EXCHANGE AGREEMENT

Exhibit 10.55

EXECUTION COPY

EXCHANGE AGREEMENT

BY AND AMONG

NOVASTAR MORTGAGE, INC.,

NOVASTAR FINANCIAL, INC.,

NOVASTAR CAPITAL TRUST I/B,

NOVASTAR CAPITAL TRUST II/B,

AND

THE HOLDERS LISTED ON SCHEDULES I AND II HERETO

Dated as of February 18, 2009

EXCHANGE AGREEMENT

THIS EXCHANGE AGREEMENT (this “ Exchange Agreement ” or “ Agreement ”), dated as of February 18, 2009 (the “ Effective Date ”), is entered into by and among, NOVASTAR MORTGAGE, INC., a Virginia corporation (the “ Company ”), NOVASTAR FINANCIAL, INC., a Maryland corporation (the “ Guarantor ”), NOVASTAR CAPITAL TRUST I/B, a Delaware statutory trust (the “ NovaStar Trust I/B ”), NOVASTAR CAPITAL TRUST II/B, a Delaware statutory trust (the “ NovaStar Trust II/B ”, together with NovaStar Trust I/B, the “ Trusts ” and, together with the Company, the Guarantor and the NovaStar Trust I/B, the “ Exchangors ”) and the beneficial owners of the preferred securities of the Existing Trusts (as defined below) whose names appear on the signature pages hereto (the “ Holders ”).

WITNESSETH:

WHEREAS, the Holders listed on Schedule I hereto are the beneficial owners of all of the trust preferred securities currently outstanding which were issued by the NovaStar Capital Trust I, a Delaware statutory trust (the “ NovaStar Trust I ”), in the stated liquidation amounts set forth next to their names on such Schedule I (the “ 2005 Preferred Securities ”);

WHEREAS, the Holders listed on Schedule II hereto are the beneficial owners of all of the trust preferred securities currently outstanding (other than such trust preferred securities owned by the Company) which were issued by the NovaStar Capital Trust II, a Delaware statutory trust (the “NovaStar Trust II” and, together with the NovaStar Trust I, the “ Existing Trusts ”), in the stated liquidation amounts set forth next to their names on such Schedule II (the “ 2006 Preferred Securities ” and, together with the 2005 Preferred Securities, the “ Existing Preferred Securities ”);

WHEREAS, the NovaStar Trust I is the holder and beneficial owner of all of the outstanding unsecured junior subordinated notes issued by the Company in the aggregate principal amount of $51,550,000 (the “ 2005 Junior Subordinated Notes ”);

WHEREAS, the NovaStar Trust II is the holder and beneficial owner of all of the outstanding unsecured junior subordinated notes issued by the Company in the aggregate principal amount of $28,995,000 (the “ 2006 Junior Subordinated Notes ” and, together with the 2005 Junior Subordinated Notes, the “ Existing Subordinated Notes ”);

WHEREAS, the Company proposes to issue to the NovaStar Trust I/B $51,550,000 in aggregate principal amount of the unsecured junior subordinated notes of the Company (the “ 2009 I/B Junior Subordinated Notes ”) and to cause the NovaStar Trust I/B to issue (a) 50,000 Preferred Securities of the NovaStar Trust I/B, having an aggregate liquidation amount of $50,000,000 (the “ 2009 I/B Preferred Securities ”), to the applicable Holders in exchange for the transfer by the applicable Holders to the Company of all of the outstanding 2005 Preferred Securities and (b) 1,550 Common Securities of the NovaStar Trust I/B, having an aggregate liquidation amount of $1,550,000 (the “ 2009 I/B Common Securities ”), to the Company;

