CDO TRUSTEE, AS
FOLLOWS: (I) NOTE 1 TO TABERNA II, (II) NOTE 2 TO TABERNA III, (III) NOTE 3 TO
TABERNA IV, (IV) NOTE 4 TO TABERNA V, (V) NOTE 5 TO TABERNA VII AND (VI) NOTE 6
TO TABERNA VIII.
(IV)
NEW INDENTURE TRUSTEE SHALL HAVE AUTHENTICATED THE SECURITIES IN
ACCORDANCE WITH THE TERMS OF THE NEW INDENTURE AND DELIVERED THEM AS PROVIDED
ABOVE.
(V)
PROPERTY TRUSTEE, ON BEHALF OF EACH OF THE TRUSTS, SHALL HAVE
OBTAINED THE ORIGINAL PREFERRED SECURITIES AND SHALL PROMPTLY THEREAFTER, IF
REQUESTED BY THE COMPANY, CANCEL AND REISSUE THEM IN THE NAME OF THE COMPANY.
(VI)
SIMULTANEOUSLY WITH THE OCCURRENCE OF THE EVENTS DESCRIBED IN
SUBSECTIONS (IV) AND (V) HEREOF, (A) EACH TABERNA ENTITY HOLDING THE APPLICABLE
ORIGINAL PREFERRED SECURITIES IRREVOCABLY TRANSFERS, ASSIGNS, GRANTS AND CONVEYS
THE RELATED TABERNA TRANSFERRED RIGHTS TO THE COMPANY AND THE COMPANY ASSUMES
ALL RIGHTS AND OBLIGATIONS
7
OF TABERNA WITH RESPECT TO THE ORIGINAL PREFERRED SECURITIES AND THE TABERNA
TRANSFERRED RIGHTS AND (B) EACH HOLDER SHALL BE ENTITLED TO ALL OF THE RIGHTS,
TITLE AND INTEREST OF A HOLDER OF THE SECURITIES UNDER THE TERMS OF THE
SECURITIES, THE NEW INDENTURE AND ANY OTHER OPERATIVE DOCUMENTS.
(VII)
THE COMPANY SHALL HAVE PAID TO THE BNYM ALL OF SUCH PARTY'S LEGAL
FEES, COSTS AND OTHER EXPENSES IN CONNECTION WITH THE EXCHANGE, AS WELL AS ALL
OTHER ACCRUED AND UNPAID FEES, COSTS AND EXPENSES UNDER THE EXISTING INDENTURES
AND THE TRUST AGREEMENTS, IF ANY.
(VIII)
THE COMPANY SHALL HAVE PAID TO THE TRUSTEE, FOR APPLICATIONS UPON
THE ORIGINAL PREFERRED SECURITIES AND FOR DISTRIBUTION TO THE APPLICABLE TABERNA
ENTITIES HOLDING SUCH ORIGINAL PREFERRED SECURITIES PURSUANT TO THE TERMS OF THE
EXISTING INDENTURES, ALL ACCRUED INTEREST FOR THE PERIOD COMMENCING ON THE MOST
RECENT INTEREST PAYMENT DATE UNDER THE ORIGINAL PREFERRED SECURITIES AND
CONTINUING THROUGH AND INCLUDING JANUARY 29, 2009, PROVIDED, THAT THE COMPANY
AND TABERNA AGREE THAT THE AMOUNT OF INTEREST PAYABLE FOR SUCH PERIOD WITH
RESPECT TO THE ORIGINAL PREFERRED SECURITIES SHALL BE BASED UPON AN INTEREST
RATE OF ONE HALF OF ONE PERCENT (0.5%) PER ANNUM.
3.
Conditions Precedent.
The obligations of the parties under this
Agreement are subject to the following conditions precedent:
(A)
THE REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN SHALL BE
ACCURATE AS OF THE DATE OF DELIVERY OF THE SECURITIES.
(B)
CLIFFORD CHANCE US LLP, COUNSEL FOR THE COMPANY (THE "COMPANY
COUNSEL"), SHALL HAVE DELIVERED AN OPINION, DATED THE CLOSING DATE, ADDRESSED TO
EACH HOLDER AND ITS SUCCESSORS AND ASSIGNS AND TO THE NEW INDENTURE TRUSTEE, IN
SUBSTANTIALLY THE FORM SET OUT IN ANNEX A-1 HERETO AND THE COMPANY SHALL HAVE
FURNISHED TO THE HOLDERS OF THE SECURITIES A CERTIFICATE SIGNED BY THE COMPANY'S
CHIEF EXECUTIVE OFFICER, PRESIDENT, AN EXECUTIVE VICE PRESIDENT, CHIEF FINANCIAL
OFFICER, TREASURER OR ASSISTANT TREASURER, DATED THE CLOSING DATE, ADDRESSED TO
THE HOLDERS OF THE SECURITIES , IN SUBSTANTIALLY THE FORM SET OUT IN ANNEX D
HERETO.
IN RENDERING ITS OPINION, THE COMPANY COUNSEL MAY RELY AS TO FACTUAL
MATTERS UPON