ahr_ex4-1.htm


    Exhibit
4.1

     

    

 

     

    AMENDED
AND RESTATED

     

    JUNIOR
SUBORDINATED INDENTURE

     

    between

     

    


     

    ANTHRACITE
CAPITAL, INC.

     

     

     

    and

     

    


     

    WILMINGTON
TRUST COMPANY,

    as
Trustee

     

    ________________

     

     

    Dated
as of October 23, 2009

     

    ________________

     

    
      
 

      
        

        

      

    

     

    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


     

    TABLE
OF CONTENTS

     

    Page

     

    
      	
              ARTICLE
      I Definitions and Other Provisions of General Application

            	
              1

            
	 
      	 
      
	
              SECTION
      1.1.

            	
              Definitions.

            	
              1

            
	
              SECTION
      1.2.

            	
              Compliance
      Certificate and Opinions.

            	
              10

            
	
              SECTION
      1.3.

            	
              Forms
      of Documents Delivered to Trustee.

            	
              10

            
	
              SECTION
      1.4.

            	
              Acts
      of Holders.

            	
              11

            
	
              SECTION
      1.5.

            	
              Notices,
      Etc. to Trustee and Company.

            	
              13

            
	
              SECTION
      1.6.

            	
              Notice
      to Holders; Waiver.

            	
              13

            
	
              SECTION
      1.7.

            	
              Effect
      of Headings and Table of Contents.

            	
              14

            
	
              SECTION
      1.8.

            	
              Successors
      and Assigns.

            	
              14

            
	
              SECTION
      1.9.

            	
              Separability
      Clause.

            	
              14

            
	
              SECTION
      1.10.

            	
              Benefits
      of Indenture.

            	
              14

            
	
              SECTION
      1.11.

            	
              Governing
      Law.

            	
              14

            
	
              SECTION
      1.12.

            	
              Submission
      to Jurisdiction.

            	
              14

            
	
              SECTION
      1.13.

            	
              Non-Business
      Days.

            	
              15

            
	 
      	 
      	 
      
	
              ARTICLE
      II Security Forms

            	
              15

            
	 
      	 
      
	
              SECTION
      2.1.

            	
              Form
      of Security.

            	
              15

            
	
              SECTION
      2.2.

            	
              Restricted
      Legend.

            	
              20

            
	
              SECTION
      2.3.

            	
              Form
      of Trustee’s Certificate of Authentication.

            	
              22

            
	
              SECTION
      2.4.

            	
              Temporary
      Securities.

            	
              23

            
	
              SECTION
      2.5.

            	
              Definitive
      Securities.

            	
              23

            
	 
      	 
      	 
      
	
              ARTICLE
      III The Securities

            	
              23

            
	 
      	 
      
	
              SECTION
      3.1.

            	
              Payment
      of Principal and Interest.

            	
              23

            
	
              SECTION
      3.2.

            	
              Denominations.

            	
              26

            
	
              SECTION
      3.3.

            	
              Execution,
      Authentication, Delivery and Dating.

            	
              26

            
	
              SECTION
      3.4.

            	
              Global
      Securities.

            	
              27

            
	
              SECTION
      3.5.

            	
              Registration,
      Transfer and Exchange Generally.

            	
              29

            
	
              SECTION
      3.6.

            	
              Mutilated,
      Destroyed, Lost and Stolen Securities.

            	
              30

            
	
              SECTION
      3.7.

            	
              Persons
      Deemed Owners.

            	
              31

            
	
              SECTION
      3.8.

            	
              Cancellation.

            	
              31

            
	
              SECTION
      3.9.

            	
              Reserved.

            	
              32

            
	
              SECTION
      3.10.

            	
              Reserved.

            	
              32

            
	
              SECTION
      3.11.

            	
              Agreed
      Tax Treatment.

            	
              32

            
	
              SECTION
      3.12.

            	
              CUSIP
      Numbers.

            	
              32

            
	 
      	 
      	 
      
	
              ARTICLE
      IV Satisfaction and Discharge

            	
              32

            
	 
      	 
      
	
              SECTION
      4.1.

            	
              Satisfaction
      and Discharge of Indenture.

            	
              32

            
	
              SECTION
      4.2.

            	
              Application
      of Trust Money.

            	
              33

            
	 
      	 
      	 
      
	
              ARTICLE
      V Remedies

            	
              34

            


    

    


    


    
      
        
           


        

        
          i

          
            

          

        

        
           


        

      

    

    


    


    
      	
              SECTION
      5.1.

            	
              Events
      of Default.

            	
              34

            
	
              SECTION
      5.2.

            	
              Acceleration
      of Maturity; Rescission and Annulment.

            	
              35

            
	
              SECTION
      5.3.

            	
              Collection
      of Indebtedness and Suits for Enforcement by Trustee.

            	
              36

            
	
              SECTION
      5.4.

            	
              Trustee
      May File Proofs of Claim.

            	
              37

            
	
              SECTION
      5.5.

            	
              Trustee
      May Enforce Claim Without Possession of Securities.

            	
              37

            
	
              SECTION
      5.6.

            	
              Application
      of Money Collected.

            	
              37

            
	
              SECTION
      5.7.

            	
              Limitation
      on Suits.

            	
              38

            
	
              SECTION
      5.8.

            	
              Unconditional
      Right of Holders to Receive Principal, Premium, if any, and Interest,
      Direct Action by Holders of Preferred Securities.

            	
              38

            
	
              SECTION
      5.9.

            	
              Restoration
      of Rights and Remedies.

            	
              38

            
	
              SECTION
      5.10.

            	
              Rights
      and Remedies Cumulative.

            	
              39

            
	
              SECTION
      5.11.

            	
              Delay
      or Omission Not Waiver.

            	
              39

            
	
              SECTION
      5.12.

            	
              Control
      by Holders.

            	
              39

            
	
              SECTION
      5.13.

            	
              Waiver
      of Past Defaults.

            	
              39

            
	
              SECTION
      5.14.

            	
              Undertaking
      for Costs.

            	
              40

            
	
              SECTION
      5.15.

            	
              Waiver
      of Usury, Stay or Extension Laws.

            	
              40

            
	 
      	 
      	 
      
	
              ARTICLE
      VI The Trustee

            	
              41

            
	 
      	 
      
	
              SECTION
      6.1.

            	
              Corporate
      Trustee Required.

            	
              41

            
	
              SECTION
      6.2.

            	
              Certain
      Duties and Responsibilities.

            	
              41

            
	
              SECTION
      6.3.

            	
              Notice
      of Defaults.

            	
              43

            
	
              SECTION
      6.4.

            	
              Certain
      Rights of Trustee.

            	
              43

            
	
              SECTION
      6.5.

            	
              May
      Hold Securities.

            	
              45

            
	
              SECTION
      6.6.

            	
              Compensation;
      Reimbursement; Indemnity.

            	
              45

            
	
              SECTION
      6.7.

            	
              Resignation
      and Removal; Appointment of Successor.

            	
              46

            
	
              SECTION
      6.8.

            	
              Acceptance
      of Appointment by Successor.

            	
              47

            
	
              SECTION
      6.9.

            	
              Merger,
      Conversion, Consolidation or Succession to Business.

            	
              47

            
	
              SECTION
      6.10.

            	
              Not
      Responsible for Recitals or Issuance of Securities.

            	
              48

            
	
              SECTION
      6.11.

            	
              Appointment
      of Authenticating Agent.

            	
              48

            
	 
      	 
      	 
      
	
              ARTICLE
      VII Holder’s Lists and Reports by Company

            	
              49

            
	 
      	 
      
	
              SECTION
      7.1.

            	
              Company
      to Furnish Trustee Names and Addresses of Holders.

            	
              49

            
	
              SECTION
      7.2.

            	
              Preservation
      of Information, Communications to Holders.

            	
              50

            
	
              SECTION
      7.3.

            	
              Reports
      by Company and Trustee.

            	
              50

            
	 
      	 
      	 
      
	
              ARTICLE
      VIII Consolidation, Merger, Conveyance, Transfer or Lease

            	
              51

            
	 
      	 
      
	
              SECTION
      8.1.

            	
              Company
      May Consolidate, Etc., Only on Certain Terms.

            	
              51

            
	
              SECTION
      8.2.

            	
              Successor
      Company Substituted.

            	
              52

            
	 
      	 
      	 
      
	
              ARTICLE
      IX Supplemental Indentures

            	
              52

            
	 
      	 
      
	
               
      SECTION 9.1.

            	
              Supplemental
      Indentures without Consent of Holders.

            	
              52

            
	
              SECTION
      9.2.

            	
              Supplemental
      Indentures with Consent of Holders.

            	
              53

            
	
              SECTION
      9.3.

            	
              Execution
      of Supplemental Indentures.