WHEREAS, the Company proposes to issue to the NovaStar Trust II/B $28,995,000 in aggregate principal amount of the unsecured junior subordinated notes of the Company (the “ 2009 II/B Junior Subordinated Notes ” and, together with the 2009 I/B Junior Subordinated Notes, the “ Junior Subordinated Notes ”) and to cause the NovaStar Trust II/B to issue (a) 28,125 Preferred Securities of the NovaStar Trust II/B, having an aggregate liquidation amount of $28,125,000 (the “ 2009 II/B Preferred Securities ” and, together with the 2009 I/B Preferred Securities, the “ Preferred Securities ”), to the applicable Holders in exchange for the transfer by the applicable Holders to the Company of all of the outstanding 2006 Preferred Securities and (b) 870 Common Securities of the NovaStar Trust II/B, having an aggregate liquidation amount of $870,000 (the “ 2009 II/B Common Securities ” and, together with the 2009 I/B Common Securities, the “ Common Securities ”), to the Company;

WHEREAS, upon receipt of the Existing Preferred Securities from the applicable Holders, the Company proposes to (a) surrender the Existing Preferred Securities and all of the outstanding common securities which were issued by the Existing Trusts (collectively, the “ Existing Common Securities ”) to the applicable property trustee of the Existing Trusts for cancellation thereof, (b) direct the property trustees and administrative trustees of the Existing Trusts to dissolve the Existing Trusts and to surrender the Existing Subordinated Notes to the applicable indenture trustees for cancellation thereof and (c) cause the indentures pursuant to which the Existing Subordinated Notes were issued to be discharged (the “ Existing Indentures ”);

WHEREAS, the 2009 I/B Preferred Securities and the 2009 I/B Common Securities of the NovaStar Trust I/B will be issued pursuant to the Amended and Restated Trust Agreement (the “ 2009 I/B Trust Agreement ”), dated as of the Effective Date, among the Company, as depositor, The Bank of New York Mellon Trust Company, National Association, a national banking association (“ BNYM ”), as property trustee (in such capacity, the “ 2009 I/B Property Trustee ”), BNY Mellon Trust of Delaware (“ BNYM Delaware ”), as Delaware trustee (in such capacity, the “ 2009 I/B Delaware Trustee ”) and the administrative trustees named therein;

WHEREAS, the 2009 II/B Preferred Securities and the 2009 II/B Common Securities of the NovaStar Trust II/B will be issued pursuant to the Amended and Restated Trust Agreement (the “ 2009 II/B Trust Agreement ” and, together with the 2009 I/B Trust Agreement, the “ Trust Agreements ”), dated as of the Effective Date, among the Company, as depositor, BNYM, as property trustee (in such capacity, the “ 2009 II/B Property Trustee ”), BNYM Delaware, as Delaware trustee (in such capacity, the “ 2009 II/B Delaware Trustee ”) and the administrative trustees named therein (together with the administrative trustees named in the 2009 I/B Trust Agreement, the “ Administrative Trustees ”);

WHEREAS, the 2009 I/B Preferred Securities will be guaranteed on a subordinated basis by the Guarantor as to the payment of distributions, and as to payments on liquidation and redemption, to the extent set forth in the Parent Guarantee Agreement (the “ 2009 I/B Guarantee ”), dated as of the Effective Date, between the Guarantor and BNYM, as guarantee trustee (in such capacity, the “ 2009 I/B Guarantee Trustee ”);

WHEREAS, the 2009 II/B Preferred Securities will be guaranteed on a subordinated basis by the Guarantor as to the payment of distributions, and as to payments on liquidation and redemption, to the extent set forth in the Parent Guarantee Agreement

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(the “ 2009 II/B Guarantee ” and, together with the 2009 I/B Guarantee, the “ Guarantees ”), dated as of the Effective Date, between the Guarantor and BNYM, as guarantee trustee (in such capacity, the “ 2009 II/B Guarantee Trustee ”);

WHEREAS, the 2009 I/B Junior Subordinated Notes will be issued pursuant to a Junior Subordinated Indenture, dated as of the Effective Date (the “ 2009 I/B Indenture ”), between the Company and BNYM, as indenture trustee (in such capacity, the “ 2009 I/B Indenture Trustee ”);

