Exhibit 10.5.2


 





 


June 22, 2006


 


Via e-mail, Hand Delivery & U.S. Mail


 


Re:                               Amended and Restated Employment Agreement: dated December 19, 2005 by and between
Commercial Capital Bancorp, and James R. Daley; 


Amended and Restated
Employment Agreement;
dated December 19, 2005 by and between Commercial Capital Bank, FSB and James
R. Daley;


 


Agreement and Plan of Merger
by and among Washington Mutual. Inc. Commercial Capital Bancorp, Inc. and Bruin
Acquisition Inc. dated April 23, 2006.


 


Dear Jim:


 


This letter will serve to confirm our
discussions and the understandings reached with respect to your Amended and
Restated Employment Agreement dated December 19, 2005, by and between
Commercial Capital Bancorp, Inc. (“CCBI”), and James R. Daley; (the “Executive”),
and that certain Amended and Restated Employment Agreement dated December 19,
2005 by and between Commercial Capital Bank, FSB (“CCB”), and Executive (herein
collectively the two employment agreements shall be referred to as the “Daley
Agreements”).


 


As you are aware, pursuant to that certain
Agreement and Plan of Merger by and among Washington Mutual, Inc. (“WAMU”),
CCBI and Bruin Acquisition Inc. dated April 23, 2006 (the “Merger
Agreement”), it
is contemplated that CCBI will merge with a subsidiary of WAMU, (the “Merger”), with CCBI remaining as the
surviving corporation and a wholly owned subsidiary of WAMU. In that regard, we
have discussed, effective as of the date of the consummation of the Merger (the
“Effective
Date”), pursuant
to the Daley Agreements, you are entitled to terminate your employment and
receive certain payments and benefits upon such termination.


 


 

















 


Moreover, we have informed you that WAMU has
expressed no interest in integrating into WAMU the business activities of the
Commercial Banking Division after the Effective
Date. Consequently, and in consideration of the promises and
assurances provided for herein, you have agreed to announce your resignation
prior to the Effective Date from
CCBI and CCB to be effective upon the Effective
Date.


 


1.                                       Termination Of Employment & Termination
of Daley Agreements.


 


(a)                                  Termination of Employment. Effective as of the Effective Date, the Executive’s employment
with CCBI and any of its affiliates shall terminate. The Executive hereby
resigns effective as of the Effective Date, from
all positions that the Executive holds with CCBI and any of its affiliates.


 


(b)                                 Termination of Daley Agreements. Effective as of the Effective Date, the Daley Agreements shall
terminate and be of no further force and effect, and neither Executive nor CCBI
and its affiliates shall have any further rights thereunder; provided that
Sections 13(d) and 14 of the Daley Agreements shall survive termination of the Daley
Agreements.


 


2.                                       Severance Payments and Benefits.


 


(a)                                  Payments and Benefits. In full satisfaction of all payments and
benefits to which the Executive is entitled under the Daley Agreements, CCBI
shall provide the Executive with the following upon the Effective Date and following expiration of
the Revocation Period (without the Executive revoking the Release, as such
terms are defined in Section 2(d) below):


 


(i)                                     a lump sum payment of the Executive’s accrued
but unpaid base salary, if any, as of and through the date of Effective Date; and


 


(ii)                                  life, medical, dental and disability
insurance benefits provided pursuant to Section 13(d) of the Daley Agreements,
less all applicable withholding taxes; and


 


(iii)                               a lump sum payment equal to $4,700,282 in
respect of all other severance payments and benefits.


 


(b)                                 Excise Tax Protections. Notwithstanding anything set forth in this
letter to the contrary, the provisions set forth in Section 14 of the Daley
Agreements (Parachute Payment Provision) shall continue to apply on and following the Effective Date, but only with respect to
payments deemed to be made contingent upon the Merger.


 


(c)                                  Salary Continuation Agreement and Split
Dollar Life Insurance Policy.
Notwithstanding anything set forth in this letter agreement to the contrary,
nothing in this letter agreement shall limit the Executive’s right to payments
from WAMU or its affiliates pursuant to Executive’s Salary Continuation
Agreement with CCB dated April 1, 2006, nor limit the Executive’s rights and
benefits under his Split Dollar Life Insurance Policy maintained by CCB


 


2

















 


 


(d)                                 Release. Concurrently with the execution of this letter agreement, the
Executive shall execute the WAMU Acknowledgement and the Mutual General Release
attached to this letter agreement as Exhibit “A”, and Exhibit “B” respectively,
and the only severance and Change-in-Control
Benefits the Executive shall be entitled to receive under the Daley
Agreements shall be payments pursuant to section 2 of this letter agreement as
a result of a change in control provided that the revocation period shall have
expired without the Executive revoking such Mutual General Release.


 


3.                                       Post Announcement of Executive’s Resignation.


 


(a)                                  Executive’s Continuing Services.


 


(i)                                     Post the announcement of Executive’s
resignation and prior to the Effective Date,
Executive will continue to be an employee of CCB, and Executive
agrees to provide Windup Services as hereinafter defined to CCBI and to such
other affiliates as CCBI shall reasonably request. Subject to the terms and
conditions of this letter agreement, the Executive shall, from time to time,
provide such Windup Services as CCBI shall reasonably request.


 


(ii)                                  For purposes of this letter agreement, the
term “Windup Services” shall mean any consulting services reasonably requested
by CCBI and its affiliates, but which shall include, without limitation, the
following:


 


(A)                              consultation regarding the orderly wind up of
the Commercial Banking Division of CCB including: planned cessation of all
business operations, staffing reductions, layoffs, terminations and the wind up
of existing customer relations.


 


(B)                                consultation as may be reasonably requested
in the defense or prosecution of any claims or actions now in existence or
which may be brought in the future against or on behalf of CCBI or its
affiliates which relate to events or occurrences that transpired while
Executive was employed by CCB (provided, however, that such cooperation shall
not materially and adversely affect the Executive or expose the Executive to an
increased probability of civil or criminal litigation), which shall include,
but not be limited to, being available to meet with in-house counsel or
retained counsel for CCBI and its affiliates to prepare for discovery or trial,
at mutually convenient times.