            	
              54

            
	
              SECTION
      9.4.

            	
              Effect
      of Supplemental Indentures.

            	
              54

            
	
              SECTION
      9.5.

            	
              Reference
      in Securities to Supplemental Indentures.

            	
              54

            
	 
      	 
      	 
      


    

    


    


    
      
        
           


        

        
          ii

          
            

          

        

        
           


        

      

    

    


    


    
      	
              ARTICLE
      X Covenants

            	
              55

            
	 
      	 
      
	
              SECTION
      10.1.

            	
              Payment
      of Principal, Premium, if any, and Interest.

            	
              55

            
	
              SECTION
      10.2.

            	
              Money
      for Security Payments to be Held in Trust.

            	
              55

            
	
              SECTION
      10.3.

            	
              Statement
      as to Compliance.

            	
              56

            
	
              SECTION
      10.4.

            	
              Calculation
      Agent.

            	
              56

            
	
              SECTION
      10.5.

            	
              Additional
      Tax Sums.

            	
              57

            
	
              SECTION
      10.6.

            	
              Additional
      Covenants.

            	
              57

            
	
              SECTION
      10.7.

            	
              Waiver
      of Covenants.

            	
              59

            
	
              SECTION
      10.8.

            	
              Treatment
      of Securities.

            	
              59

            
	
              SECTION
      10.9.

            	
              Financial
      Covenants

            	
              59

            
	 
      	 
      	 
      
	
              ARTICLE
      XI Redemption of Securities

            	
              59

            
	 
      	 
      
	
              SECTION
      11.1.

            	
              Optional
      Redemption.

            	
              59

            
	
              SECTION
      11.2.

            	
              Special
      Event Redemption.

            	
              60

            
	
              SECTION
      11.3.

            	
              Election
      to Redeem; Notice to Trustee.

            	
              60

            
	
              SECTION
      11.4.

            	
              Selection
      of Securities to be Redeemed.

            	
              60

            
	
              SECTION
      11.5.

            	
              Notice
      of Redemption.

            	
              61

            
	
              SECTION
      11.6.

            	
              Deposit
      of Redemption Price.

            	
              61

            
	
              SECTION
      11.7.

            	
              Payment
      of Securities Called for Redemption.

            	
              62

            
	 
      	 
      	 
      
	
              ARTICLE
      XII Subordination and Ranking of Securities

            	
              62

            
	 
      	 
      
	
              SECTION
      12.1.

            	
              Securities
      Subordinate to Senior Debt.

            	
              62

            
	
              SECTION
      12.2.

            	
              No
      Payment When Senior Debt in Default; Payment Over of Proceeds Upon
      Dissolution, Etc.

            	
              63

            
	
              SECTION
      12.3.

            	
              Payment
      Permitted If No Default.

            	
              64

            
	
              SECTION
      12.4.

            	
              Subrogation
      to Rights of Holders of Senior Debt.

            	
              64

            
	
              SECTION
      12.5.

            	
              Provisions
      Solely to Define Relative Rights.

            	
              65

            
	
              SECTION
      12.6.

            	
              Trustee
      to Effectuate Subordination.

            	
              65

            
	
              SECTION
      12.7.

            	
              No
      Waiver of Subordination Provisions.

            	
              65

            
	
              SECTION
      12.8.

            	
              Notice
      to Trustee.

            	
              66

            
	
              SECTION
      12.9.

            	
              Reliance
      on Judicial Order or Certificate of Liquidating Agent.

            	
              66

            
	
              SECTION
      12.10.

            	
              Trustee
      Not Fiduciary for Holders of Senior Debt.

            	
              67

            
	
              SECTION
      12.11.

            	
              Rights
      of Trustee as Holder of Senior Debt; Preservation of Trustee’s
      Rights.

            	
              67

            
	
              SECTION
      12.12.

            	
              Article
      Applicable to Paying Agents

            	
              67

            


    

    


    SCHEDULES

     

    Schedule
A–Determination of LIBOR

     

    Exhibit
A–Form of Officer’s Financial Certificate

     

    
      Exhibit
B–Form of Officers’ Certificate pursuant to Section 10.3

    

     

     

    
      
        
           


        

        
          iii

          
            

          

        

        
           


        

      

    

    


    Amended And Restated Junior
Subordinated Indenture, dated as of October 23, 2009 (this
“Indenture”), between
Anthracite Capital,
Inc., a Maryland corporation (the “Company”), and Wilmington Trust
Company, a Delaware
banking corporation, as Trustee (in such capacity, the “Trustee”).

     

    Recitals
of the Company

     

    Whereas, the Company
has duly authorized the execution and delivery of this Indenture to provide for
the issuance of the Company’s junior subordinated notes (the “Securities”) issued to
evidence loans made to the Company of the proceeds from the issuance by
Anthracite Capital Trust III, a Delaware statutory trust (the “Trust”), of undivided
preferred beneficial interests in the assets of the Trust (the “Preferred Securities”) and
undivided common beneficial interests in the assets of the Trust (the “Common Securities” and,
collectively with the Preferred Securities, the “Trust Securities”), and to
provide the terms and conditions upon which the Securities are to be
authenticated, issued and delivered; and

     

    Whereas, all things
necessary to make this Indenture a valid agreement of the Company, in accordance
with its terms, have been done.

     

    Now, Therefore, this
Indenture Witnesseth:

     

    For
and in consideration of the premises and the purchase of the Securities by the
Holders (defined below) thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as
follows:

     

     

    ARTICLE
I

     

    Definitions
and Other Provisions of General Application

     

    SECTION
1.1.       Definitions.

     

    For
all purposes of this Indenture, except as otherwise expressly provided or unless
the context otherwise requires:

     

    (a)           the
terms defined in this Article I have the
meanings assigned to them in this Article
I;

     

    (b)           the
words “include,” “includes” and “including” shall be deemed to be followed by
the phrase “without limitation”;

     

    (c)           all
accounting terms used but not otherwise defined herein have the meanings
assigned to them in accordance with GAAP;

     

    (d)           unless
the context otherwise requires, any reference to an “Article,” “Section,”
“Schedule” or “Exhibit” refers to an Article, Section, Schedule or Exhibit, as
the case may be, of this Indenture;

     

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    
 

    (e)           the
words “hereby,” “herein,” “hereof” and “hereunder” and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision;

     

    (f)           a
reference to the singular includes the plural and vice versa; and

     

    (g)           the
masculine, feminine or neuter genders used herein shall include the masculine,
feminine and neuter genders.

     

    “Act” when used with respect
to any Holder, has the meaning specified in Section
1.4(a).

     

    “Administrative Trustee”
means, with respect to the Trust, each Person identified as an “Administrative Trustee” in
the Trust Agreement, solely in its capacity as Administrative Trustee of the
Trust under the Trust Agreement and not in its individual capacity, or its
successor in interest in such capacity, or any successor Administrative Trustee
appointed as therein provided.

     

    “Additional Interest” means
the interest, if any, that shall accrue on any amounts payable on the
Securities, the payment of which has not been made on the applicable Interest
Payment Date and which shall accrue at the rate per annum specified or
determined as specified in such Security, in each case to the extent legally
enforceable.

     

    “Additional Tax Sums” has the
meaning specified in Section
10.5.

     

    “Additional Taxes” means
taxes, duties or other governmental charges imposed on the Trust as a result of
a Tax Event (which, for the sake of clarity, does not include amounts required
to be deducted or withheld by the Trust from payments made by the Trust to or
for the benefit of the Holder of, or any Person that acquires a beneficial
interest in, the Securities).

     

    “Affiliate” of any specified
Person means any other Person directly or indirectly controlling or controlled
by or under direct or indirect common control with such specified
Person.  For the purposes of this definition, “control,” when used
with respect to any specified Person, means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
“controlling” and “controlled” have meanings correlative to the
foregoing.

     

    “Applicable Depositary
Procedures” means, with respect to any transfer or transaction involving
a Global Security or beneficial interest therein, the rules and procedures of
the Depositary for such Security, in each case to the extent applicable to such
transaction and as in effect from time to time.

     

    “Authenticating Agent” means
any Person authorized by the Trustee pursuant to Section 6.11 to act
on behalf of the Trustee to authenticate the Securities.

     

    “Board of Directors” means
the board of directors of the Company or any duly authorized committee of that
board.

     

    


    
      
        
           


        

        
          2

          
            

          

        

        
           


        

      

    

     

     

    “Board Resolution” means a
copy of a resolution certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification.

     

    “Business Day” means any day
other than (i) a Saturday or Sunday, (ii) a day on which banking institutions in
the City of New York are authorized or required by law or executive order to
remain closed or (iii) a day on which the Corporate Trust Office of the Trustee
is closed for business.

     

    “Calculation Agent” has the
meaning specified in Section
10.4(a).