WHEREAS, the 2009 II/B Junior Subordinated Notes will be issued pursuant to a Junior Subordinated Indenture, dated as of the Effective Date (the “ 2009 II/B Indenture ” and, together with the 2009 I/B Indenture, the “ Indentures ”), between the Company and BNYM, as indenture trustee (in such capacity, the “ 2009 II/B Indenture Trustee ”); and

WHEREAS, WolfBlock LLP, not in its individual capacity, but solely as escrow agent (the “ Escrow Agent ”), will, pursuant to an Escrow Agreement, dated as of the Effective Date, between the Escrow Agent, the Exchangors and the Holders (the “ Escrow Agreement ”), facilitate the exchange upon satisfaction of the conditions precedent set forth herein.

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

Section 1. Definitions . The Preferred Securities, the Common Securities and the Junior Subordinated Notes are collectively referred to herein as the “ Securities .” The Existing Preferred Securities, the Existing Common Securities and the Existing Subordinated Notes are collectively referred to herein as the “ Existing Securities .” This Exchange Agreement, the Indentures, the Trust Agreements, the Guarantees and the Securities are collectively referred to herein as the “ Operative Documents .”

Section 2. Exchange of the Existing Preferred Securities .

2.1 On the Exchange Date, the Company hereby agrees to issue the 2009 I/B Junior Subordinated Notes to the NovaStar Trust I/B and to cause the NovaStar Trust I/B to issue (a) the 2009 I/B Preferred Securities to the applicable Holders in exchange for the transfer by the applicable Holders to the Company of all of the outstanding 2005 Preferred Securities and (b) the 2009 I/B Common Securities to the Company. On the Exchange Date, the NovaStar Trust I/B hereby agrees to accept the 2009 I/B Junior Subordinated Notes and to issue the 2009 I/B Preferred Securities and the 2009 I/B Common Securities. On the Exchange Date, the applicable Holders hereby agree to accept the 2009 I/B Preferred Securities in exchange for the 2005 Preferred Securities.

2.2 On the Exchange Date, the Company hereby agrees to issue the 2009 II/B Junior Subordinated Notes to the NovaStar Trust II/B and to cause the NovaStar Trust II/B to issue (a) the 2009 II/B Preferred Securities to the applicable Holders in exchange for the transfer by the applicable Holders to the Company of all of the outstanding 2006 Preferred Securities and (b) the 2009 II/B Common Securities to the Company. On the Exchange Date, the NovaStar Trust II/B hereby agrees to accept the 2009 II/B Junior Subordinated Notes and to issue the 2009 II/B Preferred Securities and the 2009 II/B Common Securities. On the Exchange Date, the applicable Holders hereby agree to accept the 2009 II/B Preferred Securities in exchange for the 2006 Preferred Securities.

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2.3 Prior to or on the Exchange Date, the Company hereby agrees to deliver to the 2009 I/B Indenture Trustee all of its 2009 I/B Junior Subordinated Notes and to the 2009 II/B Indenture Trustee all of its 2009 II/B Junior Subordinated Notes, in each case together with a request for authentication and delivery on the Exchange Date, and may not withdraw such delivery and request unless and until this Agreement is terminated in accordance with Section 9 . Prior to or on the Exchange Date, the Company hereby agrees to cause the Administrative Trustees to deliver to the 2009 I/B Property Trustee all of the 2009 I/B Preferred Securities and to the 2009 II/B Property Trustee all of the 2009 II/B Preferred Securities, in each case together with a request for authentication and delivery on the Exchange Date, and may not withdraw such delivery and request unless and until this Agreement is terminated in accordance with Section 9 . Prior to or on the Exchange Date, each Holder hereby agrees to deliver an issuer order (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 such Holder to exchange the Existing Preferred Securities for the Preferred Securities on the Exchange Date and to deliver to the 2009 I/B Property Trustee or the 2009 II/B Property Trustee, as applicable, all of its Existing Preferred Securities on or before the Exchange Date and may not withdraw such Issuer Order or delivery unless and until this Agreement is terminated in accordance with Section 9 .

