EXCHANGE AGREEMENT

Exhibit 10.36

EXECUTION VERSION

EXCHANGE AGREEMENT

among

ARBOR REALTY TRUST, INC.,

ARBOR REALTY SR, INC.

and

TABERNA PREFERRED FUNDING I, LTD.,

TABERNA PREFERRED FUNDING II, LTD.,

TABERNA PREFERRED FUNDING III, LTD.,

TABERNA PREFERRED FUNDING IV, LTD.,

TABERNA PREFERRED FUNDING V, LTD.,

TABERNA PREFERRED FUNDING VII, LTD.,

and

TABERNA PREFERRED FUNDING VIII, LTD.

Dated as of May 6, 2009

EXECUTION COPY

EXCHANGE AGREEMENT

     THIS EXCHANGE AGREEMENT, dated as of May 6, 2009 (this “ Agreement ”), is entered into by and among ARBOR REALTY SR, INC., a Maryland corporation (the “ Company ”), ARBOR REALTY TRUST, INC., a Maryland corporation (the “ Guarantor ”), and TABERNA PREFERRED FUNDING I, LTD. (“ Taberna I ”), TABERNA PREFERRED FUNDING II, LTD. (“ Taberna II ”), TABERNA PREFERRED FUNDING III, LTD. (“ Taberna III ”), TABERNA PREFERRED FUNDING IV, LTD. (“ Taberna IV ”), TABERNA PREFERRED FUNDING V, LTD. (“ Taberna V ”), TABERNA PREFERRED FUNDING VII, LTD. (“ Taberna VII ”) and TABERNA PREFERRED FUNDING VIII, LTD. (“ Taberna VIII ”, together with Taberna I, Taberna II, Taberna III, Taberna IV, Taberna V and Taberna VII, collectively, “ Taberna ”)

RECITAL:

     A. Reference is made to (i) that certain Junior Subordinated Indenture dated as of March 15, 2005 (the “ March Indenture ”); (ii) that certain Junior Subordinated Indenture dated as of April 1, 2005 (as amended, the “ April Indenture ”); (iii) that certain Junior Subordinated Indenture dated as of December 8, 2005 (the “ December Indenture ”); (iv) that certain Junior Subordinated Indenture dated as of May 16, 2006 (the “ May Indenture ”); each by and between the Company and The Bank of New York Mellon Trust Company, National Association (“ BNYM ”) (as successor to JPMorgan Chase Bank, National Association,) as trustee and (v) that certain Junior Subordinated Indenture dated as of June 30, 2005 (the “ June Indenture ”) by and between the Company and Wells Fargo Bank, National Association, as trustee (“ Wells ”); together with BNYM, the “ Existing Indenture Trustee ”).

     B. Reference is made to (i) that certain Amended and Restated Trust Agreement dated as of March 15, 2005 (the “ March Trust Agreement ”); (ii) that certain Amended and Restated Trust Agreement dated as of April 1, 2005 (the “ April Trust Agreement ”); (iii) that certain Amended and Restated Trust Agreement dated as of December 8, 2005 (the “ December Trust Agreement ”); (iv) that certain Amended and Restated Trust Agreement dated as of May 16, 2006 (the “ May Trust Agreement ”); each by and among the Company, as depositor, BNYM (successor to JPMorgan Chase Bank, National Association, as property trustee) (the “ BNYM Property Trustee ”), BNY Mellon Trust of Delaware (as successor to Chase Bank USA, National Association, as Delaware trustee) (the “ BNYM Delaware Trustee ”), and the respective administrative trustees named therein; and (v) that certain Amended and Restated Trust Agreement dated as of June 30, 2005 (the “ June Trust Agreement ”) by and among the Company, as depositor, Wells Fargo Delaware Trust Company, as Delaware trustee (the “ Wells Property Trustee, ” together with the BNYM Property Trustee, the “ Property Trustees ”), Wells and the respective administrative trustees named therein.