 


(C)                                reasonable cooperation fully with CCBI and
its affiliates in connection with any investigation or review by any federal,
state, or local regulatory authority as any such investigation or review
relates to events or occurrences that transpired while the Executive was
employed by CCBI; and


 


(D)                               assistance in the wind up of the business
activities of the Commercial Banking Division as a “legacy” business, which
will cease to exist as of the Effective
Date, in connection with the Merger,
including, but not limited to Executive assisting in preserving
historical information of significance with


 


3

















 


respect to cessation of the business
activities of the Commercial Banking Division, and any special projects related
to personnel and staffing reductions and attending strategic planning and other
meetings with the management team of CCBI and its affiliates to assure the
orderly wind up of the Commercial Banking Division prior to the Effective Date.


 


(b)                                 Executive’s Status Post Resignation
Announcement. Executive
shall only consult, render advice and perform such tasks as the Executive
determines are necessary to provide the Windup Services required by CCBI or its
affiliates in accordance with this Section 3. The Executive shall have no
authority to act as an agent of CCBI or its affiliates, except on authority
specifically so delegated, and Executive shall not represent to the contrary to
any other person.


 


(c)                                  Expenses. CCBI shall, or shall cause CCB to, reimburse the Executive for all
reasonable expenses incurred by the Executive while performing the Windup
Services under this Section 3, upon presentation by the Executive to CCBI from
time to time of appropriately itemized and approved (consistent with CCBI's or
CCB’s as applicable, policy) accounts of such expenditures.


 


4.                                       Full Satisfaction. The Executive hereby acknowledges and
agrees that, except for the Severance Payment that will become payable to the
Executive and the other payments and benefits described in Sections 2, 3, and 6
of this letter agreement to which the Executive shall become entitled as of the
Effective Date, the Executive
shall not be entitled to any other compensation or benefits from CCBI or its
affiliates, including, without limitation, any other severance or termination
benefits; provided that it is agreed that nothing in this letter
agreement shall constitute a waiver of the Executive’s rights to vested
benefits, if any, under CCBI’s group health or employee pension benefit plans
in respect of the Executive’s services to CCBI prior to the Effective Date.


 


5.                                       Covenants Not to Disclose Confidential
Information. Executive
agrees that he shall not, without the prior written permission of CCBI or CCB
in each case, publish, disclose or make available to any other person, firm or
corporation, either during or after the termination of this letter agreement,
any Confidential Information which Executive may have obtained before or during
the period Executive was employed by CCB, or which Executive may create prior
to the Effective Date. Executive
agrees to execute any and all such additional agreements and instruments that
CCBI or CCB may deem reasonably necessary in order to protect the
confidentiality of such Confidential Information or otherwise to effectuate the
purpose and intent of this Section 5. Prior to the Effective Date, and in connection with the Windup Services,
Executive shall return all documents, files, notes, writings and other tangible
evidence of such Confidential Information to CCBI, and its subsidiaries. Prior
to the Effective Date, and in
connection with the Windup Services being completed, Executive shall return any
personal computer, electronic storage device, cell telephone or electronic
memory storage devices, provided to Executive by CCBI or CCB. Executive may
retain and may continue to use the Executive’s current mobile cell telephone
number after the Effective Date. Notwithstanding
the foregoing, nothing shall prevent Executive from soliciting or doing business
with any customer of the Commercial Banking Division, or from soliciting or


 


4

















 


recruiting any current or former employee of the Commercial Banking
Division, using any information relating solely to the Commercial Banking
Division and its customers and employees that became known to the Executive in
the ordinary course of his employment with CCB; provided Executive represents
and warrants to CCBI and CCB that Executive shall comply with any applicable
Court orders, including the Preliminary Injunction and any judgment entered or
settlement reached by the parties in the Comerica Bank Litigation. For purposes
of this paragraph 5, Confidential Information shall be deemed to include any
information acquired by Executive while employed by CCBI and CCB and all
information acquired by Executive while employed by CCBI and CCB related to the
defense of the Comerica Bank Litigation.


 


6. Defense and Indemnity Assurances. By letter dated December
15, 2005, Executive has been provided with certain assurances regarding the
defense and indemnification obligation of CCB in connection with litigation
styled, Comerica Bank v. CCBI, CCB, et al.,
a proceeding filed in the San Francisco Superior Court, Case # CGC-05-4543546 (hereinafter the “Comerica
Bank Litigation”), and pursuant to a Reservation of Rights regarding
Indemnification; (hereinafter “the December 15, 2005 Indemnification Letter”),
attached hereto as Exhibit C. This letter will serve to confirm and to reaffirm
the defense and indemnification assurances Executive was provided by CCB as set
forth in the December 15, 2005 Indemnification Letter, with the following
modifications. First, CCB hereby revokes its Reservation of Rights in the
December 15, 2005 Indemnification Letter, and CCB agrees to indemnify Executive
for any defense costs and liability arising out of the Comerica Bank Litigation
and for any criminal investigation or proceeding relating to the subject matter
of the Comerica Bank Litigation to the fullest extent permitted by law,
including without limitation Office of Thrift Supervision (“OTS”), Regulation
12 CFR Section 545.121, and Section 78.7502 of the Nevada Revised Statutes, as
applicable. Second, CCB and CCBI confirm that Executive may be represented by
counsel of your choice, so long as it is reasonably acceptable to CCBI, and its
insurer, for matters relating to the Comerica Bank Litigation. We confirm our
understanding that you are currently being represented by Keker & Van Nest,
LLP and CCBI’s insurer has consented to such legal representation of the
Executive. Third, subject to Executive’s consent not to be unreasonably
withheld, Executive agrees to dismiss, settle or drop prosecution of the Orange
County Actions, in connection with the parties settlement of the Comerica Bank
Litigation, and CCB will also pay your legal fees and costs for the two (2)
matters currently pending in Orange County Superior Court relating to the
Comerica Bank Litigation, Case Nos. 05 CC 12260 and 06 CC 06440, (the “Orange
County Actions”). CCB’s indemnity obligations set forth herein shall be binding
upon CCBI and its successors. Please feel free to consult with an attorney of
your choice, at your own cost, concerning your rights to indemnity or defense
and any other issue relating to the Comerica Bank Litigation.