2.4 If the applicable Holders elect to have the Preferred Securities rated, each Holder shall be responsible for its pro rata portion of any rating agency costs for the Preferred Securities of the applicable Trust that such Holder will acquire upon the Exchange Date (defined below). In no event shall any Holder be responsible for any rating agency costs of any other Holder or the fees and expenses set forth in Section 7 , and, each Holder is solely responsible for its own expenses to the extent not reimbursed by the Company or the Guarantor pursuant to the Settlement Agreement (defined below). Outstanding as of the Effective Date are:

None of the Company, the Company’s Board of Directors, the Guarantor, the Guarantor’s Board of Directors, nor any trustee of any of the Trusts or the Existing Trusts makes or has made any recommendation to any Holder as to whether to exchange or refrain from exchanging all or any portion of the Existing Preferred Securities for Preferred Securities pursuant to this Exchange Agreement. In addition, no one has been authorized to make any such recommendation. Each Holder has made its own decision whether to exchange all of such Holder’s Existing Preferred Securities pursuant to this Agreement based upon such Holder’s own financial positions and requirements and upon such due diligence and advice as it has deemed necessary.

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2.5 On the Exchange Date, upon the direction of the applicable Administrative Trustees, the 2009 I/B Property Trustee and the 2009 II/B Property Trustee shall authenticate and deliver the respective Preferred Securities in accordance with the terms of the respective Trust Agreements. On the Exchange Date, upon the direction of the Company, the 2009 I/B Indenture Trustee and the 2009 II/B Indenture Trustee shall authenticate and deliver the respective Junior Subordinated Notes in accordance with the terms of the respective Indentures.

2.6 On the Exchange Date, immediately following the satisfaction of the conditions set forth in Section 3 : (a) the 2009 I/B Property Trustee shall deliver the 2009 I/B Preferred Securities, in the amounts set forth on Schedule I , to the applicable Holders according to the delivery instructions provided by each such Holder to the 2009 I/B Property Trustee, (b) the 2009 II/B Property Trustee shall deliver the 2009 II/B Preferred Securities, in the amounts set forth on Schedule II , to the applicable Holders according to the delivery instructions provided by each such Holder to the 2009 II/B Property Trustee, (c) the Administrative Trustees shall deliver the Common Securities to the Company according to the delivery instructions provided by the Company to the Administrative Trustees, (d) the 2009 I/B Indenture Trustee shall deliver the 2009 I/B Junior Subordinated Notes to the NovaStar Trust I/B according to the delivery instructions provided by such Trust to the 2009 I/B Indenture Trustee, (e) the 2009 II/B Indenture Trustee shall deliver the 2009 II/B Junior Subordinated Notes to the NovaStar Trust II/B according to the delivery instructions provided by such Trust to the 2009 II/B Indenture Trustee, and (f) the 2009 I/B Property Trustee and the 2009 II/B Property Trustee shall deliver all of the Existing Preferred Securities to the Company according to the delivery instructions provided by the Company to the 2009 I/B Property Trustee and the 2009 II/B Property Trustee, respectively. Upon receipt of the Existing Preferred Securities from the 2009 I/B Property Trustee and the 2009 II/B Property Trustee, the Company shall (i) surrender the Existing Preferred Securities and the Existing Common Securities to the applicable Existing Trusts for cancellation thereof, (ii) direct the appropriate trustees of the Existing Trusts to dissolve the Existing Trusts and to surrender the Existing Subordinated Notes to the applicable indenture trustees for cancellation thereof and (iii) cause the Existing Indentures to be discharged.

2.7 Each Holder and each Exchangor agrees that, on and as of the Exchange Date, (a) all obligations under the Existing Securities shall be deemed to be fully discharged and satisfied, and (b) all right, title and interest in and to any payments of principal, interest or any other amounts under or with respect to the Existing Securities, whether or not any of such payments are due or accrued and unpaid, shall be deemed surrendered and forfeited.