     C. Arbor Capital Trust I (“ Trust I ”) is the holder of the Junior Subordinated Note due 2034 in the original principal amount of $27,070,000 issued by the Company pursuant to the March Indenture (“ Subordinated Note I ”).

     D. Arbor Capital Trust II (“ Trust II ”) is the holder of the Junior Subordinated Note due 2034 in the original principal amount of $25,780,000 issued by the Company pursuant to the April Indenture (“ Subordinated Note II ”).

     E. Arbor Capital Trust IV (“ Trust IV ”) is the holder of the Junior Subordinated Note due 2035 in the original principal amount of $25,774,000 issued by the Company pursuant to the June Indenture (“ Subordinated Note IV ”).

     F. Arbor Capital Trust V (“ Trust V ”) is the holder of the Junior Subordinated Note due 2036 in the original principal amount of $51,550,000 issued by the Company pursuant to the December Indenture (“ Subordinated Note V ”).

     G. Arbor Capital Trust VI (“ Trust VI ”) is the holder of the Junior Subordinated Note due 2036 in the original principal amount of $51,550,000 issued by the Company pursuant to the January Indenture (“ Subordinated Note VI, ” together with Subordinated Note I, Subordinated Note II, Subordinated Note IV, and Subordinated Note V, the “ Existing Subordinated Notes ”).

     F. Taberna I is the holder of Preferred Securities in the original aggregate principal amount of $26,250,000 issued by Trust I pursuant to the March Trust Agreement, copies of which are attached hereto as Exhibit A-1 (the “ Trust I Preferred Securities ”).

     G. Taberna II is the holder of Preferred Securities in the original aggregate principal amount of $25,000,000 issued by Trust II pursuant to the April Trust Agreement, copies of which are attached hereto as Exhibit A-2 (the “ Trust II Preferred Securities ”).

     H. Taberna III, Taberna IV and Taberna VIII are the holders of Preferred Securities in the original aggregate principal amount of $50,000,000 issued by Trust V pursuant to the December Trust Agreement, copies of which are attached hereto as Exhibit A-4 (the “ Trust V Preferred Securities ;” together with the Trust I Preferred Securities and Trust II Preferred Securities, the “ Original Preferred Securities ”).

     I. Pursuant to the June Trust Agreement, Trust IV issued a certain Preferred Security Certificate (as such term is defined in the June Trust Agreement) in the amount of $25,000,000 (the “ Original Security IV ”), which Original Security IV is a global security.

     J. Taberna V is the holder of $25,000,000 in principal amount of a beneficial interest in Original Security IV (the “ Taberna V Holding ”).

     K. Pursuant to the May Trust Agreement, Trust VI issued a certain Preferred Security Certificate (as such term is defined in the May Trust Agreement) in the amount of $50,000,000 (the “ Original Security VI ”), which Original Security VI is a global security.

     L. Taberna VII is the holder of $25,000,000 in principal amount of a beneficial interest in Original Security VI (the “ Taberna VII Holding ”), and Taberna VIII is the holder of $25,000,000 in principal amount of a beneficial interest in Original Security VI (the “ Taberna VIII Holding; ” together with the Taberna V Holding and the Taberna VII Holding, the “ Taberna Holdings ”).

     M. Simultaneously herewith, the Company and BNYM, as trustee (the “ New Indenture Trustee ”) have entered into (a) that certain Junior Subordinated Indenture I (“ New Indenture I ”) pursuant to which Company proposes to issue Twenty-Nine Million Four Hundred Thousand Dollars ($29,400,000) in original aggregate principal amount of the Junior Subordinated Notes; and (b) that certain Junior Subordinated Indenture II (“ New Indenture II ”, and together with New Indenture I, the “New Indentures" ) pursuant to which Company proposes to issue One Hundred Sixty-Eight Million Dollars ($168,000,000) in original aggregate principal amount of the Junior Subordinated Notes. Pursuant to the New Indentures, the Company proposes to issue such Junior Subordinated Notes as follows (collectively, the “ Securities ”):

     N. The Securities will be guaranteed by the Guarantor, as to the payment of the Parent Guarantee Payments, as defined in and in accordance with those certain Parent Guarantee Agreements, dated as of the date hereof, each by and between the Guarantor and the BNYM Indenture Trustee, with respect to New Indenture I (the “ Parent Guarantee I ”) and New Indenture II (the “ Parent Guarantee II ”, and together with Parent Guarantee I, the “ Parent Guarantees ”)

     N. On the terms and subject to the conditions set forth in this Agreement, the Company and Taberna have agreed to exchange the Original Preferred Securities and the Taberna Holdings for the Securities.