     

    “Common Securities” has the
meaning specified in the first recital of this Indenture.

     

    “Code” means the Internal
Revenue Code of 1986, as amended.

     

    “Commission” has the meaning
specified in Section
7.3(b).

     

    “Company” means the Person
named as the “Company”
in the first paragraph of this Indenture until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter “Company”
shall mean such successor Person.

     

    “Company Request” and “Company Order” mean,
respectively, the written request or order signed in the name of the Company by
its Chairman of the Board of Directors, its Vice Chairman of the Board of
Directors, its Chief Executive Officer, President or a Vice President, and by
its Chief Financial Officer, its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.

     

    “Corporate Trust Office”
means the principal office of the Trustee at which at any particular time its
corporate trust business shall be administered, which office at the date of this
Indenture is located at Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890-0001, Attn:  Corporate Capital
Markets.

     

    “Debt” means, with respect to
any Person, whether recourse is to all or a portion of the assets of such
Person, whether currently existing or hereafter incurred and whether or not
contingent and without duplication, (i) every obligation of such Person for
money borrowed; (ii) every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including obligations incurred
in connection with the acquisition of property, assets or businesses; (iii)
every reimbursement obligation of such Person with respect to letters of credit,
bankers’ acceptances or similar facilities issued for the account of such
Person; (iv) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts payable or
other accrued liabilities arising in the ordinary course of business); (v) every
capital lease obligation of such Person; (vi) all indebtedness of such Person,
whether incurred on or prior to the date of this Indenture or thereafter
incurred, for claims in respect of derivative products, including interest rate,
foreign exchange rate and commodity forward contracts, options and swaps and
similar arrangements; (vii) every obligation of the type referred to in clauses
(i) through (vi) of another Person and all dividends of another Person the
payment of which, in either case, such Person has guaranteed or is responsible
or liable for, directly or indirectly, as obligor or otherwise; and (viii) any
renewals,

     

    


    
      
        
           


        

        
          3

          
            

          

        

        
           


        

      

    

     

     

    extensions,
refundings, amendments or modifications of any obligation of the types referred
to in clauses (i) through (vii).

     

    “Defaulted Interest” has the
meaning specified in Section
3.1(c).

     

    “Delaware Trustee” means,
with respect to the Trust, the Person identified as the “Delaware Trustee” in
the Trust Agreement, solely in its capacity as Delaware Trustee of the Trust
under the Trust Agreement and not in its individual capacity, or its successor
in interest in such capacity, or any successor Delaware Trustee appointed as
therein provided.

     

    “Depositary” means an
organization registered as a clearing agency under the Exchange Act that is
designated as Depositary by the Company or any successor thereto.  DTC
will be the initial Depositary.

     

    “Depositary Participant”
means a broker, dealer, bank, other financial institution or other Person for
whom from time to time a Depositary effects book-entry transfers and pledges of
securities deposited with the Depositary.

     

    “Distributions” means amounts payable in
respect of the Trust Securities as provided in the Trust Agreement and referred
to therein as “Distributions.”

     

    “Dollar” or “$” means the currency of the
United States of America that, as at the time of payment, is legal tender for
the payment of public and private debts.

     

    “DTC” means The Depository
Trust Company, a New York corporation, or any successor thereto.

     

    “EDGAR” has the meaning
specified in Section
7.3(d).

     

    “Equity Interests” means (a)
the partnership interests (general or limited) in a partnership, (b) the
membership interests in a limited liability company and (c) the shares or stock
interests (both common stock and preferred stock) in a corporation.

     

    “Event of Default” has the
meaning specified in Section
5.1.

     

    “Exchange Act” means the
Securities Exchange Act of 1934 or any statute successor thereto, in each case
as amended from time to time.

     

    “Expiration Date” has the
meaning specified in Section
1.4(h).

     

    “Final Fixed Rate” has the
meaning specified in the form of Security set forth in Section
2.1.

     

    “Final Fixed Rate Period” has
the meaning specified in the form of Security set forth in Section
2.1.

     

    “Fixed Rate Periods” has the
meaning specified in the form of Security set forth in Section
2.1.

     

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

     

    “GAAP” means United States
generally accepted accounting principles, consistently applied, from time to
time in effect.

     

    “Global Security” means a
Security that evidences all or part of the Securities, the ownership and
transfers of which shall be made through book entries by a
Depositary.

     

    “Government Obligation” means
(a) any security that is (i) a direct obligation of the United States of America
of which the full faith and credit of the United States of America is pledged or
(ii) an obligation of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America or the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case of clause (i) or (ii), is not
callable or redeemable at the option of the issuer thereof, and (b) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any Government Obligation that is
specified in clause (a) above and held by such bank for the account of the
holder of such depositary receipt, or with respect to any specific payment of
principal of or interest on any Government Obligation that is so specified and
held, provided, that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt from
any amount received by the custodian in respect of the Government Obligation or
the specific payment of principal or interest evidenced by such depositary
receipt.

     

    “Holder” means a Person in
whose name a Security is registered in the Securities Register.

     

    “Indenture” means this
instrument as originally executed or as it may from time to time be amended or
supplemented by one or more amendments or indentures supplemental hereto entered
into pursuant to the applicable provisions hereof.

     

    “Initial Fixed Rate” has the
meaning specified in the form of Security set forth in Section
2.1.

     

    “Initial Fixed Rate Period”
has the meaning specified in the form of Security set forth in Section
2.1.

     

    “Interest Payment Date” means
the date hereof and thereafter March 30, June 30, September 30 and December 30
of each year during the term of this Indenture, commencing on December 30,
2009.

     

    “Investment Company Act”
means the Investment Company Act of 1940 or any successor statute thereto, in
each case as amended from time to time.

     

    “Investment Company Event”
means the receipt by the Company of an Opinion of Counsel experienced in such
matters to the effect that, as a result of the occurrence of a change in law or
regulation (including any announced prospective change) or a written change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority, there is more than an
insubstantial risk that the Company is or, within ninety (90) days of the date
of such opinion will be, considered an “investment company” that is required to
be registered under the Investment Company Act, which change or
prospective

     

    


    
      
        
           


        

        
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    change
becomes effective or would become effective, as the case may be, on or after the
date of the issuance of the Securities.

     

    “LIBOR” has the meaning
specified in Schedule
A.

     

    “LIBOR Business Day” has the
meaning specified in Schedule
A.

     

    “LIBOR Determination Date”
has the meaning specified in Schedule
A.

     

    “Liquidation Amount” has the
meaning specified in the Trust Agreement.

     

    “Maturity” means, when used
with respect to any Security, the date on which the principal of such Security
or any installment of principal becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.

     

    “Notice of Default” means a
written notice of the kind specified in Section
5.1(c).

     

    “Officers’ Certificate” means
a certificate signed by the Chairman of the Board, a Vice Chairman of the Board,
the Chief Executive Officer, the President or a Vice President, and by the Chief
Financial Officer, the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company and delivered to the Trustee.

     

    “Opinion of Counsel” means a
written opinion of counsel, who may be counsel for or an employee of the Company
or any Affiliate of the Company.

     

    “Optional Redemption Price”
has the meaning set forth in Section
11.1.

     

    “Original Issue Date” means
the date of original issuance of each Security.

     

    “Original Notes” has the
meaning set forth in Section
3.1(b)(i).

     

    “Outstanding” means, when
used in reference to any Securities, as of the date of determination, all
Securities theretofore authenticated and delivered under this Indenture,
except:

     

    (i)           Securities
theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;

     

    (ii)           Securities
for whose payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if the
Company and/or its Affiliates shall act as its own Paying Agent) for the Holders
of such Securities; provided, that, if such Securities
are to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been made;
and

     

    (iii)          Securities
that have been paid or in substitution for or in lieu of which other Securities
have been authenticated and delivered pursuant to the provisions of
this

     

    


    
      
        
           


        

        
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    Indenture,
unless proof satisfactory to the Trustee is presented that any such Securities
are held by Holders in whose hands such Securities are valid, binding and legal
obligations of the Company;

     

    provided, that in determining
whether the Holders of the requisite principal amount of Outstanding Securities
have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor shall be
disregarded and deemed not to be Outstanding unless the Company shall hold all
Outstanding Securities, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities that a Responsible Officer of the
Trustee actually knows to be so owned shall be so
disregarded.  Securities so owned that have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee’s right so to act with respect to such Securities and
that the pledgee is not the Company or any other obligor upon the Securities or
any Affiliate of the Company or such other obligor.  Notwithstanding
anything herein to the contrary, Securities initially issued to the Trust that
are owned by the Trust shall be deemed to be Outstanding notwithstanding the
ownership by the Company or an Affiliate of any beneficial interest in the
Trust.