 


(a) WAMU Indemnification Section 6.10 of
the Merger Agreement. This letter will further serve to
confirm that Executive shall be and is entitled to receive from and after the Effective Time pursuant to the Merger Agreement, Indemnification from the
Indemnifying Party, (WAMU), as
provided for in Section 6.10 of the Merger
Agreement as a present and as of the Effective Date a former officer of CCBI or a subsidiary


 


5

















 


determined as of the Effective Time.
As set forth in Section 6.10(d) of the Merger Agreement, the provisions of Section 6.10 are
intended to be for the benefit of and shall be enforceable by each of the Indemnified Parties, including Executive
and his heirs.


 


7.          Executive
Signing Bonus $500,000 Paid for Continued Employment.  CCB has previously paid Executive a
$500,000 bonus of which payment was specifically conditioned on Executive’s
continued employment with CCB for three (3) years. This letter will serve to
confirm that subject to the Executive executing and accepting the terms of this
letter agreement, the aforementioned Acknowledgement, the Mutual General
Release and Executive performing the Windup Services herein described as of the
Effective Date, no portion of the
Executive’s $500,000 bonus previously paid to Executive by CCBI or its
subsidiary is required to be returned to CCB upon the Effective Date or thereafter in connection
with Executive’s announced resignation of employment from CCBI and CCB to be
effective upon the Effective Date.


 


8.          Governing
Law. This letter agreement
shall be governed, construed and interpreted under the laws of the State of
California.


 


9.          Miscellaneous.


 


(a)                                  Survival of Provisions. The obligations contained in Sections 2, 5,
6 and 9 of this letter agreement shall survive in accordance with their terms
the termination or expiration of Executive’s employment with CCBI and CCB and
shall be fully enforceable thereafter.


 


(b)                                 Arbitration. CCBI and the Executive hereby agree that any
dispute or controversy arising under or in connection with this letter
agreement, other than injunctive relief under Section 5 or 9 of this letter
agreement, shall be settled exclusively by arbitration, conducted before a
single arbitrator in Orange County, California (applying California law) in
accordance with the National Rules for the Resolution of Employment Disputes of
the American Arbitration Association then in effect. The decision of the
arbitrator will be final and binding upon the parties hereto. Judgment may be
entered on the arbitrator’s award in any court having jurisdiction. The Company
shall bear all costs associated with such arbitration.


 


(c)                                  Severability. In the event that any one or more of the
provisions of this letter agreement shall be or become invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the remaining
provisions of this letter agreement shall not be affected thereby.


 


(d)                                 Notice. For the purpose of this letter agreement, notices and all other communications
provided for in the letter agreement shall be in writing and shall be deemed to
have been duly given when delivered by hand or overnight courier or three days
after it has been mailed by United States registered mail, return receipt
requested, postage prepaid, addressed to the respective addresses set forth
below in this letter agreement, or to such other address as either party may
have furnished to the other in writing in accordance herewith, except that
notice of change of address shall be effective only upon receipt.


 


6

















 


	
   

  	
  If
  to CCBI:

  
	
   

  	
  Commercial
  Capital Bancorp, Inc.

  
	
   

  	
  8105
  Irvine Center Drive, Suite 1500

  
	
   

  	
  Irvine
  CA 92618

  
	
   

  	
  Attention:
  Donald E. Royer,

  
	
   

  	
  Executive
  Vice President. General Counsel

  
	
   

  	
   

  
	
   

  	
  If
  to WAMU:

  
	
   

  	
  Washington
  Mutual, Inc.

  
	
   

  	
  1201
  Third Avenue-WMT 1501

  
	
   

  	
  Seattle,
  WA 98101

  
	
   

  	
  Attention:
  Carey Brennan,

  
	
   

  	
  Associate
  General Counsel

  
	
   

  	
   

  
	
   

  	
  With
  a copy to:

  
	
   

  	
   

  
	
   

  	
  Jeffrey
  R. Chanin

  
	
   

  	
  David
  J. Silbert

  
	
   

  	
  Keker
  & Van Nest, LLP

  
	
   

  	
  710
  Sansome St.

  
	
   

  	
  San
  Francisco, CA 94111

  



 


(e)  Executive’s Obligation of Confidentiality. Executive will not without the prior
written permission of CCBI or CCB, publish, disclose or make available to any
person, firm or corporation, either during or after termination of the letter
agreement, this letter agreement, the WAMU Acknowledgement or the Mutual
General Release, except as otherwise permitted under this letter agreement. In
the event Executive receives a subpoena or other legal process calling for
disclosure of this letter agreement, the WAMU Acknowledgement or the Mutual
General Release, the Executive will notify CCBI so that CCBI may contest the
legal validity of such subpoena or other legal process. If Executive is
required to disclose any portion of this letter agreement, the WAMU Acknowledgement
or the Mutual General Release, he will request the highest applicable level of
confidential treatment under applicable Protective Order or confidentiality
agreement. Notwithstanding the foregoing, the Executive may disclose this
letter agreement, the WAMU Acknowledgement, and the Mutual General Release to
Executive’s spouse, counsel, confidential advisors to Executive or Executive’s
counsel, tax accountant, and financial advisors. Executive may also make any
disclosure required by any applicable law or regulation.


 


7

















 


This letter agreement constitutes the entire
understanding and written agreement between the parties with respect to the
subject matter hereof including (except as otherwise expressly provided in this
letter agreement), the Daley Agreements. The terms of this letter agreement may
not be modified or changed except by written instrument executed by all
parties. This letter agreement may be executed in counterparts, each of which
shall constitute an original and which together shall constitute a single
instrument.