     NOW, THEREFORE, in consideration of the mutual agreements and subject to the terms and conditions herein set forth, the parties hereto agree as follows:

     1.  Definitions . This Agreement, the New Indentures, the Parent Guarantees and the Securities are collectively referred to herein as the “ Operative Documents .” All other capitalized terms used but not defined in this Agreement shall have the respective meanings ascribed thereto in the New Indentures.

     “ April Trust Agreement ” has the meaning set forth in the Recitals.

     “ April Indenture ” has the meaning set forth in the Recitals.

     “ Bankruptcy Code ” means the Bankruptcy Reform Act of 1978, 11 U.S.C. §§101 et seq., as amended.

     “ Benefit Plan ” means an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code or any entity whose assets include (for purposes of U.S. Department of Labor Regulations Section 2510.3-101 or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan.”

     “ BNYM ” has the meaning set forth in the Recitals.

     “ CDO Trustee ” has the meaning set forth in Section 2(b)(i) .

     “ Code ” means the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated under it.

     “ Closing Date ” has the meaning set forth in Section 2(b).

     “ Closing Room ” has the meaning set forth in Section 2(b).

     “ Company ” has the meaning set forth in the introductory paragraph hereof.

     “ Company Counsel ” has the meaning set forth in Section 3(b).

     “ Commission ” has the meaning set forth in Section 4(v)

     “ December Trust Agreement ” has the meaning set forth in the Recitals.

     “ December Indenture ” has the meaning set forth in the Recitals.

     “ Delaware Trustee ” has the meaning set forth in the Recitals.

     “ Environmental Law ” has the meaning set forth in Section 4(jj).

     “ Environmental Laws ” shall have the correlative meaning.

     “ Equity Interests ” means with respect to any Person (a) if such a Person is a partnership, the partnership interests (general or limited) in a partnership, (b) if such Person is a limited liability company, the membership interests in a limited liability company and (c) if such Person is a corporation, the shares or stick interests (both common stock and preferred stock) in a corporation.

     “ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated under it.

     “ Exchange ” has the meaning set forth in Section 2(b).

     “ Exchange Act ” has the meaning set forth in Section 4(j).

     “ Existing Indentures ” has the meaning set forth in the Recitals.

     “ Existing Subordinated Notes ” has the meaning set forth in the Recitals.

     “ Financial Statements ” has the meaning set forth in Section 4(w).

     “ GAAP ” has the meaning set forth in Section 4(w).

     “ Governmental Entities ” has the meaning set forth in Section 4(o).

     “ Governmental Licenses ” has the meaning set forth in Section 4(r).

     “ Hazardous Materials ” has the meaning set forth in Section 4(jj).

     “ Holder ” has the meaning set forth in the New Indentures.

     “ Impairment ” means any claim, counterclaim, setoff, defense, action, demand, litigation (including administrative proceedings or derivative actions), encumbrance, right (including expungement, avoidance, reduction, contractual or equitable subordination, or otherwise) or defect.

     “ Indemnified Party ” has the meaning set forth in Section 8(a). “ Indemnified Parties ” shall have the correlative meaning.

     “ Investment Company Act ” has the meaning set forth in Section 4(j).

     “ June Indenture ” has the meaning set forth in the Recitals.

     “ June Trust Agreement ” has the meaning set forth in the Recitals.

