GOVERNING THE EXCHANGE OF, PURCHASE AND SALE
OF, OR INDENTURES FOR, SECURITIES), SUITS, CAUSES OF ACTION, AND ANY OTHER RIGHT
OF TABERNA AGAINST ANY ATTORNEY, ACCOUNTANT, FINANCIAL ADVISOR, OR OTHER ENTITY
ARISING UNDER OR IN CONNECTION WITH THE ORIGINAL PREFERRED SECURITIES, THE
EXISTING INDENTURES, THE TRUST AGREEMENTS OR THE TRANSACTIONS RELATED THERETO OR
CONTEMPLATED THEREBY;
(IV)
ALL GUARANTEES AND ALL COLLATERAL AND SECURITY OF ANY KIND FOR OR
IN RESPECT OF THE FOREGOING;
(V)
ALL CASH, SECURITIES, OR OTHER PROPERTY, AND ALL SETOFFS AND
RECOUPMENTS, TO BE RECEIVED, APPLIED, OR EFFECTED BY OR FOR THE ACCOUNT OF
TABERNA UNDER THE ORIGINAL PREFERRED SECURITIES, OTHER THAN FEES, COSTS AND
EXPENSES PAYABLE TO TABERNA HEREUNDER AND ALL CASH, SECURITIES, INTEREST,
DIVIDENDS, AND OTHER PROPERTY THAT MAY BE EXCHANGED FOR, OR DISTRIBUTED OR
COLLECTED WITH RESPECT TO, ANY OF THE FOREGOING; AND
(VI)
ALL PROCEEDS OF THE FOREGOING.
"Trust I" has the meaning set forth in the Recitals.
"Trust II" has the meaning set forth in the Recitals.
"Trust III" has the meaning set forth in the Recitals.
"Trust I Preferred Securities" has the meaning set forth in the Recitals.
6
"Trust II Preferred Securities" has the meaning set forth in the Recitals.
"Trust III Preferred Securities" has the meaning set forth in the Recitals.
"Trust Agreements" has the meaning set forth in the Recitals.
2.
Exchange of Original Preferred
Securities for Securities.
(A)
THE COMPANY AGREES TO ISSUE THE SECURITIES IN ACCORDANCE WITH THE
NEW INDENTURE AND HAS REQUESTED THAT TABERNA ACCEPT SUCH SECURITIES IN EXCHANGE
FOR THE ORIGINAL PREFERRED SECURITIES, AND TABERNA HEREBY ACCEPTS SUCH
SECURITIES IN EXCHANGE FOR THE ORIGINAL PREFERRED SECURITIES UPON THE TERMS AND
CONDITIONS SET FORTH HEREIN.
(B)
THE CLOSING OF THE EXCHANGE CONTEMPLATED HEREIN SHALL OCCUR AT THE
OFFICES OF NIXON PEABODY, LLP IN NEW YORK, NEW YORK (THE "CLOSING ROOM"), OR
SUCH OTHER PLACE AS THE PARTIES HERETO AND BNYM SHALL AGREE, AT 11:00 A.M. NEW
YORK TIME, ON JANUARY 30, 2009 OR SUCH LATER DATE AS THE PARTIES MAY AGREE (SUCH
DATE AND TIME OF DELIVERY THE "CLOSING DATE"). THE COMPANY AND TABERNA HEREBY
AGREE THAT THE EXCHANGE (THE "EXCHANGE") WILL OCCUR IN ACCORDANCE WITH THE
FOLLOWING REQUIREMENTS:
(I)
TABERNA CAPITAL MANAGEMENT, LLC (AS COLLATERAL MANAGER FOR EACH
OF THE TABERNA ENTITIES) SHALL HAVE DELIVERED AN ISSUER ORDER INSTRUCTING EACH
TRUSTEE (IN EACH SUCH CAPACITY, A "CDO TRUSTEE") UNDER THE APPLICABLE INDENTURE
PURSUANT TO WHICH SUCH CDO TRUSTEE SERVES AS TRUSTEE FOR THE HOLDERS OF THE
ORIGINAL PREFERRED SECURITIES TO EXCHANGE THE ORIGINAL PREFERRED SECURITIES FOR
THE SECURITIES AND TO DELIVER THE ORIGINAL PREFERRED SECURITIES TO THE PROPERTY
TRUSTEE FOR CANCELLATION AND REISSUANCE IN THE NAME OF THE COMPANY.
(II)
THE ORIGINAL PREFERRED SECURITIES AND THE SECURITIES SHALL HAVE
BEEN DELIVERED TO THE CLOSING ROOM, COPIES OF WHICH ORIGINAL PREFERRED
SECURITIES AND SECURITIES SHALL HAVE PREVIOUSLY BEEN MADE AVAILABLE FOR
INSPECTION, IF SO REQUESTED.
(III)
COMPANY SHALL HAVE DIRECTED THE NEW INDENTURE TRUSTEE TO
AUTHENTICATE THE SECURITIES AND DELIVER THEM TO THE APPLICABLE