2.8 The exchange date shall be the date upon which all of the conditions precedent set forth in Section 3 shall have been satisfied (the “ Exchange Date ”). If the Exchange Date has not occurred on or before April 30, 2009 (the “ Expiry Date ”), (a) the 2009 I/B Property Trustee and the 2009 II/B Property Trustee shall return the Existing Preferred Securities to the applicable Holders and the Preferred Securities to the Administrative Trustees of the applicable Trusts, (b) the 2009 I/B Indenture Trustee and the 2009 II/B Indenture Trustee shall return the Junior Subordinated Notes to the Company, (c) the Company shall return the Common Securities to the applicable Trusts, (d) no exchange shall take place pursuant to this Agreement, (e) the Escrow Agent shall return the full amount of the Settlement Amount (as defined in the Escrow Agreement) to the Company, and (f) this Agreement and the Operative Documents shall be terminated in accordance with Section 9 .

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2.9 The Preferred Securities shall be delivered by each of the Trusts, directly or indirectly, to each Holder without registration of any of the Securities under the Securities Act of 1933, as amended (the “ Securities Act ”), or any other applicable securities laws in reliance upon exemptions from the registration requirements of the Securities Act and other applicable securities laws.

Section 3. Closing Conditions . The exchange of the Securities pursuant to this Agreement is subject to the timely satisfaction of the following conditions precedent:

3.1 Conditions to be Satisfied prior to or on Effective Date .

(a) Escrow Agreement . Prior to or on the Effective Date, the Exchangors, the Holders and the Escrow Agent shall have executed and delivered the Escrow Agreement, in form and substance acceptable to each Holder and each Exchangor (acceptance of such form and substance to be evidenced by such Holder’s or such Exchangor’s execution and delivery thereof).

(b) Settlement Agreement . Prior to or on the Effective Date, the parties to that certain Settlement Agreement (the “ Settlement Agreement ”) shall have executed and delivered such Settlement Agreement, in form and substance acceptable to each Holder and each Exchangor (acceptance of such form and substance to be evidenced by such Holder’s or such Exchangor’s execution and delivery thereof), and the Company shall have deposited the Settlement Amount (as defined therein) with the Escrow Agent pursuant to the Escrow Agreement and the Settlement Agreement.

(c) Operative Documents . On the Effective Date, the parties to this Exchange Agreement, the Indentures, the Trust Agreements and the Guarantees shall have executed and delivered such Operative Documents to the other parties thereto and in form and substance acceptable to each Holder and each Exchangor (acceptance of such form and substance to be evidenced by such Holder’s or such Exchangor’s execution and delivery thereof).

3.2 Conditions to be Satisfied prior to or on the Exchange Date .

(a) Accuracy of Representations and Warranties . The representations and warranties contained in this Agreement, and the statements of the Exchangors and the Holders made in any certificates pursuant to this Agreement, shall be accurate as of the Exchange Date.

(b) Opinions of Counsel .

(i) The Holders shall have received an opinion of Husch Blackwell Sanders LLP, special counsel for the Company and the Guarantor, dated as of the Exchange Date and in form and substance acceptable to each Holder.

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(ii) The Holders shall have received an opinion of Husch Blackwell Sanders LLP, special tax counsel for the Guarantor, dated as of the Exchange Date and in form and substance acceptable to each Holder.

(iii) The Holders, the Company and the Guarantor shall have received an opinion of Richards, Layton & Finger, P.A., special counsel for the Trusts and the 2009 I/B Delaware Trustee and the 2009 II/B Delaware Trustee, dated as of the Exchange Date and in form and substance acceptable to each Holder, the Company and the Guarantor.

