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 AUGUST 3, 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 CDO TRUSTEE, AS FOLLOWS: (I) NOTE 1 TO TABERNA III, (II) NOTE 2 TO
TABERNA IV, AND (III) NOTE 3 TO TABERNA VI.
(IV)
NEW INDENTURE TRUSTEE SHALL HAVE AUTHENTICATED
THE SECURITIES IN ACCORDANCE WITH THE TERMS OF THE NEW INDENTURE AND DELIVERED
THEM AS PROVIDED ABOVE.
6
(V)
BNYM, 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)
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 INDENTURE AND THE TRUST AGREEMENT, IF ANY.
(VII)
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 INDENTURE, ALL ACCRUED INTEREST FOR THE PERIOD
COMMENCING ON THE MOST RECENT INTEREST PAYMENT DATE UNDER THE ORIGINAL PREFERRED
SECURITIES AND CONTINUING THROUGH AND INCLUDING JULY 30, 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 PERCENT (1.0%) PER ANNUM.
(VIII)
UPON THE OCCURRENCE OF THE EVENTS DESCRIBED IN
SUBSECTIONS (I) THROUGH (VII) ABOVE AND ALL OF THE CONDITIONS PRECEDENT SET
FORTH IN SECTION 3, TABERNA SHALL CONSUMMATE THE EXCHANGE AND (A) EACH TABERNA
ENTITY