amount of not less than $100,000 or such Subordinated Notes having an aggregate principal amount not less than $100,000, for our own account and for each separate account for which we are acting. 
  
 5. We acknowledge that we either (A) are not a fiduciary of a employee
benefit, individual retirement account or other plan or arrangement subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or Section 4975 of the Internal Revenue Code of 1986, as amended (the
“Code”) (each a “Plan”), or an entity whose underlying assets include “plan assets” by reason of any Plan’s investment in the entity, and are not purchasing the Offered Securities on behalf of or with “plan
assets” by reason of any Plan’s investment in the entity, (B) are eligible for the exemptive relief available under one or more of the following prohibited transaction class exemptions (“PTCEs”) issued by the U.S. Department of
Labor: PTCE 96-23, 95-60, 91-38, 90-1 or 84-14 or another applicable exemption, or (C) our purchase and holding of this security, or any interest therein, is not prohibited by Section 406 of ERISA or Section 4975 of the Code with respect to such
purchase or holding. 
  
 6. We acknowledge that the Trust and the
Company and others will rely upon the truth and accuracy of the foregoing acknowledgments, representations, warranties and agreements and agree that if any of the acknowledgments, representations, warranties and agreements deemed to have been made
by our purchase of the Offered Securities are no longer accurate, we shall promptly notify the Company. If we are acquiring any Offered Securities as a fiduciary or agent for one or more investor accounts, we represent that we have sole discretion
with respect to each such investor account and that we have full power to make the foregoing acknowledgments, representations and agreement on behalf of each such investor account. 
  

 E-2 









			
	(Name of Purchaser)
		
	By:	 	 
	 	 	

		
	Date:	 	 
	 	 	



  
 Upon transfer,
the Offered Securities would be registered in the name of the new beneficial owner as follows. 
  
 Name:
                                        
                             
  
 Address:
                                        
                         
  
 Taxpayer ID Number:
                                        
     
  

 E-3 








 Exhibit F 
  
 FORM OF TRANSFEROR CERTIFICATE 
 TO BE EXECUTED
FOR QIBs 
  

			
	 	 	            , [            ]
	 Commercial Capital Bancorp, Inc.
 CCB Capital Trust
VI
 One Venture, Third Floor
 Irvine, CA 92618
	 	 

  

	 	Re:	Purchase of $1,000 stated liquidation amount of Floating Rate Preferred Securities (the “Preferred Securities”) of CCB Capital Trust VI 

  
 Reference is hereby made to the Amended and Restated Trust Agreement of CCB
Capital Trust VI, dated as of March 31, 2004 (the “Trust Agreement”), among Stephen H. Gordon, David S. DePillo and Christopher G. Hagerty, as Administrative Trustees, Deutsche Bank Trust Company Delaware, as Delaware Trustee, Deutsche
Bank Trust Company Americas, as Property Trustee, Commercial Capital Bancorp, Inc., as Depositor, and the holders from time to time of undivided beneficial interests in the assets of CCB Capital Trust VI. Capitalized terms used but not defined
herein shall have the meanings given them in the Trust Agreement. 
  
 This letter relates to $                     aggregate liquidation amount of Preferred Securities which are held in the name of
                     (the “Transferor”). 
  
 In accordance with Article V of the Trust Agreement, the Transferor hereby certifies that such Preferred Securities are being transferred in accordance
with (i) the transfer restrictions set forth in the Preferred Securities and (ii) Rule 144A under the Securities Act (“Rule 144A”), to a transferee that the Transferor reasonably believes is purchasing the Preferred Securities for its own
account or an account with respect to which the transferee exercises sole investment discretion and the transferee and any such account is a “qualified institutional buyer” within the meaning of Rule 144A, in a transaction meeting the
requirements of Rule 144A and in accordance with applicable securities laws of any state of the United States or any other jurisdiction. 
  
 You are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any
administrative or legal proceeding or official inquiry with respect to the matters covered hereby. 
  