     

    “Paying Agent” means the Trustee or
any Person authorized by the Company to pay the principal of or any premium or
interest on, or other amounts in respect of, any Securities on behalf of the
Company.

     

    “Person” means a legal
person, including any individual, corporation, estate, partnership, joint
venture, association, joint stock company, company, limited liability company,
trust, unincorporated association, government, or any agency or political
subdivision thereof, or any other entity of whatever nature.

     

    “Place of Payment” means,
with respect to the Securities, the Corporate Trust Office of the
Trustee.

     

    “Preferred Securities” has
the meaning specified in the first recital of this Indenture.

     

    “Predecessor Security” of any
particular Security means every previous Security evidencing all or a portion of
the same debt as that evidenced by such particular Security.  For the
purposes of this definition, any security authenticated and delivered under
Section 3.6 in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen
Security.

     

    “Proceeding” has the meaning
specified in Section
12.2(b).

     

    “Property Trustee” means the
Person identified as the “Property Trustee” in the Trust Agreement, solely in
its capacity as Property Trustee of the Trust under the Trust Agreement and not
in its individual capacity, or its successor in interest in such capacity, or
any successor Property Trustee appointed as therein provided.

     

    


    
      
        
           


        

        
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    “Redemption Date” means, when
used with respect to any Security to be redeemed, the date fixed for such
redemption by or pursuant to this Indenture.

     

    “Redemption Price” means,
when used with respect to any Security to be redeemed, in whole or in part, the
Special Redemption Price or the Optional Redemption Price, as applicable, at
which such Security or portion thereof is to be redeemed as fixed by or pursuant
to this Indenture.

     

    “Reference Banks” has the
meaning specified in Schedule
A.

     

    “Regular Record Date” for the
interest payable on any Interest Payment Date with respect to the Securities
means the date that is fifteen (15) days preceding such Interest Payment Date
(whether or not a Business Day).

     

    “Responsible Officer” means,
when used with respect to the Trustee, the officer in the Corporate Capital
Markets division at the Corporate Trust Office of the Trustee having direct
responsibility for the administration of this Indenture.

     

    “Rights Plan” means a plan of
the Company providing for the issuance by the Company to all holders of its
Equity Interests of rights entitling the holders thereof to subscribe for or
purchase Equity Interests or any class or series of Equity Interests in the
Company which rights (i) are deemed to be transferred with such Equity Interests
and (ii) are also issued in respect of future issuances of such Equity
Interests, in each case until the occurrence of a specified event or
events.

     

    “Securities” or “Security” means any debt
securities or debt security, as the case may be, authenticated and delivered
under this Indenture.

     

    “Securities Act” means the
Securities Act of 1933 or any successor statute thereto, in each case as amended
from time to time.

     

    “Securities Register” and
“Securities Registrar”
have the respective meanings specified in Section
3.5(a).

     

    “Senior Debt” means the
principal of and any premium and interest on (including interest accruing on or
after the filing of any petition in bankruptcy or for reorganization relating to
the Company, whether or not such claim for post-petition interest is allowed in
such proceeding) all Debt of the Company, whether incurred on or prior to the
date of this Indenture or thereafter incurred, unless it is provided in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding, that such obligations are not superior in right of payment to the
Securities issued under this Indenture; provided, that Senior Debt shall not be deemed to include
any other debt securities (and guarantees,
if any, in respect of such debt securities) issued to any trust other than the
Trust (or a trustee of any such trust), partnership or other entity affiliated
with the Company that is a financing vehicle of the Company (a “financing
entity”) in connection with the issuance by such financing entity of equity
securities or other securities, pursuant to an instrument that ranks
pari passu with or junior in right of payment to this
Indenture.

     

    


    
      
        
           


        

        
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    “Special Event” means the
occurrence of an Investment Company Event or a Tax Event.

     

    “Special Record Date” for the
payment of any Defaulted Interest means a date fixed by the Trustee pursuant to
Section
3.1(c)(i).

     

    “Special Redemption Price” has
the meaning set forth in Section
11.2.

     

    “Stated Maturity” means March
30, 2036.

     

    “Subsidiary” of a Person
means (a) any corporation more than 50% of the outstanding securities having
ordinary voting power of which shall at the time be owned or controlled,
directly or indirectly, by such Person and/or by one or more of its Subsidiaries
or (b) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be owned or controlled,
directly or indirectly, by such Person and/or by one or more of its
Subsidiaries.  Unless otherwise expressly provided, all references
herein to a “Subsidiary” shall mean a Subsidiary of the Company.

     

    “Tax Event” means the receipt
by the Company of an Opinion of Counsel experienced in such matters to the
effect that, as a result of (a) any amendment to or change (including any
announced prospective change) in the laws or any regulations thereunder of the
United States or any political subdivision or taxing authority thereof or
therein or (b) any judicial decision or any official administrative
pronouncement (including any private letter ruling, technical advice memorandum
or field service advice) or regulatory procedure, including any notice or
announcement of intent to adopt any such pronouncement or procedure (an “Administrative Action”),
regardless of whether such judicial decision or Administrative Action is issued
to or in connection with a proceeding involving the Company or the Trust and
whether or not subject to review or appeal, which amendment, change, judicial
decision or Administrative Action is enacted, promulgated or announced, in each
case, on or after the date of issuance of the Securities, there is more than an
insubstantial risk that (i) the Trust is, or will be within ninety (90) days of
the date of such opinion, subject to United States federal income tax with
respect to income received or accrued on the Securities, (ii) interest payable
by the Company on the Securities is not, or within ninety (90) days of the date
of such opinion, will not be, deductible by the Company, in whole or in part,
for United States federal income tax purposes, or (iii) the Trust is, or will be
within ninety (90) days of the date of such opinion, subject to more than a de
minimis amount of other taxes, duties or other governmental
charges.

     

    “Trust” has the meaning
specified in the first recital of this Indenture.

     

    “Trust Agreement” means the
Amended and Restated Trust Agreement executed and delivered by the Company, the
Property Trustee, Wilmington Trust Company, a Delaware banking corporation, as
Delaware Trustee and the Administrative Trustees named therein,
contemporaneously with the execution and delivery of this Indenture, for the
benefit of the holders of the Trust Securities, as amended or supplemented from
time to time.

     

    “Trustee” means the Person
named as the “Trustee” in the first paragraph of this instrument, solely in its
capacity as such and not in its individual capacity, until a
successor

     

    


    
      
        
           


        

        
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    Trustee
shall have become such pursuant to the applicable provisions of this Indenture,
and, thereafter, “Trustee” shall mean or include each Person who is then a
Trustee hereunder.

     

    “Trust Indenture Act” means
the Trust Indenture Act of 1939, as amended and as in effect on the date as of
this Indenture.

     

    “Trust Securities” has the
meaning specified in the first recital of this Indenture.

     

    “Variable Rate” has the
meaning in the form of Security set forth in Section
2.1.

     

    SECTION
1.2.       Compliance Certificate and
Opinions.

     

    (a)        Upon
any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall, if requested by the
Trustee, furnish to the Trustee an Officers’ Certificate stating that all
conditions precedent (including covenants compliance with which constitutes a
condition precedent), if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent (including
covenants compliance with which constitutes a condition precedent), if any, have
been complied with.

     

    (b)        Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than the certificate provided pursuant to
Section 10.3)
shall include:

     

    (i)           a
statement by each individual signing such certificate or opinion that such
individual has read such covenant or condition and the definitions herein
relating thereto;

     

    (ii)           a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions of such individual contained in such
certificate or opinion are based;

     

    (iii)          a
statement that, in the opinion of such individual, he or she has made such
examination or investigation as is necessary to enable him or her to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and

     

    (iv)          a
statement as to whether, in the opinion of such individual, such condition or
covenant has been complied with.

     

    SECTION
1.3.       Forms of Documents Delivered to
Trustee.

     

    (a)        In
any case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.

     

    


    
      
        
           


        

        
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    (b)        Any
certificate or opinion of an officer of the Company may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or after reasonable inquiry should know,
that the certificate or opinion or representations with respect to matters upon
which his or her certificate or opinion is based are erroneous.  Any
such certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with respect to
such factual matters is in the possession of the Company, unless such counsel
knows, or after reasonable inquiry should know, that the certificate or opinion
or representations with respect to such matters are erroneous.

     

    (c)        Where
any Person is required to make, give or execute two or more applications,
requests, consents, certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be consolidated and form one
instrument.

     

    (d)        Whenever,
subsequent to the receipt by the Trustee of any Board Resolution, Officers’
Certificate, Opinion of Counsel or other document or instrument, a clerical,
typographical or other inadvertent or unintentional error or omission shall be
discovered therein, a new document or instrument may be substituted therefor in
corrected form with the same force and effect as if originally received in the
corrected form and, irrespective of the date or dates of the actual execution
and/or delivery thereof, such substitute document or instrument shall be deemed
to have been executed and/or delivered as of the date or dates required with
respect to the document or instrument for which it is
substituted.  Without limiting the generality of the foregoing, any
Securities issued under the authority of such defective document or instrument
shall nevertheless be the valid obligations of the Company entitled to the
benefits of this Indenture equally and ratably with all other Outstanding
Securities.