     “ Kodiak Exchange Agreement” means that certain Exchange Agreement, dated the date hereof by and among Arbor Realty Trust, Inc., Arbor Realty SR, Inc. and Kodiak CDO II, Ltd., Attentus CDO I, Ltd. and Attentus CDO III, Ltd.

     “ Lien ” has the meaning set forth in Section 4(o).

     “ March Indenture ” has the meaning set forth in the Recitals.

     “ March Trust Agreement ” has the meaning set forth in the Recitals.

     “ Material Adverse Effect ” means a material adverse effect on the condition (financial or otherwise), earnings, business, liabilities or assets of the Company and its Significant Subsidiaries taken as a whole.

     “ Material Adverse Change ” has the meaning set forth in Section 3(e)(ii).

     “ May Indenture ” has the meaning set forth in the Recitals.

     “ May Trust Agreement ” has the meaning set forth in the Recitals.

     “ New Indenture I ” has the meaning set forth in the Recitals.

     “ New Indenture II ” has the meaning set forth in the Recitals.

     “ New Indentures ” has the meaning set forth in the Recitals.

     “ New Indenture Trustee ” has the meaning set forth in the Recitals..

     “ Note 1 ” has the meaning set forth in the Recitals.

     “ Note 2 ” has the meaning set forth in the Recitals.

     “ Note 3 ” has the meaning set forth in the Recitals.

     “ Note 4 ” has the meaning set forth in the Recitals.

     “ Note 5 ” has the meaning set forth in the Recitals.

     “ Note 6 ” has the meaning set forth in the Recitals.

     “ Note 7 ” has the meaning set forth in the Recitals.

     “ Original Kodiak Indentures ” has the meaning set forth in the New Indentures.

     “ Original Parent Guarantees ” means (i) that certain Parent Guarantee Agreement, dated March 15, 2005; (ii) that certain Parent Guarantee Agreement, dated April 1, 2005; (iii) that certain Parent Guarantee Agreement, dated December 8, 2005; (iv) that certain Parent Guarantee Agreement, dated May 16, 2006; each by and between Arbor Realty Trust, Inc., as Parent Guarantor, and JPMorgan Chase Bank, National Association, as Guarantee Trustee and (v) that certain Parent Guarantee Agreement, dated June 30, 2005, between Arbor Realty Trust, Inc., as Parent Guarantor, and Wells Fargo Bank, National Association, as Guarantee Trustee, in each case as the same may be amended from time to time.

     “ Original Preferred Securities ” has the meaning set forth in the Recitals.

     “ Original Security IV ” has the meaning set forth in the Recitals.

     “ Original Security VI ” has the meaning set forth in the Recitals.

     “ Parent Guarantee I ” has the meaning set forth in the Recitals.

     “ Parent Guarantee II ” has the meaning set forth in the Recitals.

     “ Parent Guarantees ” means, collectively, Parent Guarantee I and Parent Guarantee II.

     “ Properties ” has the meaning set forth in Section 4(kk).

     “ Property Trustees ” means, collectively, the BNYM Property Trustee and the Wells Property Trustee.

     “ Regulation D ” has the meaning set forth in Section 4(h).

     “ 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.

     “ Significant Subsidiary ” has the meaning set forth in Section 4(q).

     “ Subordinated Note I ” has the meaning set forth in the Recitals.

     “ Subordinated Note II ” has the meaning set forth in the Recitals.

     “ Subordinated Note IV ” has the meaning set forth in the Recitals.

     “ Subordinated Note V ” has the meaning set forth in the Recitals.

     “ Subordinated Note VI ” has the meaning set forth in the Recitals.

     “ Taberna ” has the meaning set forth in the introductory paragraph hereof.

     “ Taberna Holdings ” shall mean the Taberna V Holding, the Taberna VII Holding, and the Taberna VIII Holding.

     “ Taberna I ” has the meaning set forth in the introductory paragraph hereof.

     “ Taberna II ” 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 V ” has the meaning set forth in the introductory paragraph hereof.

     “ Taberna VII ” has the meaning set forth in the introductory paragraph hereof.