 


	
   

  	
  Sincerely,

  
	
   

  	
   

  
	
   

  	
  /s/ Donald E. Royer

  
	
   

  	
  Donald
  E. Royer

  
	
   

  	
  Executive
  Vice President & General Counsel

  
	
   

  	
   

  
	
  c:

  	
  Stephen
  H. Gordon

  	
   

  
	
   

  	
  Carey
  Brennan, Esq.

  	
   

  
	
   

  	
   

  
	
  Acceptance
  of Letter Agreement:

  
	
  This
  letter agreement dated June 22  , 2006 is accepted and agreed to by

  
	
  James
  R. Daley.

  	
   

  
	
  Dated
  June 22 , 2006

  	
   

  
	
   

  	
   

  
	
  /s/
  James R. Daley

  	
   

  	
   

  
	
  James
  R. Daley

  	
   

  
				



 


8

















 


Exhibit A


 


WASHINGTON
MUTUAL, INC.


ACKNOWLEDGEMENT


 


I.                                         Executive hereby agrees and acknowledges that
the “Maximum Closing Amount” set forth below is the maximum amount that will be
due to Executive in connection with the Closing contemplated by and defined in
that certain Agreement and Plan of Merger, dated as of April 23, 2006, among
Washington Mutual, Inc., Bruin Acquisition Inc. and Commercial Capital Bancorp,
Inc. (“CCBI”) (the “Merger Agreement”) under any employment agreement,
termination agreement, deferred compensation plan, and any bonus agreement, or
any other agreements, plans or arrangements maintained by CCBI or any of its
subsidiaries (including, without limitation, those certain employment
agreements entered into by and between Executive and each of CCBI and
Commercial Capital Bank FSB (CCB”), each dated December 19, 2005 (the “Employment
Agreements”) in any event in connection with a termination of employment
before, on or after, or otherwise in connection with or contingent upon, the
transactions contemplated under the Merger Agreement, and that Executive shall
not be entitled to receive any amount of payment that is in excess of the
amount set forth below except: (i) for the future amounts of benefits
due to the Executive after the date of Closing relating to Salary Continuation
Agreements, COBRA benefits, and Split Dollar Life Insurance benefits, the
present value of which is listed under Section II below as the “Maximum Value
Amount”; (ii) pursuant to adjustments recognized in Acknowledgements 2 and 8
below; and (iii) that the amounts set forth below do not include the payments
to which Executive is otherwise entitled to receive, pursuant to the applicable
provisions of the Merger Agreement, with respect to (x) any shares of CCBI
common stock (including, without limitation, any shares of restricted common
stock of CCBI which, by the terms of the documents pursuant to which such
shares have been granted, shall become fully vested in connection with the
transactions contemplated by the Merger Agreement) held by Executive and (y) any
options to purchase shares of common stock of CCBI which were granted under the
applicable CCBI stock incentive plans that are held by Executive and
outstanding as of the Effective Time (as such term is defined in the Merger
Agreement).


 


	
  Severance Payments
  Pursuant to Employment Agreements

  	
   

  	
  $

  	
  3,094,160

  	
   

  
	
  Excess Parachute
  Payment Excise Tax “Gross-up” Payment

  	
   

  	
  1,606,122

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Maximum
  Closing Amount:

  	
   

  	
  $

  	
  4,700,282

  	
   

  



 


II.                                     In addition to the foregoing, Executive hereby
agrees and acknowledges that the “Maximum Net Present Value Amount” set forth
below is the maximum amount of the present value, as of September 1, 2006, of
all future payments and benefits that will be due and may be paid to Executive
at a date or dates that are later than the Closing under any supplemental
executive retirement plan, bonus agreement, salary continuation agreement,
split dollar life insurance plan or agreement and any bonus agreement, or any
other agreements, plans or arrangements maintained by CCBI or any of its
subsidiaries (including, without limitation, the Employment Agreements and that
certain salary continuation agreement between Executive and CCB dated April 1,
2006 (the “Salary Continuation Agreement”)), in any event in connection with a
termination of employment before, on or after, or otherwise in connection with
or contingent upon, the transactions contemplated under the Merger Agreement.
Notwithstanding the foregoing, Executive acknowledges that Executive is not
waiving the right to receive the actual annual benefit payment, identified in
Acknowledgement (4) below, that will be due to Executive under the supplemental
executive retirement plan pursuant to Executive’s Salary Continuation Agreement
commencing on the Normal Retirement Date set forth in the Executive’s Salary
Continuation Agreement and continuing for twenty (20) years thereafter.


 


Executive further agrees and acknowledges that the Maximum Value Amount
is in addition to the amounts and benefits listed above in the determination of
the Maximum Closing Amount, and that the “Total Value” identified below
represents the sum of both such Amounts.


 


	
  Net Present
  Value of All Annual Benefits Payable Under the Supplemental Executive

  	
   

  	
   

  	
   

  
	
  Retirement Plan
  Pursuant to Salary Continuation Agreement

  	
   

  	
  $

  	
  495,774.00

  	
   

  
	
  Net Present
  Value of COBRA Benefits Payable Under Employment Agreement

  	
   

  	
  $

  	
  53,699.00

  	
   

  
	
  Value of the
  Benefit of the Vesting of Split Dollar Life Insurance Policy

  	
   

  	
  $

  	
  277,904.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Maximum
  Value Amount:

  	
   

  	
  $

  	
  827,377.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total
  Value (Maximum Closing Amount + Maximum Value Amount):

  	
   

  	
  $

  	
  5,527,659

  	
   

  



 


9

















 


In connection with all of the foregoing, Executive hereby agrees and
acknowledges each of the following:


 


(1)          The
estimate of 2006 compensation used to calculate the “Severance Payments
Pursuant to Employment Agreements” identified above, as provided for under the
Employment Agreements, was based upon an estimate of calendar year compensation
through September 1, 2006.