     

    SECTION
1.4.       Acts of Holders.

     

    (a)        Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given to or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent thereof duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments (including any appointment
of an agent) is or are delivered to the Trustee, and, where it is hereby
expressly required, to the Company.  Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the “Act”
of the Holders signing such instrument or instruments.  Proof
of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section
1.4.

     

    (b)        The
fact and date of the execution by any Person of any such instrument or writing
may be proved by the affidavit of a witness of such execution or by the
certificate of any notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him or her the execution thereof.  Where
such execution is by a Person acting in other than his or her individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his or her authority.  The fact

     

    


    
      
        
           


        

        
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    and
date of the execution by any Person of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any other
manner that the Trustee deems sufficient and in accordance with such reasonable
rules as the Trustee may determine.

     

    (c)        The
ownership of Securities shall be proved by the Securities Register.

     

    (d)        Any
request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Security shall bind every future Holder of the same
Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such
Security.

     

    (e)        Without
limiting the foregoing, a Holder entitled to take any action hereunder with
regard to any particular Security may do so with regard to all or any part of
the principal amount of such Security or by one or more duly appointed agents
each of which may do so pursuant to such appointment with regard to all or any
part of such principal amount.

     

    (f)        
Except as set forth in paragraph (g) of this Section 1.4, the
Company may set any day as a record date for the purpose of determining the
Holders of Outstanding Securities entitled to give, make or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or taken by Holders of
Securities.  If any record date is set pursuant to this paragraph, the
Holders of Outstanding Securities on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided, that no such action
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date (as defined in Section 1.4(h)) by
Holders of the requisite principal amount of Outstanding Securities on such
record date.  Nothing in this paragraph shall be construed to prevent
the Company from setting a new record date for any action for which a record
date has previously been set pursuant to this paragraph (whereupon the record
date previously set shall automatically and with no action by any Person be
canceled and of no effect).  Promptly after any record date is set
pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of
Securities in the manner set forth in Section
1.6.

     

    (g)        The
Trustee may set any day as a record date for the purpose of determining the
Holders of Outstanding Securities entitled to join in the giving or making of
(i) any Notice of Default, (ii) any declaration of acceleration or rescission or
annulment thereof referred to in Section 5.2, (iii)
any request to institute proceedings referred to in Section 5.7(b) or
(iv) any direction referred to in Section
5.12.  If any record date is set pursuant to this paragraph,
the Holders of Outstanding Securities on such record date, and no other Holders,
shall be entitled to join in such notice, declaration, request or direction,
whether or not such Holders remain Holders after such record date; provided, that no such action
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities on such record date.  Nothing in this paragraph shall be
construed to prevent the Trustee from setting a new record date for any action
for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no action
by any Person be canceled and of no effect).  Promptly
after

     

    


    
      
        
           


        

        
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    any
record date is set pursuant to this paragraph, the Trustee, at the Company’s
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Company in writing and to
each Holder of Securities in the manner set forth in Section
1.6.

     

    (h)        With
respect to any record date set pursuant to paragraph (f) or (g) of this Section 1.4, the
party hereto that sets such record date may designate any day as the “Expiration
Date” and from
time to time may change the Expiration Date to any earlier or later day;
provided, that no such
change shall be effective unless notice of the proposed new Expiration Date is
given to the other party hereto in writing, and to each Holder of Securities in
the manner set forth in Section 1.6, on or
prior to the existing Expiration Date.  If an Expiration Date is not
designated with respect to any record date set pursuant to this Section 1.4, the
party hereto that set such record date shall be deemed to have initially
designated the ninetieth (90th) day
after such record date as the Expiration Date with respect thereto, subject to
its right to change the Expiration Date as provided in this
paragraph.  Notwithstanding the foregoing, no Expiration Date shall be
later than the one hundred eightieth (180th) day
after the applicable record date.

     

    SECTION
1.5.       Notices, Etc. to Trustee and
Company.

     

    Any
request, demand, authorization, direction, notice, consent, waiver, Act of
Holders, or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with:

     

    (a)        the
Trustee by any Holder, any holder of Preferred Securities or the Company shall
be sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with and received by the Trustee at its Corporate Trust Office,
or

     

    (b)        the
Company by the Trustee, any Holder or any holder of Preferred Securities shall
be sufficient for every purpose hereunder if in writing and mailed, first class,
postage prepaid, to the Company addressed to it at 40 East 52nd
Street, New York, New York 10022, Attention: Chief Financial Officer, or at any
other address previously furnished in writing to the Trustee by the
Company.

     

    SECTION
1.6.       Notice to Holders;
Waiver.

     

    Where
this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first class, postage prepaid, to each Holder affected by such event
to the address of such Holder as it appears in the Securities Register, not
later than the latest date (if any), and not earlier than the earliest date (if
any), prescribed for the giving of such notice.  If, by reason of the
suspension of or irregularities in regular mail service or for any other reason,
it shall be impossible or impracticable to mail notice of any event to Holders
when said notice is required to be given pursuant to any provision of this
Indenture, then any manner of giving such notice as shall be satisfactory to the
Trustee shall be deemed to be a sufficient giving of such notice.  In
any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other
Holders.  Where this Indenture provides for notice in any manner, such
notice

     

    


    
      
        
           


        

        
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    may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice.  Waivers of notice by Holders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.

     

    SECTION
1.7.       Effect of Headings and Table of
Contents.

     

    The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction of this
Indenture.

     

    SECTION
1.8.       Successors and
Assigns.

     

    This
Indenture shall be binding upon and shall inure to the benefit of any successor
to the Company and the Trustee, including any successor by operation of
law.  Except in connection with a transaction involving the Company
that is permitted under Article VIII and
pursuant to which the assignee agrees in writing to perform the Company’s
obligations hereunder, the Company shall not assign its obligations
hereunder.

     

    SECTION
1.9.       Separability
Clause.

     

    If
any provision in this Indenture or in the Securities shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby, and there shall
be deemed substituted for the provision at issue a valid, legal and enforceable
provision as similar as possible to the provision at issue.

     

    SECTION
1.10.     Benefits of
Indenture.

     

    Nothing
in this Indenture or in the Securities, express or implied, shall give to any
Person, other than the parties hereto and their successors and assigns, the
holders of Senior Debt and the Holders of the Securities and, to the extent
expressly provided in Sections 5.2, 5.8, 5.9, 5.11, 5.13, 9.2 and 10.7, the holders of
Preferred Securities, any benefit or any legal or equitable right, remedy or
claim under this Indenture.

     

    SECTION
1.11.     Governing Law.

     

    This
Indenture and the rights and obligations of each of the Holders, the Company and
the Trustee shall be construed and enforced in accordance with and governed by
the laws of the State of New York without reference to its conflict of laws
provisions (other than Section 5-1401 of the General Obligations
Law).

     

    SECTION
1.12.     Submission to
Jurisdiction.

     

    ANY
LEGAL ACTION OR PROCEEDING BY OR AGAINST ANY PARTY HERETO OR WITH RESPECT TO OR
ARISING OUT OF THIS INDENTURE MAY BE BROUGHT IN OR REMOVED TO THE COURTS OF THE
STATE OF NEW YORK, IN AND FOR THE COUNTY OF NEW YORK, OR OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK (IN EACH CASE SITTING IN THE
BOROUGH OF MANHATTAN).  BY EXECUTION AND DELIVERY OF THIS INDENTURE,
EACH

     

    


    
      
        
           


        

        
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    PARTY
ACCEPTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS (AND COURTS OF APPEALS
THEREFROM) FOR LEGAL PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
INDENTURE.

     

    SECTION
1.13. Non-Business
Days.

     

    If
any Interest Payment Date, Redemption Date or Stated Maturity of any Security
shall not be a Business Day, then (notwithstanding any other provision of this
Indenture or the Securities) payment of interest, premium, if any, or principal
or other amounts in respect of such Security shall not be made on such date, but
shall be made on the next succeeding Business Day (and no interest shall accrue
in respect of the amounts whose payment is so delayed for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be, until such next succeeding Business Day) except that, if such
Business Day falls in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day, in each case with the same force
and effect as if made on the Interest Payment Date or Redemption Date or at the
Stated Maturity.

     

     

    ARTICLE
II

     

    Security
Forms

     

    SECTION
2.1.       Form of
Security.

     

    Any
Security issued hereunder shall be in substantially the following
form:

     

    ANTHRACITE
CAPITAL, INC.