     “ Taberna VIII ” has the meaning set forth in the introductory paragraph hereof.

     “ Taberna V Holding ” has the meaning set forth in the Recitals.

     “ Taberna VII Holding ” has the meaning set forth in the Recitals.

     “ Taberna VIII Holding ” has the meaning set forth in the Recitals.

     “ 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 each Taberna entity’s right, title, and interest in, to and under the Original Preferred Securities, Original Security IV and Original Security VI, together with its rights with respect to the following:

          (i) the applicable Existing Indentures, Trust Agreements, and the Original Parent Guarantees;

          (ii) all amounts payable to such Taberna entity under the applicable Original Preferred Securities, Original Security IV, Original Security VI, the applicable Existing Indentures and/or the applicable Trust Agreements;

          (iii) all claims (including “claims” as defined in Bankruptcy Code §101(5)), suits, causes of action, and any other right of such Taberna entity, whether known or unknown, against the Company or any of its affiliates (including the applicable 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 applicable Original Preferred Securities, the applicable Existing Indentures, the applicable Trust Agreements, the applicable Original Parent Guarantees or the transactions related thereto;

          (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 such Taberna entity under the applicable Original Preferred Securities, Original Security IV, and

Original Security VI other than fees, costs and expenses payable to such Taberna entity 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 IV ” has the meaning set forth in the Recitals.

     “ Trust V ” has the meaning set forth in the Recitals.

     “ Trust VI ” has the meaning set forth in the Recitals.

     “ Trust I Preferred Securities ” has the meaning set forth in the Recitals.

     “ Trust II Preferred Securities ” has the meaning set forth in the Recitals.

     “ Trust V Preferred Securities ” has the meaning set forth in the Recitals.

     “ Trust Agreements ” has the meaning set forth in the Recitals.

      “Wells” has the meaning set forth in the Recitals.

      “Wells Property Trustee” 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 Indentures and has requested that the Taberna entities accept such Securities in exchange for the applicable Original Preferred Securities and the applicable Taberna Holdings, and each of the Taberna entities hereby accepts the applicable Securities in exchange for the applicable Original Preferred Securities and the applicable Taberna Holdings 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 May 6, 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, Original Security IV and Original Security VI to (A) exchange the Original Preferred

Securities for the Securities and to deliver the Original Preferred Securities to the applicable Property Trustee for cancellation and reissuance in the name of the Company, and (B) as to Taberna V, Taberna VII and Taberna VIII, exchange the Taberna V Holding for Note 7, the Taberna VII Holding for Note 5 and the Taberna VIII Holding for Note 6, and transfer Taberna V’s interest in Original Security IV, Taberna VII’s interest in Original Security VI and Taberna VIII’s interest in Original Security VI, to 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 I, (ii) Note 2 to Taberna II, (iii) Note 3 to Taberna III, (iv) Note 4 to Taberna IV; (v) Note 5 to Taberna VII; (iv) Note 6 to Taberna VIII; and (vii) Note 7 to Taberna V.

          (iv) New Indenture Trustee shall have authenticated the applicable Securities in accordance with the terms of the applicable New Indenture and delivered them as provided above.

          (v) Each Property Trustee, on behalf of the applicable Trusts, shall have obtained the applicable Original Preferred Securities and shall promptly thereafter, as requested by the Company, cancel and reissue them in the name of the Company or cancel them entirely.

          (vi) Simultaneously with the occurrence of the events described in subsections (iv) and (v) hereof and satisfaction of all other requirements herein, (A) each Taberna entity holding the applicable Original Preferred Securities or the applicable Taberna Holdings irrevocably transfers, assigns, grants and conveys the related Taberna Transferred Rights to the Company and the Company assumes all rights and obligations of Taberna with respect to the Original Preferred Securities, the Taberna Holdings 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 applicable Securities, the applicable New Indenture and any related Operative Documents.

          (vii) Company shall have paid to 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, the Trust Agreements and the New Indentures, if any.