			
	 (Name of Transferor)

		
	By:	 	 
	 	 	

	 	 	 Name:

	 	 	 Title:



  
 Date:
                                      
  

 F-1 








 Exhibit G 
  
 Officer’s Certificate 
  
 The undersigned, the [Chief Financial Officer] [Treasurer] [Executive Vice President] hereby certifies, pursuant to Section 8.16(b) of the Amended and
Restated Trust Agreement, dated as of March 31, 2004, among Commercial Capital Bancorp, Inc. (the “Company”), Deutsche Bank Trust Company Americas, as property trustee, Deutsche Bank Trust Company Delaware, as Delaware trustee and the
administrative trustees named therein, that, as of [date], [20            ], the Company had the following ratios and balances: 
  
 BANK HOLDING COMPANY 
 As of [Quarterly Financial Dates] 
  

					
	 Tier 1 Risk Weighted Assets
	  	 	_________	%
	 Ratio of Double Leverage
	  	 	_________	%
	 Non-Performing Assets to Loans and OREO
	  	 	_________	%
	 Tangible Common Equity as a Percentage of Tangible Assets
	  	 	_________	%
	 Ratio of Reserves to Non-Performing Loans
	  	 	_________	%
	 Ratio of Net Charge-Offs to Loans
	  	 	_________	%
	 Return on Average Assets (annualized)
	  	 	_________	%
	 Net Interest Margin (annualized)
	  	 	_________	%
	 Efficiency Ratio
	  	 	_________	%
	 Ratio of Loans to Assets
	  	 	_________	%
	 Ratio of Loans to Deposits
	  	 	_________	%
	 Double Leverage (exclude trust preferred as equity)
	  	 	_________	%
	 Total Assets
	  	$	                	 
	 Year to Date Income
	  	$	                	 

  

	*	A table describing the quarterly report calculation procedures is provided on page             


  
 [FOR FISCAL YEAR END: Attached hereto are the audited
consolidated financial statements (including the balance sheet, income statement and statement of cash flows, and notes thereto, together with the report of the independent accountants thereon) of the Company and its consolidated subsidiaries for
the three years ended             , 20            .] 
  
 [FOR FISCAL QUARTER END: Attached hereto are the unaudited consolidated and consolidating financial statements (including the balance
sheet and income statement) of the Company and its consolidated subsidiaries for the fiscal quarter] ended [date], 20            . 
  

 G-1 








 The financial statements fairly present in all material respects, in accordance with U.S. generally accepted accounting
principles (“GAAP”), the financial position of the Company and its consolidated subsidiaries, and the results of operations and changes in financial condition as of the date, and for the
[             quarter interim] [annual] period ended [date], 20            , and such financial statements have
been prepared in accordance with GAAP consistently applied throughout the period involved (expect as otherwise noted therein). 
  
 IN WITNESS WHEREOF, the undersigned has executed this Officer’s Certificate as of this
             day of             , 20         
  

	
	
	 
	

	Name:
	Title:
	
	 COMMERCIAL CAPITAL BANCORP, INC.
 One Venture, Third
Floor
 Irvine, CA 92618
 (949) 585-7500



  

 G-2 








 Financial Definitions 
  
 THRIFT HOLDING COMPANY 
  

					
	 Report Item

	  	 Corresponding TFR

	  	Description of Calculation


			
	 Tier I Risk Weighted Assets
	  	 Schedule CCR – Consolidated Capital Requirement
 CCR
830
	  	Tier 1 Risk Ratio: Core
Capital (Tier 1)/Risk-
adjusted assets
			
	 Ratio of Double Leverage
	  	Not applicable	  	Not applicable
			
	 Non-performing assets to loans and OREO
	  	 Schedule PD – Consolidated Past Due and Nonaccrual
 Schedule SC – Consolidated Statement of Condition
 PD30/(SC23+SC30+SC34+SC40)
	  	Total Non-performing
assets (NPLs +
Foreclosed Real
Estate+Other Non-
accrual & Repossessed
assets+Foreclosed Real
Estate)
			