     

    Junior
Subordinated Note due 2036

     

    
    

     

    
      	No.  _____________	 $
      ____________


    

     

    Anthracite
Capital, Inc., a corporation organized and existing under the laws of Maryland
(hereinafter called the “Company,” which term includes
any successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to Wilmington Trust Company, not in its
individual capacity, but solely as Property Trustee for Anthracite Capital Trust
III (the “Holder”), or
registered assigns, the principal sum of Nineteen Million Two Hundred Fourteen
Thousand Dollars ($19,214,000) on March 30, 2036.  The Company further
promises to pay interest on said principal sum from June 30, 2009 to, and
including, September 29, 2009 on the date hereof, and from September 30, 2009,
or from the most recent Interest Payment Date on and to which interest has been
paid or duly provided for quarterly in arrears to, but excluding, and on March
30, June 30, September 30 and December 30 of each year, commencing on December
30, 2009, or if any such day is not a Business Day, on the next succeeding
Business Day (and no interest shall accrue in respect of the amounts whose
payment is so delayed for the period from and after such Interest Payment Date
until such next succeeding Business Day), except that, if such Business Day
falls in the next succeeding calendar year, such

     

    


    
      
        
           


        

        
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    payment
shall be made on the immediately preceding Business Day, in each case, with the
same force and effect as if made on the Interest Payment Date, at a fixed rate
equal to 0.75% per annum (the “Initial Fixed Rate”), payable
on the date hereof and thereafter quarterly and ending on the earlier of the (a)
the fourth (4th)
anniversary date of the date hereof and (b) the date on which all of the
existing senior secured loans set forth on Schedule B are fully
amortized, including deferred restructuring fees, in an amount not to exceed
Four Million Dollars ($4,000,000) (the “Initial Fixed Rate Period”),
then at a fixed rate equal to 7.77% per annum (the “Final Fixed Rate”) through
the Interest Payment Date in March 2016 (the “Final Fixed Rate Period,” and
together with the Initial Fixed Rate Period, the “Fixed Rate Periods”) and
thereafter at a variable rate equal to LIBOR plus 2.70% per annum (the “Variable Rate”), Additional
Tax Sums, if any, as provided in Section 10.5 of the
Indenture, until the principal hereof is paid or duly provided for or made
available for payment; provided, further, that any overdue
principal, premium, if any, or Additional Tax Sums and any overdue installment
of interest shall bear Additional Interest at a fixed rate equal to the Initial
Fixed Rate through the Initial Fixed Rate Period, then at the Final Fixed Rate
through the Final Fixed Rate Period and thereafter at a variable rate equal to
the Variable Rate (to the extent that the payment of such interest shall be
legally enforceable), compounded quarterly, from the dates such amounts are due
until they are paid or made available for payment, and such interest shall be
payable on demand.

     

    During
the Fixed Rate Periods, the amount of interest payable shall be computed on the
basis of a 360-day year of twelve 30-day months and the amount payable for any
partial period shall be computed on the basis of the number of days elapsed in a
360-day year of twelve 30-day months.  Upon expiration of the Fixed
Rate Periods, the amount of interest payable for any interest payment period
will be computed on the basis of a 360-day year and the actual number of days
elapsed in the relevant interest period.  The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date shall, as
provided in the Indenture, be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest installment.  Any such
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities not less than ten (10) days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture.

     

    From
the date hereof until the end of the Initial Fixed Rate Period, the Company
shall not declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of the Company’s
Equity Interests, other than (a) with the prior, express, written consent of the
Holders of not less than a majority in principal amount of the Outstanding
Securities, or (b) dividends or distributions which are reasonably necessary to
maintain the real estate investment trust (“REIT”) status of the Company
for federal income tax purposes and avoid imposition of federal income and
excise tax on the Company with respect to such distributed taxable income or net
capital gains; provided, that such
distributions or dividends as described in clause (b) above shall (i) to the
extent paid to holders of the Company’s common stock (A) not be in excess of
$2,500,000 (in the aggregate in cash) and (B)

     

    


    
      
        
           


        

        
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    be
in the form of the Company’s common stock to the maximum extent permissible as
stated by the Internal Revenue Service regulations, rulings, revenue procedures,
notices, announcements, or other authoritative pronouncements at the time of
such dividend or distribution with only the balance payable in cash, and (ii) to
the extent paid to holders of the Company’s preferred stock, be in an amount no
greater than that required to be distributed to such holders to permit the
distributions and dividends to holders of the Company’s common stock permitted
by clause (i) above.

     

    Payment
of principal of, premium, if any, and interest on this Security shall be made in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts.  Payments of
principal, premium, if any, and interest due at the Maturity of this Security
shall be made at the Place of Payment upon surrender of such Securities to the
Paying Agent, and payments of interest shall be made, subject to such surrender
where applicable, by wire transfer at such
place and to such account at a banking
institution in the United States as may be designated in writing to the Paying
Agent at least ten (10) Business Days prior to the date for payment by the
Person entitled thereto unless proper written
transfer instructions have not been received by the relevant record date, in
which case such payments shall be made by check mailed to the address of such
Person as such address shall appear in the Security
Register.  Notwithstanding the foregoing, so long as the Holder of
this Security is the Property Trustee, the payment of the principal of (and
premium, if any) and interest (including any overdue installment of interest and
Additional Tax Sums, if any) on this Security will be made at such place and to
such account as may be designated by the Property Trustee.

     

    The
indebtedness evidenced by this Security is, to the extent provided in the
Indenture, subordinate and junior in right of payment to the prior payment in
full of all Senior Debt, and this Security is issued subject to the provisions
of the Indenture with respect thereto.  Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his or her behalf to take such actions as
may be necessary or appropriate to effectuate the subordination so provided and
(c) appoints the Trustee his or her attorney-in-fact for any and all such
purposes.  Each Holder hereof, by his or her acceptance hereof, waives
all notice of the acceptance of the subordination provisions contained herein
and in the Indenture by each holder of Senior Debt, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said
provisions.

     

    Unless
the certificate of authentication hereon has been executed by the Trustee by
manual signature, this Security shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.

     

    [FORM
OF REVERSE OF SECURITY]

     

    This
Security is one of a duly authorized issue of securities of the Company (the
“Securities”) issued
under the Amended and Restated Junior Subordinated Indenture, dated as of
October 23, 2009 (the “Indenture”), between the
Company and Wilmington Trust Company, as Trustee (in such capacity, the “Trustee,” which term includes
any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee, the holders of Senior Debt, the Holders of the
Securities and the

     

    


    
      
        
           


        

        
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    holders
of the Preferred Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered.

     

    All
terms used in this Security that are defined in the Indenture or in the Amended
and Restated Trust Agreement, dated as of March 16, 2006 (as modified, amended
or supplemented from time to time, the “Trust Agreement”), relating
to the Anthracite Capital Trust III (the “Trust”) among the Company, as
Depositor, the Trustees named therein and the Holders from time to time of the
Trust Securities issued pursuant thereto, shall have the meanings assigned to
them in the Indenture or the Trust Agreement, as the case may be.

     

    The
Company may, on any Interest Payment Date, at its option, upon not less than
thirty (30) days’ nor more than sixty (60) days’ written notice to the Holders
of the Securities (unless a shorter notice period shall be satisfactory to the
Trustee) on or after March 30, 2011 and subject to the terms and conditions of
Article XI of
the Indenture, redeem this Security in whole at any time or in part from time to
time at a Redemption Price equal to one hundred percent (100%) of the principal
amount hereof, together, in the case of any such redemption, with accrued
interest, including any Additional Interest, through but excluding the date
fixed as the Redemption Date.

     

    In
addition, upon the occurrence and during the continuation of a Special Event,
the Company may, at its option, upon not less than thirty (30) days’ nor more
than sixty (60) days’ written notice to the Holders of the Securities (unless a
shorter notice period shall be satisfactory to the Trustee), redeem this
Security, in whole but not in part, subject to the terms and conditions of Article XI of the
Indenture at a Redemption Price equal to one hundred seven and one half percent
(107.5%) of the principal amount hereof, together, in the case of any such
redemption, with accrued interest, including any Additional Interest, through
but excluding the date fixed as the Redemption Date.

     

    In
the event of redemption of this Security in part only, a new Security or
Securities for the unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.  If less than all the
Securities are to be redeemed, the particular Securities to be redeemed shall be
selected not more than sixty (60) days prior to the Redemption Date by the
Trustee from the Outstanding Securities not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of a portion of the principal amount of any
Security.

     

    The
Indenture permits, with certain exceptions as therein provided, the Company and
the Trustee at any time to enter into a supplemental indenture or indentures for
the purpose of modifying in any manner the rights and obligations of the Company
and of the Holders of the Securities, with the consent of the Holders of not
less than a majority in principal amount of the Outstanding
Securities.  The Indenture also contains provisions permitting Holders
of specified percentages in principal amount of the Securities, on behalf of the
Holders of all Securities, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences.  Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.