     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) Cooley, Godward, Kronish LLP, counsel for the Company and the Guarantor (the “ Company Counsel ”), shall have delivered opinions with respect to each New Indenture and the related Operative Documents, 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; the Company shall have delivered opinions of the Company’s and Guarantor’s General Counsel addressed to each Holder and its successors and assigns and to the New Indenture Trustee, in substantially the form set out in Annex A-2 hereto, and if required by Taberna Capital Management, LLC, 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 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 the Holders) and by and upon such other documents as such counsel may, in its reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which it is admitted to practice and that it is not admitted to practice in any other jurisdiction and is not an expert in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that it is to be governed or qualified by, or that it is otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).

          (c) Taberna shall have been furnished opinions of the Company Counsel, dated as of the Closing Date, addressed to the Holders of the Securities and their respective successors and assigns and the applicable New Indenture Trustee, in substantially the form set out in Annex B hereto.

          (d) The Holders of the Securities shall have received, with respect to each New Indenture and the related Operative Documents, the opinion of special counsel for New Indenture Trustee, dated as of the Closing Date, addressed to the Holders of the Securities and their successors and assigns, in substantially the form set out in Annex C hereto.

          (e) Each of the Guarantor and the Company shall have furnished to the Holders of the Securities under each of the New Indentures a certificate of the Company, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, dated as of the Closing Date, as to (i) and (ii) below:

          (i) the representations and warranties in this Agreement and the New Indentures are true and correct on and as of the Closing Date, and Company and the Guarantor have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; and

          (ii) since the date of the latest Financial Statements, there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company, the Guarantor and their respective Significant Subsidiaries, taken as a

whole, whether or not arising from transactions occurring in the ordinary course of business (a “ Material Adverse Change ”).

          (f) The Company shall pay on or prior to the Closing Date, to the applicable Taberna entities a fee as set forth on Schedule 2, calculated as the amount of interest accrued upon the Original Preferred Securities and the Taberna Holdings, based upon (i) a principal balance equal to one hundred twelve percent (112%) of the outstanding principle balance of the Original Preferred Securities and the Taberna Holdings, (ii) an interest rate of one half of one percent (0.5%) per annum, and (iii) a period commencing on and including the most recent Interest Payment Date under the Existing Indenture for which interest was actually paid under the Original Preferred Securities and the Taberna Holdings, as applicable, and continuing through and including the Closing Date.

          (g) Prior to the Closing Date, the Company and the Guarantor shall have furnished to the Holders of the Securities and their counsel such further information, certificates and documents as the Holders of the Securities or such counsel may reasonably request.

     If any of the conditions specified in this Section 3 shall not have been fulfilled when and as 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 the Holders of the Securities or their counsel, this Agreement and any obligations of Taberna hereunder, whether as holders of the Original Preferred Securities or the Taberna Holdings, as applicable, or as prospective Holders of the Securities, may be canceled at, or at any time prior to, the Closing Date by Taberna. Notice of such cancellation shall be given to the Company or the Guarantor in writing or by telephone and confirmed in writing, or by e-mail or facsimile.

     Each certificate signed by any officer of the Company and the Guarantor and delivered to the Holders of the Securities or the Holders’ counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Company and the Guarantor, as applicable, and not by such officer in any individual capacity.

     4.  Representations and Warranties of the Company and the Guarantor . The Company and the Guarantor jointly and severally represent and warrant to, and agree with Taberna, as holders of the Original Preferred Securities and the Taberna Holdings and with the Holders of the Securities, as follows:

          (a) Each of the Company and the Guarantor (i) is duly organized and validly existing under the laws of its jurisdiction of organization or incorporation, (ii) is in good standing under such laws and (iii) has full power and authority to execute, deliver and perform its obligations under this Agreement and the other Operative Documents.

          (b) Each of the Company and the Guarantor is an “accredited investor” as defined in Rule 501 under the Securities Act. Without characterizing the Original Preferred Securities, Original Security IV, Original Security VI or any of the Taberna Transferred Rights as a “security” within the meaning of applicable securities laws, the Company is not acquiring the Original Preferred Securities, Original Security IV, Original Security VI or the Taberna

Transferred Rights with a view towards the sale or distribution thereof in violation of the Securities Act.