 


(2)          The “Severance
Payments Pursuant to Employment Agreements” identified above constitutes all
severance payments to which Executive is entitled under his or her respective
employment, salary continuation, or change in control agreements; provided,
however: that the amount of these payments shall only be adjusted solely
due to the impact of Executive’s actual 2006 compensation, as finally
determined upon the date of termination of Executive’s employment, which may
result in a corresponding change in the computed severance payments, as
provided under the Employment Agreements and set forth above, caused by (x) any
change in the closing date of the transactions contemplated under the Merger
Agreement from the assumed closing date of September 1, 2006 to the actual closing
date and/or (y) any change in the per share trading price of CCBl Common Stock
(as defined in the Merger Agreement) from the assumed per share price of $16.00
at any month end occurring prior to and through the actual closing date of the
transactions contemplated under the Merger Agreements.


 


(3)          The
amount of the “Severance Payments Pursuant to Employment Agreements” may be
reduced by the amount of CCBI-provided annual medical and life insurance
benefits included in the computation of compensation used to calculate the
severance payment set forth above.


 


(4)          Executive
is entitled to receive payment of a benefit amount equal to $70,000.00
annually, which annual benefit is payable under the supplemental executive
retirement plan pursuant to Executive’s Salary Continuation Agreement commencing
on the Normal Retirement Date set forth in the Executive’s Salary Continuation
Agreement and continuing for twenty (20) years thereafter. The “Net Present
Value of All Annual Benefits Payable under the Supplemental Executive
Retirement Plan Pursuant to Salary Continuation Agreement” amount identified
above represents the net present value of the payment of all annual benefit
payments due to Executive under the Salary Continuation Agreement, without
consideration of actuarial factors other than the discount rate used to
calculate such net present value.


 


(5)          Each
of the “Severance Payments Pursuant to Employment Agreements”, “Net Present
Value of All Annual Benefits Payable under the Supplemental Executive
Retirement Plan Pursuant to Salary Continuation Agreement”, “Net Present Value
of COBRA benefits payable Under Employment Agreement”, and “Value of Benefit of
the Vesting of Split Dollar Life Insurance Policy” amounts identified above has
been calculated for purposes of determining whether Executive will be subject
to an “excess parachute payment” excise tax under Section 4999 of the Internal Revenue
Code (the “Code”), and if so, the amount of such excise tax and the appropriate
amount of any “excess parachute payment” excise tax gross-up payment which may
become due and owing by CCBl or CCB, as applicable, under the Employment
Agreements. For purposes of determining each of the “Net Present Value of All
Annual Benefits Payable under the Supplemental Executive Retirement Plan
Pursuant to Salary Continuation Agreement” and “Net Present Value of COBRA
benefits payable Under Employment Agreement” amounts set forth above, the discount
rate used was 5.76% (which represents 120% of the Applicable Federal Rate (the “AFR”)
for long-term obligations for April 2006, which rate is required to be used
under the applicable Department of Treasury regulations).


 


(6)          The
discount rate that will be used to finally calculate the net present value of
(i) all amounts due to Executive under the Salary Continuation Agreement as of
the closing of the transactions contemplated under the Merger Agreement and
(ii) the value of the COBRA benefits to be provided under the Employment
Agreement will be 120% of the AFR for long-term obligations for the month in
which such closing occurs, such that the actual amount of the net present value
of all amounts due to Executive under the Salary Continuation Agreement and the
value of the COBRA benefits to be provided under the Employment Agreement as of
the closing of the transactions contemplated under the Merger Agreement may
differ accordingly from the amount identified above as the “Net Present Value
of All Annual Benefits Payable under the Supplemental Executive Retirement Plan
Pursuant to Salary Continuation Agreement” and the “Net Present Value of COBRA
benefits payable Under Employment Agreement”, respectively.


 


(7)          The
calculations of the components that are used to determine whether an excess
parachute payment excise tax will be imposed on Executive under Section 4999 of
the Internal Revenue Code, the amount thereof (if any), and, if any such excise
tax is determined to be so imposed, the amount of any excess parachute payment
excise tax gross-up payment which may become due and owing by CCBl or CCB, as
applicable, under the Employment Agreements, as well as the calculation of any
value prescribed as being deemed to be contingent on a change in control for purposes
of Section 280G of the Internal Revenue Code, shall in all such cases be
determined in accordance with the applicable provisions of Section 280G of the
Internal Revenue Code, and, where applicable, with the Employment Agreements
(as such agreements shall be interpreted in a manner that is consistent with
the manner in which the amount of the “Severance Payments Pursuant to Employment
Agreements” was calculated for purposes of this Acknowledgement, after applying
actual Federal and State income rates applicable to Executive on the closing of
the transactions contemplated under the Merger Agreement.


 


(8)          The
final determination of the excess parachute payment excise tax, if any, that
may be imposed under Section 4999 of the Internal Revenue Code will be based on
a thorough analysis performed by Washington Mutual’s tax and


 

















 


legal experts to comply with the governing regulations thereof, as of
the Effective Date. As such, the amount shown as the “Excess Parachute Payment
Excise Tax Gross-Up Payment” in this Acknowledgement constitutes a good faith
estimate and the actual amount thereof may differ significantly upon Washington
Mutual’s final determination of such amount.


 


(9)          The “Value
of the Benefit of the Vesting of the Split Dollar Life Insurance Policy”
identified above is a good faith estimate of the single premium cost of a new
term life insurance policy providing a life insurance benefit to Executive, as
of September 1, 2006, that is the same as the life insurance benefit to which
Executive shall, as of the closing of the transactions contemplated under the
Merger Agreement, be entitled to receive in accordance with the terms of the
Split Dollar Life Insurance Policy maintained for the benefit of Executive as
of the date hereof.


 


(10)    All payments
due to Executive are subject to withholding for applicable taxes.


 


Executive fully understands that this Acknowledgement is a legally
binding document upon Executive. 


 


Acknowledged and agreed this 22 day of June, 2006 by:


 


	
  JAMES
  R. DALEY:

  	
  /s/ James R. Daley

  	
   

  



 

















 


EXHIBIT B


 


MUTUAL GENERAL RELEASE


 


This Mutual General Release (“Release”) is
made and entered into by James R. Daley, a resident of California, (the “Executive”),
and Commercial Capital Bancorp, Inc. (the “Company”), in full and final
settlement of any and all claims that the Executive and the Company may have
against one another, except as expressly excluded herein.