     

    


    
      
        
           


        

        
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    No
reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and any premium, if any, and
interest, including any Additional Interest (to the extent legally enforceable),
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.

     

    As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Security is restricted to transfers to (i) the Company or
(ii) (A) a Person whom the Seller reasonably believes is a “Qualified Purchaser”
as such term is defined in Section 2(a)(51) of the Investment Company Act and
(B) (1) a Person whom the Seller reasonably believes is a “Qualified
Institutional Buyer,” as such term is defined in Rule 144A under the Securities
Act, in a transaction meeting the requirements of Rule 144A, (2) an
institutional “Accredited Investor” within the meaning of subparagraph (a)(1),
(2), (3) or (7) of Rule 501 under the Securities Act that is acquiring the
Securities for its own account, or for the account of an “Accredited Investor,”
for investment purposes and not with a view to, or for offer or sale in
connection with, any distribution in violation of the Securities Act, (3)
pursuant to an effective registration statement under the Securities Act or (4)
pursuant to another exemption from registration under the Securities Act, and is
registrable in the Securities Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company maintained for
such purpose, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Securities Registrar and
duly executed by, the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Securities, of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.

    


    The
Securities are issuable only in registered form without coupons in minimum
denominations of $100,000 and any integral multiple of $1,000 in excess
thereof.  As provided in the Indenture and subject to certain
limitations therein set forth, Securities are exchangeable for a like aggregate
principal amount of Securities and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.

     

    No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.

     

    The
Company, the Trustee and any agent of the Company or the Trustee shall treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the
contrary.

     

    The
Company and, by its acceptance of this Security or a beneficial interest herein,
the Holder of, and any Person that acquires a beneficial interest in, this
Security agree that, for United States federal, state and local tax purposes, it
is intended that this Security constitute indebtedness.

     

    


    
      
        
           


        

        
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    This
Security shall be construed and enforced in accordance with and governed by the
laws of the State of New York, without reference to its conflict of laws
provisions (other than Section 5-1401 of the General Obligations
Law).

     

    IN
WITNESS WHEREOF, the Company has caused this instrument to be duly executed on
this ____ day of __________, 20__.

     

     

    
      	 
      	
              Anthracite
      Capital, Inc.

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              By:

            	 
      
	 
      	 
      	
              Name:

            	 
      
	 
      	 
      	
              Title:

            	 
      


    

    


     

    SECTION
2.2.       Restricted
Legend.

     

    (a)           Any
Security issued hereunder shall bear a legend in substantially the following
form:

     

    “[IF THIS SECURITY IS A GLOBAL SECURITY
INSERT:  THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING
OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY (“DTC”) OR A NOMINEE OF
DTC.  THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A
TRANSFER OF THIS SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE
OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.

     

    UNLESS
THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.  OR IN SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON
IS MADE TO CEDE & CO.  OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]

     

    THE
SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES
ACT”), AND SUCH SECURITIES, AND ANY INTEREST THEREIN, MAY NOT BE OFFERED,
SOLD

     

    


    
      
        
           


        

        
          20

          
            

          

        

        
           


        

      

    

    


     

    OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM.  EACH PURCHASER OF ANY SECURITIES IS HEREBY
NOTIFIED THAT THE SELLER OF THE SECURITIES MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A UNDER
THE SECURITIES ACT.

     

    THE
HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE AGREES FOR THE BENEFIT
OF THE COMPANY THAT SUCH SECURITIES MAY BE OFFERED, RESOLD OR OTHERWISE
TRANSFERRED ONLY (A) TO THE COMPANY OR THE TRUST OR (B) (I) TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A “QUALIFIED PURCHASER” (AS DEFINED IN SECTION
2(a)(51) OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED), AND (II) (Z) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER”
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (Y) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN
THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF AN “ACCREDITED INVESTOR,” FOR INVESTMENT PURPOSES AND NOT WITH A VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF
THE SECURITIES ACT, (X) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OR (W) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND, IN
THE CASE OF (Y) OR (W), SUBJECT TO THE RIGHT OF THE COMPANY TO REQUIRE AN
OPINION OF COUNSEL AND OTHER INFORMATION REASONABLY SATISFACTORY TO THE COMPANY
(PROVIDED THAT IF SUCH OPINION AND INFORMATION STATE THAT THE PROPOSED OFFER,
RESALE OR OTHER TRANSFER WILL BE IN ACCORDANCE WITH APPLICABLE SECURITIES LAWS,
THE COMPANY MAY NOT OBJECT THERETO). IN ADDITION, THE HOLDER FURTHER AGREES THAT
IT WILL NOTIFY ANY PURCHASER OF ANY SECURITIES FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN THE PRECEDING SENTENCE.

     

    THE
SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING AN
AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN $100,000.  TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY ATTEMPTED TRANSFER OF SECURITIES, OR ANY INTEREST
THEREIN, IN A BLOCK HAVING AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $100,000
AND MULTIPLES OF $1,000 IN EXCESS THEREOF SHALL BE DEEMED TO BE VOID AND OF NO
LEGAL EFFECT WHATSOEVER.  TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH
SECURITIES FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
PRINCIPAL OF OR

     

    


    
      
        
           


        

        
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    INTEREST
ON SUCH SECURITIES, OR ANY INTEREST THEREIN, AND SUCH PURPORTED TRANSFEREE SHALL
BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH SECURITIES.

     

    THE
HOLDER OF THIS SECURITY, OR ANY INTEREST THEREIN, BY ITS ACCEPTANCE HEREOF OR
THEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT
PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”), OR SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) (EACH A “PLAN”), OR AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT IN
THE ENTITY, AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR
HOLD THIS SECURITY OR ANY INTEREST THEREIN.  ANY PURCHASER OR HOLDER
OF THE SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY
ITS PURCHASE AND HOLDING THEREOF THAT IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN
THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE
CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE
BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY
EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE.”

     

    (b)           The
above legends shall not be removed from any Security unless there is delivered
to the Company satisfactory evidence, which may include an Opinion of Counsel,
as may be reasonably required to ensure that any future transfers thereof may be
made without restriction under or violation of the provisions of the Securities
Act and other applicable law.  Upon provision of such satisfactory
evidence, the Company shall execute and deliver to the Trustee, and the Trustee
shall deliver, upon receipt of a Company Order directing it to do so, a Security
that does not bear the legend.

     

    SECTION
2.3.       Form of Trustee’s Certificate of
Authentication.

     

    The
Trustee’s certificate of authentication shall be in substantially the following
form:

     

    This
is one of the Securities referred to in the within-mentioned
Indenture.

     

    
      	
              Dated:

            	
              WILMINGTON TRUST
      COMPANY, not in its individual capacity, but solely as
      Trustee

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              By:

            	 
      
	 
      	
              Authorized
      Signatory

            


    

    
 

    
      
        
           


        

        
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    SECTION
2.4.       Temporary
Securities.

     

    (a)           Pending
the preparation of definitive Securities, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
that are printed, lithographed, typewritten, mimeographed or otherwise produced,
in any denomination, substantially of the tenor of the definitive Securities in
lieu of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.

     

    (b)           If
temporary Securities are issued, the Company will cause definitive Securities to
be prepared without unreasonable delay.  After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for that purpose without charge to the
Holder.  Upon surrender for cancellation of any one or more temporary
Securities, the Company shall execute and the Trustee shall upon receipt of a
Company Order authenticate and deliver in exchange therefor one or more
definitive Securities of any authorized denominations having the same Original
Issue Date and Stated Maturity and having the same terms as such temporary
Securities.  Until so exchanged, the temporary Securities shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities.

     

    SECTION
2.5.       Definitive
Securities.

     

    The
Securities issued on the Original Issue Date shall be in definitive
form.  The definitive Securities shall be printed, lithographed or
engraved, or produced by any combination of these methods, if required by any
securities exchange on which the Securities may be listed, on a steel engraved
border or steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities may be
listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.

     

     

    ARTICLE
III

     

    The
Securities

     

    SECTION
3.1.       Payment of Principal and
Interest.

     

    (a)           The
unpaid principal amount of the Securities shall bear interest at the Initial
Fixed Rate through the Initial Fixed Rate Period, then at the Final Fixed Rate
through the Final Fixed Rate Period, and thereafter at the Variable Rate until
paid or duly provided for, such interest to accrue from June 30, 2009 to, and
including, September 29, 2009, and from September 30, 2009 or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, and any overdue principal, premium, if any, or Additional Tax Sums and any
overdue installment of interest shall bear Additional Interest at the Initial
Fixed Rate through the Initial Fixed Rate Period, then at the Final Fixed Rate
through the Final Fixed Rate Period, and thereafter at the Variable Rate
compounded quarterly, from the dates such amounts

     

    


    
      
        
           


        

        
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    are
due until they are paid or funds for the payment thereof are made legally
available for payment.