          (c) Intentionally omitted.

          (d) None of the Securities, the New Indentures, or the Exchange, is or may be (i) void or voidable as an actual or constructive fraudulent transfer or as a preferential transfer or (ii) subject to any Impairment.

          (e) Each of the Company and the Guarantor (i) is a sophisticated entity with respect to the Exchange and the transactions contemplated thereby, (ii) has such knowledge and experience, and has made investments of a similar nature, so as to be aware of the risks and uncertainties inherent in the Exchange and the transactions contemplated thereby and (iii) has independently and without reliance upon any Taberna entity, any Holder of the Securities, Taberna Capital Management, LLC, BNYM, or any of their affiliates, and based on such information as it has deemed appropriate, made its own analysis and decision to enter into this Agreement, except that it has relied upon each Taberna entity’s express representations, warranties, covenants and agreements in this Agreement. The Company and the Guarantor acknowledge that none of Taberna, any Holders of the Securities, Taberna Capital Management, LLC, BNYM, or any of their affiliates has given them any investment advice, credit information or opinion on whether the Exchange is prudent.

          (f) Neither the Company nor the Guarantor has engaged any broker, finder or other entity acting under the authority of it or any of its affiliates that is entitled to any broker’s commission or other fee in connection with the transaction for which Taberna, any Holder, Trustee or any of their affiliates could be responsible.

          (g) No interest in the Taberna Transferred Rights is being acquired by or on behalf of an entity that is, or at any time while the Taberna Transferred Rights are held thereby will be, one or more Benefit Plans.

          (h) Neither the Company, the Guarantor nor any of their respective “Affiliates” (as defined in Rule 501(b) of Regulation D (“ Regulation D ”) under the Securities Act (as defined below)), nor any person acting on its or their behalf, has, directly or indirectly, made offers or sales of any security, or solicited offers to buy any security, under circumstances that would require the registration of any of the Securities under the Securities Act.

          (i) Neither the Company the Guarantor nor any of their respective Affiliates, nor any person acting on its or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of any of the Securities.

          (j) The Securities (i) are not and have not been listed on a national securities exchange registered under Section 6 of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), or quoted on a U.S. automated inter-dealer quotation system and (ii) are not of an open-end investment company, unit investment trust or face-amount certificate company that are, or are required to be, registered under Section 8 of the Investment Company Act of 1940, as amended (the “ Investment Company Act ”), and the Securities otherwise satisfy the eligibility

requirements of Rule 144A(d)(3) promulgated pursuant to the Securities Act (“ Rule 144A(d)(3) ”).

          (k) Neither the Company, the Guarantor nor any of their respective Affiliates, nor any person acting on its or their behalf, has engaged, or will engage, in any “directed selling efforts” within the meaning of Regulation S under the Securities Act with respect to the Securities.

          (l) Neither the Company nor the Guarantor is, and immediately following consummation of the transactions contemplated hereby, will be, an “investment company” or an entity “controlled” by an “investment company,” in each case within the meaning of Section 3(a) of the Investment Company Act.

          (m) Each of this Agreement, the New Indentures and the other Operative Documents and the consummation of the transactions contemplated herein and therein have been duly authorized by the Company and the Guarantor and, on the Closing Date, will have been duly executed and delivered by the Company and the Guarantor and, assuming due authorization, execution and delivery by Taberna and/or the Trustee, as applicable, will be a legal, valid and binding obligations of the Company and the Guarantor enforceable against them in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity.

          (n) The Securities have been duly authorized by the Company and, on the Closing Date, will have been duly executed and delivered to the Trustee for authentication in accordance with the New Indentures and, when authenticated in the manner provided for in the New Indentures and delivered to the Holders, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the New Indentures, enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity.

          (o) Neither the issue of the Securities and exchange of the Securiti