(iv) The Holders and the Exchangors shall have received an opinion of Gardere Wynne Sewell LLP, special counsel for the 2009 I/B Property Trustee, 2009 II/B Property Trustee, 2009 I/B Indenture Trustee and 2009 II/B Indenture Trustee, dated as of the Exchange Date and in form and substance acceptable to each Holder and each Exchangor.

(v) The Exchangors shall have received an opinion of Winston & Strawn LLP, special counsel for the Holders, dated as of the Exchange Date and in form and substance acceptable to each Exchangor.

(vi) The Holders shall have received an opinion of Winston & Strawn, LLP, special tax counsel for the Holders, dated as of the Exchange Date and in form and substance acceptable to each Holder.

(c) Dismissal Order . On or before the Expiry Date, the Holders shall have obtained entry of the Dismissal Order (as defined in the Settlement Agreement) (the “ Dismissal Order ”).

(d) Officer’s Certificate of the Company and the Guarantor . Each of the Company and the Guarantor shall have furnished to each Holder a certificate of the Company and the Guarantor, as applicable, in form and substance acceptable to each Holder, signed by the Chief Executive Officer, President or a Vice President and by the Chief Financial Officer, Treasurer or Assistant Treasurer of the Company and the Guarantor, as applicable, and each Trust shall have furnished to the Holders of the Preferred Securities issued by such Trust a certificate of the Trust signed by an Administrative Trustee of such Trust, in each case dated the Exchange Date, and, in the case of the Company, the Guarantor and each Trust, that the representations and warranties in this Agreement are true and correct on and as of the Exchange Date with the same effect as if made on and at such time, and the Company, the Guarantor and the Trusts have complied in all material respects with all the agreements and satisfied all the conditions on each of their part to be performed or satisfied at or prior to the Exchange Date.

(e) Officer’s Certificate of each Holder . Each Holder shall have furnished to the Company and the Guarantor a certificate of the applicable Holder, in form and substance acceptable to the Company and the Guarantor, signed by an authorized signatory of such Holder, in each case dated the Exchange Date, and, stating that the representations and warranties in this Agreement are true and correct on and as of the Exchange Date with the same effect as if made on and at such time, and that such Holder has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Exchange Date.

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(f) No Subsequent Change . Subsequent to the execution of this Agreement but prior to the Exchange Date, there shall not have been any change, or any development involving a prospective change, in, or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries taken as a whole, whether or not occurring in the ordinary course of business, the effect of which is, in each Holder’s or the Company’s reasonable judgment, so material and adverse as to make it impractical or inadvisable to proceed with the transactions contemplated hereby.

(g) Purchase Permitted by Applicable Laws; Legal Investment . The exchange of the Existing Preferred Securities for the Preferred Securities as described in this Agreement shall (a) not be prohibited by any applicable law or governmental regulation, (b) not subject the Holders or the Exchangors to any material penalty under or pursuant to any applicable law or governmental regulation and (c) be permitted by the laws and regulations of the jurisdictions to which the Holders and the Exchangors are subject.

(h) Cancellation of Certain Existing Preferred Securities, Existing Common Securities and Corresponding Like Amount of Notes . On or before the Expiry Date, (i) the Company shall have surrendered to the BNYM as property trustee for the NovaStar Trust II (the “ 2006 Property Trustee ”) the trust preferred securities currently outstanding and owned by the Company which were issued by the NovaStar Trust II and a proportionate amount of the common securities issued by NovaStar Trust II (the “ Surrendered Securities ”) for cancellation thereof, (ii) the 2006 Property Trustee shall have cancelled the Surrendered Securities, (iii) the 2006 Property Trustee shall have caused the NovaStar Trust II to have surrendered to BNYM, as trustee pursuant to that certain Junior Subordinated Indenture, dated as of April 18, 2006 (the “ 2006 Indenture Trustee ”), an amount of 2006 Junior Subordinated Notes with an outstanding principal amount equal to the stated liquidation amount of the Surrendered Securities (the “ Surrendered Notes ”) for cancellation thereof and (iv) the 2006 Indenture Trustee shall have cancelled the Surrendered Notes.