 


1.                                       Consideration for Release. In return for this Release and in full and
final settlement, compromise, and release of any and all claims that the
Executive or the Company has or may have against the Released Parties (as
defined in Paragraphs 3(a) and 3(b) below), the Company shall provide the
Executive with the payments, benefits and other consideration (collectively “Severance
Benefits”) as described and in the manner specified in the Letter Agreement,
dated as of June 22, 2006, by and between the Executive and the Company (the “Letter
Agreement”), and the Executive shall provide the Company with the consideration
as described and in the manner specified in the Letter Agreement, including
without limitation executing the Washington Mutual, Inc. Acknowledgement attached
as Exhibit A to the Letter Agreement.


 


2.                                       Exclusivity of Consideration to Executive. Except for the Severance Benefits, the Executive
acknowledges and agrees that neither the Company nor any of the other Company Released
Parties shall have any further obligation to provide the Executive with
compensation or benefits under any plan, policy, agreement or arrangement of
the Company by reason of the Executive’s termination of employment or in
consideration of this Release.


 


3.                                       Mutual General Release.


 


(a)                                  The Executive hereby releases and forever
discharges the Company, its past, present and future subsidiaries, divisions,
affiliates, and its and their respective predecessors, successors and assigns,
and each of their past, present and future employees, officers, directors,
agents, insurers, employee welfare benefit plans, employee pension benefit
plans and deferred compensation plans, and their trustees, administrators and
other fiduciaries, and all persons acting by, through, under or in concert with
them, or any of them (the “Company Released Patties”), of and from any manner
of action, cause of action, in law or in equity, suit, debt, lien, contract,
agreement, promise, liability, claim, demand, damage, loss, cost or expense, of
any nature whatsoever, known or unknown, fixed or contingent arising out of or
related in any way to his employment with Commercial Capital Bank or the
Company or Executive’s acts and omissions as an officer of Commercial Capital
Bank or the Company, (hereinafter called “Claims”), which Executive now has or
may hereafter have against the Company Released Parties, or any of them, by
reason of any matter, cause or thing whatsoever from the beginning of time to
the date the Executive signs this Release. The Executive understands that this
release includes, without limitation, all Claims Executive may have:


 


•                  relating to Executive’s hire, employment,
remuneration (including salary, bonus, incentive or other compensation, stock
options, vacation, sick leave, health insurance benefits, benefits from any
employee stock ownership, stock option plans, profit-sharing and/or deferred
compensation plan) or termination of employment by the Company;


 

















 


•                  or retaliation under any law alleging
discrimination (including any Claims under Title VII of the Civil Rights Act of
1964, as amended; the Consolidated Omnibus Budget Reconciliation Act; the Age Discrimination
in Employment Act, as amended; the Employee Retirement Income Security Act, as
amended; the Americans with Disabilities Act; the Fair Labor Standards Act, as
amended the Reconstruction Era Civil Rights Act, as amended; the Rehabilitation
Act, as amended; the Family and Medical Leave Act; other applicable state or
local employment discrimination statutes; applicable wage and hour statutes; and/or
any other local, state or federal law of any type or description regarding
employment, including but not limited to any claims arising from or derivative
of the Executive’s employment with the Company, as well as any and all claims
under state contract or tort law or otherwise);


 


•                  arising under any contract, express or
implied, tortious conduct or arising under federal, state or local law.


 


In giving this release, the Executive forever
releases and gives up the Executive’s employment rights and employee status
with the Company Released Parties and each of them, except as otherwise
provided in the Letter Agreement.


 


(b)                                 The Company, on behalf of itself and each of
the Company Released Parties, hereby releases and forever discharges Executive,
his past, present and future successors, heirs, assigns, agents,
representatives, insurers, and attorneys (the “Executive Released Parties”), of
and from any manner of action, cause of action, in law or in equity, suit,
debt, lien, contract, agreement, promise, liability, claim, demand, damage,
loss, cost or expense, of any nature whatsoever, known or unknown, fixed or
contingent arising out of or related in any way to his employment with
Commercial Capital Bank or the Company or Executive’s acts and omissions as an officer
of Commercial Capital Bank or the Company, (hereinafter called “Claims”), which
the Company now has or may hereafter have against the Executive Released
Parties, or any of them, by reason of any matter, cause or thing whatsoever
from the beginning of time to the date the Company signs this Release. The
Company understands that this release includes, without limitation, all Claims
the Company may have:


 


•                  relating in any way to the subject matter of
the case captioned Comerica Bank, et al. v.
Commercial Capital Bancorp, Inc., et al., Case No. CGC-05-443546
(San Francisco Superior Court); and


 


•                  arising under any contract, express or
implied, for any tortious conduct, or arising under federal, state or local
law.


 


(c)                                  IN ACCORDANCE WITH THE OLDER WORKERS BENEFIT PROTECTION
ACT OF 1990, THE EXECUTIVE IS AWARE OF THE FOLLOWING WITH RESPECT TO HIS
RELEASE OF ANY CLAIMS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT (“ADEA”):


 


(1)                                  EXECUTIVE HAS BEEN ADVISED THAT EXECUTIVE HAS
THE RIGHT TO CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS RELEASE;


 

















 


(2)                                  EXECUTIVE HAS REVIEWED THE ATTACHED LISTING
OF THE AGES AND JOB TITLES OF ALL PERSONS, IN HIS/HER DEC1SIONAL UNIT, WHO ARE AND
ARE NOT INCLUDED IN THIS REDUCTION PROGRAM.


 


(3)                                  SOME OF THE CONSIDERATION EXECUTIVE IS
RECEIVING FOR THIS RELEASE IS IN ADDITION TO ANYTHING OF VALUE TO WHICH
EXECUTIVE IS OTHERWISE ENTITLED TO RECEIVE.


