"Repayment Event" has the meaning set forth in Section 4(o).
"Rule 144A(d)(3)" has the meaning set forth in Section 4(j).
"Securities" has the meaning set forth in the Recitals.
"Securities Act" means the Securities Act of 1933, 15 U.S.C. §§77a et seq., as
amended, and the rules and regulations promulgated under it.
"Subsidiary" means any Person wherein at least fifty percent (50%) of the Equity
Interests is owned, directly or indirectly, by the Guarantor.
"Subsidiaries"
means, collectively, each and every Subsidiary.
"Subordinated Note II" has the meaning set forth in the Recitals.
"Taberna" has the meaning set forth in the introductory paragraph hereof.
"Taberna III" has the meaning set forth in the introductory paragraph hereof.
"Taberna IV" has the meaning set forth in the introductory paragraph hereof.
"Taberna VI" has the meaning set forth in the introductory paragraph hereof.
"Taberna Capital Management, LLC" means Taberna Capital Management, LLC and its
successors and/or assigns as collateral manager of the Holders, as applicable.
"Taberna Transferred Rights" means any and all of Taberna's right, title, and
interest in, to and under the Original Preferred Securities, together with the
following:
(I)
THE EXISTING INDENTURE AND THE ORIGINAL
PARENT GUARANTEE;
(II)
ALL AMOUNTS PAYABLE TO TABERNA UNDER THE
ORIGINAL PREFERRED SECURITIES, AND THE EXISTING INDENTURE;
(III)
ALL CLAIMS (INCLUDING "CLAIMS" AS DEFINED IN
BANKRUPTCY CODE §101(5)), SUITS, CAUSES OF ACTION, AND ANY OTHER RIGHT OF
TABERNA, WHETHER KNOWN OR UNKNOWN, AGAINST THE COMPANY OR ANY OF ITS AFFILIATES
(INCLUDING THE TRUSTS), AGENTS, REPRESENTATIVES, CONTRACTORS, ADVISORS, OR ANY
OTHER ENTITY THAT IN ANY WAY IS BASED UPON, ARISES OUT OF OR IS RELATED TO ANY
OF THE FOREGOING, INCLUDING ALL CLAIMS (INCLUDING CONTRACT CLAIMS, TORT CLAIMS,
MALPRACTICE CLAIMS, AND CLAIMS UNDER ANY LAW 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 INDENTURE 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;
5
(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 (INCLUDING THAT
CERTAIN LETTER OF CREDIT DATED AS OF AUGUST 17, 2007 RELATED THERETO), 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 II" has the meaning set forth in the Recitals.
"Trust Agreement" 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