(i) Acknowledgment of Trustees . On or before the Expiry Date, the Holders, the Company and the Guarantor shall have received the Acknowledgment of Trustees (as defined in the Settlement Agreement).

Section 4. Representations and Warranties of the Exchangors . The Exchangors jointly and severally represent and warrant to the Holders as of the Effective Date and as of the Exchange Date (except as otherwise noted herein) as follows (it being understood that each Trust is hereby making the following representations and warranties only as to itself and not the other Trusts); provided , however , that none of the following representations or warranties apply or relate to any acts or omissions by the Holders or their Affiliates, and provided , further , that the representations and warranties made in Section 4.15 are made as of the respective closing dates of the agreements therein referenced or as of such earlier dates as noted otherwise therein:

4.1 Securities Laws Matters :

(a) None of the Exchangors, nor any of their “Affiliates” (as defined in Rule 501(b) of Regulation D under the Securities Act (“ Regulation D ”)), nor any person acting on any of their behalf (except for the Holders, as to which no representation or warranty is made) 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 under the Securities Act of any of the Securities.

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(b) None of the Exchangors, nor any of their Affiliates, nor any person acting on any of their behalf (except for the Holders, as to which no representation or warranty is made) has (i) offered for sale or solicited offers to purchase the Securities, (ii) 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, or (iii) engaged in any “directed selling efforts” within the meaning of Regulation S under the Securities Act (“ Regulation S ”) with respect to the Securities.

(c) 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 interdealer 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) ”).

(d) None of the Exchangors is, and, immediately following consummation of the transactions contemplated hereby, none of the Exchangors 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.

(e) None of the Exchangors have paid or agreed to pay to any person or entity, directly or indirectly, any fees or other compensation for soliciting another to purchase any of the Securities.

4.2 Standing and Qualification of the Trusts . Each Trust has been duly formed and is validly existing in good standing as a statutory trust under the Delaware Statutory Trust Act, 12 Del. C. §3801, et seq . (the “ Statutory Trust Act ”), with all requisite power and authority to own property and to conduct the business it transacts and proposes to transact and to enter into and perform its obligations under the Operative Documents to which it is a party. Each Trust is duly qualified to transact business as a foreign entity and is in good standing in each jurisdiction in which such qualification is necessary, except where the failure to so qualify or be in good standing would not have a material adverse effect on the condition (financial or otherwise), earnings, business or assets of the Trusts, whether or not occurring in the ordinary course of business. None of the Trusts is a party to, or otherwise bound by, any agreement other than the Operative Documents to which they are a party and the other agreements contemplated by the Operative Documents. Each of the Trusts is, and under current law will continue to be, classified for federal income tax purposes as grantor trusts and not as a business entity or an association or publicly traded partnership taxable as a corporation.

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4.3 Trust Agreements . Upon approval of the Trust Agreements and the other Operative Documents by the United States Bankruptcy Court for the District of Delaware (the “ Bankruptcy Court ”), the Trust Agreements shall have each been duly authorized, executed and delivered by the Company and the Administrative Trustees of each of the respective Trusts and, assuming due authorization, execution and delivery by the 2009 I/B Property Trustee, the 2009 II/B Property Trustee, the 2009 I/B Delaware Trustee and the 2009 II/B Delaware Trustee, respectively, will be a legal, valid and binding obligation of the Company and the respective Administrative Trustees, 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. Each of the Administrative Trustees of the Trusts is an employee of the Company and has been duly authorized by the Company to execute and deliver each of the Trust Agreements. To the knowledge of the respective Administrative Trustees, no Trust is in violation of any provision of the Statutory Trust Act.

4.4 Indenture . Upon approval of the Indentures and the other Operative Documents by the Bankruptcy Court, each Indenture shall have been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the 2009 I/B Indenture Trustee and the 2009 II/B Indenture Trustee, respectively, will be a legal, va