 


(4)                                  EXECUTIVE HAS BEEN ADVISED THAT EXECUTIVE HAS
AT LEAST FORTY-FIVE (45) DAYS TO CONSIDER THIS RELEASE;


 


(5)                                  EXECUTIVE HAS SEVEN (7) DAYS AFTER SIGNING
THIS AGREEMENT TO REVOKE THIS AGREEMENT, AND THIS AGREEMENT WILL NOT BE EFFECTIVE
UNTIL THE EIGHTH DAY FOLLOWING EXECUTIVE’S SIGNING THIS RELEASE.


 


(d)                                 Executive and the Company each represent and
warrant that they have not assigned or transferred to any third party any
interest in any Claim which they may have against the Company Released Parties
and Executive Released Parties respectively, or any of them, and Executive and
the Company agree to indemnify and hold the Company Released Parties and Executive
Released Parties, respectively, and each of them, harmless from any liability,
claims, demands, damages, costs, expenses and attorneys’ fees incurred by them,
or any of them, as a result of any such assignment or transfer, It is the intention
of the parties that this indemnity does not require payment as a condition
precedent to recovery by the Company Released Parties against Executive, or the
Executive Released Parties against the Company, under this indemnity.


 


(e)                                  Executive and the Company represent and
warrant that they have not asserted, filed or otherwise taken actions to
initiate any Claim in any federal, state or local court, administrative agency
or other forum against the Company Released Parties and Executive Released
Parties respectively.


 


4.                                       Exceptions to General Release. Notwithstanding the foregoing, nothing
herein shall be deemed to
constitute a release on behalf of the Company Released Parties or any of its
affiliates with respect to any Claims arising out of the following: (i) The
Company’s obligation to pay benefits under the Company’s Supplemental Executive
Retirement Plan (as set forth in Executive’s Salary Continuation Agreement with
Commercial Capital Bank dated April 1, 2006, entered into pursuant to that
plan); (ii) the Company’s obligation to provide the continued life, medical,
dental and disability coverage promised pursuant to Section 13(d) of Executive’s
Amended and Restated Employment Agreement with Commercial Capital Bancorp, Inc.
dated December 19, 2005; (iii) the Company’s obligation to provide excise tax
gross-up payments pursuant to Section 14 of Executive’s Amended and Restated
Employment Agreement with Commercial Capital Bancorp, Inc. dated December 19,
2005, but only in so far as such obligations relate to the transaction
contemplated by the Agreement and Plan of Merger by and among Washington
Mutual, Inc., the Company and Bruin Acquisition Inc. dated April 23, 2006; (iv)
payments Executive is otherwise entitled to receive pursuant to the Agreement
and Plan of Merger by and among Washington Mutual, Inc., the Company and Bruin
Acquisition Inc. dated April 23, 2006 in respect of shares of Company common
stock or options to purchase shares of common stock of the Company; and (v) the
Company’s obligations under its split dollar agreement with the Executive; provided
that the Company Released Parties shall be released from all Claims regarding,
and have no obligation to make, payments or confer benefits in connection with
the fulfillment of aggregate obligations described in (i), (ii) and (v),
immediately above, in 


 

















 


excess of payments and benefits having an aggregate present value as
measured on September 1, 2006 of $827,377.00.


 


5.                                       Enforcement of Release. If any party to this Release brings an
action to enforce his, her or its rights hereunder, the prevailing party shall
be entitled to recover his, her or its costs and expenses, including court
costs and attorneys’ fees, if any, incurred in connection with such suit to the
extent permitted by applicable law.


 


6.                                       Construction of Release. This Release shall be construed as a whole
in accordance with its fair meaning and in accordance with the laws of the
State of California. The headings used herein are for reference only and shall
not affect the construction of this Release.


 


7.                                       Assumption of Risk. The Executive and the Company fully
understand that if any fact with respect to any matter covered by this
Agreement is found hereafter to be other than, or different from, the facts now
believed to be true, they expressly accept and assume the risk of such possible
difference in fact and agree that the release provisions hereof shall be and
remain effective notwithstanding any such difference in fact.


 


8.                                       Waiver of Statutory Rights. Executive and the Company waive any right
they may have under California Civil Code section 1542, as well as under any
other state or federal statute or common law principle of similar effect.
California Civil Code section 1542 provides:


 


“A general release does not extend to claims
which the creditor does not know or suspect to exist in his favor at the time
of executing the release, which if known by him must have materially affected
his settlement with debtor.”


 


Executive and the Company acknowledge that
they may later discover facts different from or in addition to those which they
or their attorneys now know or believe to be true with respect to the Daley
Agreements or other matters covered by this Release. It is the intention of
Executive and the Company to fully, finally and forever settle and release all
claims and differences relating to the Daley Agreements and other matters
covered by this Release, except as set forth herein and in the Letter
Agreement.


 


9.                                       Amendment to Release. Any Amendment to this Release must be in a
writing signed by duly authorized representatives of the Executive and the
Company Released Parties and stating the intent of the parties to amend this
General Release.


 


YOU ARE HEREBY ADVISED BY COMMERCIAL CAPITAL
BANCORP, INC. TO CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS GENERAL RELEASE.
PLEASE READ THIS DOCUMENT CAREFULLY BEFORE SIGNING IT. THIS IS A LEGAL DOCUMENT
AND SIGNING IT WILL HAVE LEGAL CONSEQUENCES.


 


UPON SIGNING THIS RELEASE, RETURN IT TO THE
REPRESENTATIVE OF COMMERCIAL CAPITAL BANCORP, INC. SPECIFIED BELOW. IF YOU
CHOOSE TO REVOKE IT, YOU MUST NOTIFY THIS REPRESENTATIVE IN WRITING WITHIN
SEVEN (7) DAYS AFTER SIGNING THIS RELEASE.


 

















 


EXECUTIVE AND THE COMPANY REPRESENT AND
ACKNOWLEDGE THAT NO REPRESENTATION, STATEMENT, PROMISE, INDUCEMENT, THREAT OR SUGGESTION
HAS BEEN MADE BY ANY OF THE RELEASED PARTIES OR BY ANY OTHER INDIVIDUAL TO
INFLUENCE THEM TO SIGN THIS RELEASE EXCEPT STATEMENTS AS-ARE EXPRESSLY SET
FORTH HEREIN.