	 Tangible Common Equity as a Percentage of Total Assets
	  	 Schedule CCR
 CCR 840
	  	(Equity Capital-
Goodwill) /
(Total assets -
Goodwill)
			
	 Ratio of Reserves to Non-performing loans
	  	SC283/PD30	  	Total loan loss reserves /
Total Non-performing
loans
			
	 Ratio of Net Charge-offs to Loans
	  	 Schedule VA – Consolidated Valuation Allowances and Related Data
  
 (VA155-VA135)/(SC23+SC30+SC34)
	  	Net charge offs for the
period as a percentage
of average loans
			
	 Return on Assets (annualized)
	  	 Schedule SO – Consolidated Statements of Operations
 SO91/SC60
	  	Net income as a
percentage of assets
			
	 Net interest margin (annualized)
	  	SO311/((SC10-SC110)+SC20+SC23+SC30+SC34)	  	Net interest income /
Average earning assets
			
	 Efficiency Ratio
	  	(SO51/(SO311+SO40))	  	(Non-interest expense) /
(Net interest income +
Non-interest income)
			
	 Ratio of Loans to Assets
	  	(SC23+SC30+SC34)/(SC60)	  	Total Loan & Leases /
Total assets
			
	 Ratio of Loans to Deposits
	  	(SC23+SC30+SC34)/(SC710)	  	Total Loans & Leases /
Total Deposits
			
	 Total Assets
	  	 Schedule SC
 SC60
	  	The sum of total assets.
			
	 Net Income
	  	 Schedule SO
 SO91
	  	The sum of income
(loss).

  

 G-3 








 Schedule A 
  
 With respect to the Trust Securities, the London interbank offered rate (“LIBOR”) shall be determined by the Calculation Agent in accordance
with the following provisions (in each case rounded to the nearest .000001%): 
  
 (1) On the second LIBOR Business Day (as defined below) prior to a Distribution Date (except, with respect to the first distribution payment date, on March 29, 2004) (each such day, a “LIBOR Determination Date”), LIBOR for any
given security shall, for the following distribution period, equal the rate, as obtained by the Calculation Agent from Bloomberg Financial Markets Commodities News, for three-month U.S. Dollar deposits in Europe, which appears on Dow Jones Telerate
Page 3750 (as defined in the International Swaps and Derivatives Association, Inc. 1991 Interest Rate and Currency Exchange Definitions), or such other page as may replace such Page 3750, as of 11:00 a.m. (London time) on such LIBOR Determination
Date. 
  
 (2) If, on any LIBOR Determination Date, such rate does not appear on
Dow Jones Telerate Page 3750 or such other page as may replace such Page 3750, the Calculation Agent shall determine the arithmetic mean of the offered quotations of the Reference Banks (as defined below) to leading banks in the London interbank
market for three-month U.S. Dollar deposits in Europe in an amount determined by the Calculation Agent by reference to requests for quotations as of approximately 11:00 a.m. (London time) on the LIBOR Determination Date made by the Calculation Agent
to the Reference Banks. If, on any LIBOR Determination Date, at least two of the Reference Banks provide such quotations, LIBOR shall equal such arithmetic mean of such quotations. If, on any LIBOR Determination Date, only one or none of the
Reference Banks provide such quotations, LIBOR shall be deemed to be the arithmetic mean of the offered quotations that leading banks in the City of New York selected by the Calculation Agent are quoting on the relevant LIBOR Determination Date for
three-month U.S. Dollar deposits in Europe in an amount determined by the Calculation Agent by reference to the principal London offices of leading banks in the London interbank market; provided, that if the Calculation Agent is required but is
unable to determine a rate in accordance with at least one of the procedures provided above, LIBOR shall be LIBOR as determined on the previous LIBOR Determination Date. 
  
 (3) As used herein: “Reference Banks” means four major banks in the London interbank market selected by the Calculation Agent; and
“LIBOR Business Day” means a day on which commercial banks are open for business (including dealings in foreign exchange and foreign currency deposits) in London. 
  

 Schedule A-1