LLP, MARYLAND COUNSEL FOR THE COMPANY ("COMPANY MARYLAND
COUNSEL" AND TOGETHER WITH COMPANY COUNSEL, THE "COMPANY COUNSELS"), SHALL HAVE
DELIVERED AN OPINION, DATED THE CLOSING DATE, ADDRESSED TO TABERNA, IN
SUBSTANTIALLY THE FORM SET FORTH IN EXHIBIT B-2 HERETO.
IN RENDERING ITS
OPINION, THE COMPANY COUNSELS MAY RELY AS TO FACTUAL MATTERS UPON CERTIFICATES
OR OTHER DOCUMENTS FURNISHED BY OFFICERS, DIRECTORS AND TRUSTEES OF THE COMPANY
AND BY GOVERNMENT OFFICIALS; PROVIDED, HOWEVER, THAT COPIES OF ANY SUCH
CERTIFICATES OR DOCUMENTS ARE DELIVERED TO TABERNA) AND BY AND UPON SUCH OTHER
DOCUMENTS AS SUCH COUNSEL MAY, IN THEIR REASONABLE OPINION, DEEM APPROPRIATE AS
A BASIS FOR THE COMPANY COUNSELS' OPINION.
THE COMPANY COUNSELS MAY SPECIFY THE
JURISDICTIONS IN WHICH THEY ARE ADMITTED TO PRACTICE AND THAT THEY ARE NOT
ADMITTED TO PRACTICE IN ANY OTHER JURISDICTION AND ARE NOT EXPERTS IN THE LAW OF
ANY OTHER JURISDICTION.
(C)
ON THE CLOSING DATE, THE PARTIES TO THIS EXCHANGE AGREEMENT SHALL
HAVE EXECUTED AND DELIVERED THE OPERATIVE DOCUMENTS TO THE OTHER PARTIES THERETO
AND IN FORM AND SUBSTANCE ACCEPTABLE TO TABERNA AND THE COMPANY (ACCEPTANCE OF
SUCH FORM AND SUBSTANCE TO BE EVIDENCED BY TABERNA'S OR THE COMPANY'S EXECUTION
AND DELIVERY THEREOF).
(D)
PRIOR TO THE CLOSING DATE, THE COMPANY SHALL HAVE FURNISHED TO
TABERNA AND ITS COUNSEL SUCH FURTHER INFORMATION, CERTIFICATES AND DOCUMENTS AS
TABERNA OR SUCH COUNSEL MAY REASONABLY REQUEST.
(E)
THE COMPANY SHALL HAVE PAID ALL REASONABLE ACCRUED AND UNPAID
FEES, COSTS AND EXPENSES THEN DUE UNDER THE INDENTURE AND THE TRUST AGREEMENT,
IF ANY.
(F)
TABERNA SHALL BE RESPONSIBLE FOR ALL COSTS AND EXPENSES IN
CONNECTION WITH ANY TITLE UPDATES OR ENDORSEMENTS WITH REGARD TO THE REPLACEMENT
COLLATERAL, WHICH COSTS AND EXPENSES SHALL BE PAID BY THE COMPANY ON BEHALF OF
TABERNA AND SHALL BE DEDUCTED FROM THE COMPANY'S PAYMENT TO TABERNA AS DESCRIBED
IN SECTION 2(C) ABOVE.
(g)
Taberna shall be responsible for all costs and expenses in
connection with confirming the status of its designee as a "Qualified
Transferee," as defined in each "Intercreditor Agreement," as defined in each of
the Walgreen's Mezz Loan Assignment Documents.
If any of the conditions specified in (a) (with respect to the Company), (b),
(c) (with respect to the Company), (d) or (e) of this Section 3 shall not have
been fulfilled when and as
7
provided in this Agreement, or if any of the opinions, certificates and
documents mentioned above or elsewhere in this Agreement shall not be reasonably
satisfactory in form and substance to Taberna or its counsel, this Agreement and
any obligations of Taberna hereunder, whether as holder of the Preferred
Securities or as prospective holder of the Replacement Collateral, may be
canceled at, or at any time prior to, the Closing Date by Taberna.
If any of
the conditions specified in (a) (with respect to Taberna), (c) (with respect to
Taberna) or (f) of this Section 3 shall not have been fulfilled when and as
provided in this Agreement or if any of the documents mentioned