 


	
  EXECUTIVE:

  	
  /s/ James R. Daley

  	
   

  
	
   

  
	
  Date:

  	
  June 22, 2006

  	
   

  
	
   

  
					



 


Commercial Capital Bancorp, Inc.


 


 


	
  /s/ Donald E. Royer 

  	
   

  
	
  By:

  
	
  Its
  authorized representative

  



 


Representatives of Commercial Capital Bancorp, Inc. 


authorized to receive correspondence under this Release:


 


If to Commercial Capital Bancorp, Inc.:


Commercial Capital Bancorp, Inc.


8105 Irvine Center Drive, Suite 1500


Irvine CA 92618


Attention: Donald E. Royer


Executive Vice President, General Counsel


 


If to WAMU: 


Washington Mutual, Inc. 1201 


Third Avenue-WMT1501 


Seattle, WA 98101 


Attention: Carey Brennan, 


Associate General Counsel


 


Copy To:


 


Andrea K. Wahlquist, Esq.


Simpson Thacher & Bartlett LLP


425 Lexington Avenue


New York, New York 10017


Facsimile: (212) 455-2502


 


 


 

















 


	
  

  	
  COMMERCIAL
  CAPITAL BANK

  	
   

  



 


Exhibit C


 


December 15, 2005


 


RE:          Comerica
Bank V. Commercial Capital Bancorp, Inc., et al.

San Francisco County Superior Court Case No. CGC-05-4543546

Reservation of Rights Regarding Indemnification


 


Dear Mr. Daley:


 


This letter is to confirm that Commercial Capital Bank (“CCB”) has agreed,
based on the facts as it now understands them, to defend and indemnify you for
any defense costs and liability arising out of the above-entitled action (the
“Action”) subject to the provisions of this letter, including the reservation
of rights set forth below and, further, to provide counsel to bring a
cross-complaint or appropriate action against Comerica Bank for certain claims
you may have as an individual against Comerica. This letter is also to confirm
that CCB has retained the law firm of Weintraub Genshlea Chediak Law
Corporation (“WGC”) to represent James Daley(1),  Mercedes Apodaca, Phyllis Barr, Amy Chang,
Teresa Chavez, James Cooper, Linda Doll, Cynthia Graves, Daniel Harris, Thomas
Holder, Jennifer Huynh, Wendie Lewin, Fernando Loza, Richard Lundin, Kathleen
Nanez, Lynda Perez, Joann Quirong, Laurie Sams, Janet Stiles, Ida Tam, Aubrey
Walden, and Kenneth Wu, CCB and you in this matter(2).  (These individuals and CCB are referred to
collectively herein as the “Clients”.)


 


Plaintiff’s claims against you, CCB, the other individual defendants
named above and certain other persons arise out of events related to (1) your
seeking and preparing for employment with CCB (“Pre-Employment Events”); and
(2) your conduct after you commenced your employment with CCB (“Events during
Employment”). CCB has agreed to defend, indemnify and prosecute your interests
in the Action with respect to both Pre-Employment Events and Events During
Employment, subject to the provisions of this letter including the express
reservation of rights below. This means that CCB will pay the attorney’s fees
and costs incurred by WGC relating to your defense and cross-claims (if any) in
the Action. Although CCB will be paying such legal fees, WGC will represent
your interests and the interests of the other clients equally as long as an
actual


 






(1) Weintraub Genshlea Chediak has been asked to represent Mr. James
Daley only with reegard to bringing a cross-complaint against Comerica Bank on
his behalf.


(2) Weintraub Genshlea Chediak may be asked at a later date to
represent Ms. Allison Hamasu with regard to filing a cross-complaint against
Comerica Bank.


 

















 


conflict of interest does not arise. As stated in WGC’s Consent to Joint
Representation letter (“Consent”) being sent to all Clients, if an actual
conflict of interest does arise, WGC will advise all Clients and appropriate
action will be taken at that time to determine whether it is possible to
continue to represent some or all of the Clients, perhaps requiring additional
written waivers.


 


CCB has submitted claims to various insurance carriers relating to the
Action, and, in connection with such claims, may require your assistance and/or
cooperation with satisfying the requests or requirements of such insurance
carriers. CCB’s indemnification of you relating to the Action as described
herein is conditioned upon your providing such assistance and/or cooperation.


 


CCB’s agreement to defend and indemnify you and to prosecute certain
cross-claims on your behalf is also conditioned upon your continued truthful
cooperation with CCB in matters relating to the Action, and is limited to the
claims and/or facts for relief presently pled against you in the Action. If
additional claims and/or facts are hereafter pled against you in the Action,
CCB will reassess whether it will provide indemnification for defense and/or
liability for such claims and/or facts.


 


CCB’s indemnification of you is subject to the following Reservation
of Rights: In the event you are found liable for damages in the Action
based upon conduct or omissions (1) with respect to Pre-Employment Events, that
were not reasonably necessary to legally and non-tortuously seek and prepare
for employment with CCB; or (2) with respect to Events During Employment that
occurred outside the course and scope of your employment with CCB; or (3) occurring
at any time events based upon facts not presently known by CCB, CCB reserves
the right to deny you indemnity for such liability. At present, the facts as
CCB knows them suggest that all of your conduct alleged in the Action appears
to have occurred outside of the reservations expressed in (1) and (2), and thus
it appears unlikely that CCB will have cause to exercise its reserved rights.
Nevertheless, you should be aware of the possibility that, if facts show
otherwise, CCB has reserved the right to withdraw the indemnification for
liability herein, in whole or in part.


 


2

















 


CCB will you in writing in the event that CCB’s understanding of the
scope of this indemnity changes during the course of the Action. Please feel free
to consult with an attorney of your choice, at your own cost, concerning your
rights of indemnity or any other issue relating to the Action.


 


Please also feel free to contact me if you have any comments or
questions.


 


	
  Very truly yours,

  
	
   

  
	
  /s/ Richard A. Sanchez

  	
   

  
	
  Richard A. Sanchez

  
	
  Chief Administrative Officer

  



 


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