     

    (b)        Interest
and Additional Interest on any Security that is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, except that interest and any Additional Interest payable on the Stated
Maturity (or any date of principal repayment upon early maturity) of the
principal of a Security or on a Redemption Date shall be paid to the Person to
whom principal is paid.  The initial payment of interest on any
Security that is issued between a Regular Record Date and the related Interest
Payment Date shall be payable as provided in such Security.

     

    (i)           The
interest payment on the Securities due on the date hereof for the interest
period from June 30, 2009 to, and including, September 29, 2009, when paid in
full, shall satisfy in full any interest payable on the Junior Subordinated
Notes due 2036 (the “Original Notes”) issued by the Company under the Junior
Subordinated Indenture, dated as of March 16, 2006, between the Company and the
Trustee that were outstanding immediately preceding the effectiveness of this
Indenture, and  any default in the payment of any interest on the
Original Notes, including any Additional Interest in respect thereof, is deemed
waived.

     

    (c)        Any
interest on any Security that is due and payable, but is not timely paid or duly
provided for, on any Interest Payment Date for Securities (herein called “Defaulted Interest”) shall
forthwith cease to be payable to the registered Holder on the relevant Regular
Record Date by virtue of having been such Holder, and such Defaulted Interest
may be paid by the Company, at its election in each case, as provided in
paragraph (i) or (ii) below:

     

    (i)           The
Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities (or their respective Predecessor Securities) are
registered at the close of business on a special record date for the payment of
such Defaulted Interest (a “Special Record Date”), which
shall be fixed in the following manner.  At least thirty (30) days
prior to the date of the proposed payment, the Company shall notify the Trustee
in writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest.  Thereupon
the Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest, which shall be not more than fifteen (15) days and not less than ten
(10) days prior to the date of the proposed payment and not less than ten (10)
days after the receipt by the Trustee of the notice of the proposed
payment.  The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first class, postage prepaid, to each Holder
of a Security at the address of such Holder as it appears in the Securities
Register not less than ten (10) days prior to such Special Record
Date.

     

    


    
      
        
           


        

        
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    Notice
of the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Securities (or their respective Predecessor
Securities) are registered on such Special Record Date; or

     

    (ii)           The
Company may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities exchange or automated
quotation system on which the Securities may be listed, traded or quoted and,
upon such notice as may be required by such exchange or automated quotation
system (or by the Trustee if the Securities are not listed), if, after notice
given by the Company to the Trustee of the proposed payment pursuant to this
clause, such payment shall be deemed practicable by the Trustee.

     

    (d)        Payments
of interest on the Securities shall include interest accrued to but excluding
the respective Interest Payment Dates.  During the Fixed Rate Periods,
the amount of interest payable shall be computed on the basis of a 360-day year
of twelve 30-day months and the amount payable for any partial period shall be
computed on the basis of the number of days elapsed in a 360-day year of twelve
30-day months.  Upon expiration of the Fixed Rate Periods, the amount
of interest payable for any Interest Payment Period will be computed on the
basis of a 360-day year and the actual number of days elapsed in the relevant
interest period.

     

    (e)        Payment
of principal of, premium, if any, and interest on the Securities shall be made
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private
debts.  Payments of principal, premium, if any, and interest due at
the Maturity of such Securities shall be made at the Place of Payment upon
surrender of such Securities to the Paying Agent and payments of interest shall
be made subject to such surrender where applicable, by wire transfer at such place and to such account at a banking institution in the
United States as may be designated in writing to the Paying Agent at least ten
(10) Business Days prior to the date for payment by the Person entitled thereto
unless proper written transfer instructions have
not been received by the relevant record date, in which case such payments shall
be made by check mailed to the address of such Person as such address shall
appear in the Security Register.  Notwithstanding the foregoing, so
long as the holder of this Security is the Property Trustee, the payment of the
principal of (and premium, if any) and interest (including any overdue
installment of interest and Additional Tax Sums, if any) on this Security will
be made at such place and to such account as may be designated by the Property
Trustee.

     

    (f)         Reserved.

     

    (g)        Subject
to the foregoing provisions of this Section 3.1, each
Security delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, that were carried by such other Security.

     

    


    
      
        
           


        

        
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    SECTION
3.2.       Denominations.

     

    The
Securities shall be in registered form without coupons and shall be issuable in
minimum denominations of $100,000 and any integral multiple of $1,000 in excess
thereof.

     

    SECTION
3.3.       Execution, Authentication, Delivery
and Dating.

     

    (a)        At
any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities in an aggregate principal amount
(including all then Outstanding Securities) not in excess of Nineteen Million
Two Hundred Fourteen Thousand Dollars ($19,214,000) executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such
Securities.  In authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and shall be fully protected in
relying upon:

     

    (i)           a
copy of any Board Resolution relating thereto; and

     

    (ii)           an
Opinion of Counsel stating that:  (1) such Securities, when
authenticated and delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion of Counsel, will
constitute, and the Indenture constitutes, valid and legally binding obligations
of the Company, each enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors’ rights
and to general equity principles; (2) the Securities have been duly authorized
and executed by the Company and have been delivered to the Trustee for
authentication in accordance with this Indenture; (3) the Securities are not
required to be registered under the Securities Act; and (4) the Indenture is not
required to be qualified under the Trust Indenture Act.

     

    (b)        The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its Vice Chairman of the Board, its Chief Executive Officer, its
President or one of its Vice Presidents.  The signature of any of
these officers on the Securities may be manual or
facsimile.  Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.

     

    (c)        No
Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose, unless there appears on such Security a certificate
of authentication substantially in the form provided for herein executed by the
Trustee by the manual signature of one of its authorized signatories, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.  Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.8, for all
purposes of this

     

    


    
      
        
           


        

        
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    Indenture
such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this
Indenture.

     

    (d)        Each
Security shall be dated the date of its authentication.

     

    SECTION
3.4.       Global
Securities.

     

    (a)        Upon
the election of the Holder after the Original Issue Date, which election need
not be in writing, the Securities owned by such Holder shall be issued in the
form of one or more Global Securities registered in the name of the Depositary
or its nominee.  Each Global Security issued under this Indenture
shall be registered in the name of the Depositary designated by the Company for
such Global Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.

     

    (b)        Notwithstanding
any other provision in this Indenture, no Global Security may be exchanged in
whole or in part for registered Securities, and no transfer of a Global Security
in whole or in part may be registered in the name of any Person other than the
Depositary for such Global Security or a nominee thereof, unless (i) such
Depositary advises the Trustee and the Company in writing that such Depositary
is no longer willing or able to properly discharge its responsibilities as
Depositary with respect to such Global Security, and no qualified successor is
appointed by the Company within ninety (90) days of receipt by the Company of
such notice, (ii) such Depositary ceases to be a clearing agency registered
under the Exchange Act and no successor is appointed by the Company within
ninety (90) days after obtaining knowledge of such event, (iii) the Company
executes and delivers to the Trustee a Company Order stating that the Company
elects to terminate the book-entry system through the Depositary or (iv) an
Event of Default shall have occurred and be continuing.  Upon the
occurrence of any event specified in clause (i), (ii), (iii) or (iv) above, the
Trustee shall notify the Depositary and instruct the Depositary to notify all
owners of beneficial interests in such Global Security of the occurrence of such
event and of the availability of Securities to such owners of beneficial
interests requesting the same.  The Trustee may conclusively rely, and
be protected in relying, upon the written identification of the owners of
beneficial interests furnished by the Depositary, and shall not be liable for
any delay resulting from a delay by the Depositary.  Upon the issuance
of such Securities and the registration in the Securities Register of such
Securities in the names of the Holders of the beneficial interests therein, the
Trustee shall recognize such holders of beneficial interests as
Holders.

     

    (c)        If
any Global Security is to be exchanged for other Securities or canceled in part,
or if another Security is to be exchanged in whole or in part for a beneficial
interest in any Global Security, then either (i) such Global Security shall be
so surrendered for exchange or cancellation as provided in this Article III or (ii)
the principal amount thereof shall be reduced or increased by an amount equal to
(x) the portion thereof to be so exchanged or canceled, or (y) the principal
amount of such other Security to be so exchanged for a beneficial interest
therein, as the case may be, by means of an appropriate adjustment made on the
records of the Securities Registrar, whereupon the Trustee, in accordance with
the Applicable Depositary Procedures, shall instruct the Depositary or its
authorized representative to make a corresponding adjustment to its
records.  Upon any such surrender or adjustment of a Global Security
by the Depositary,

     

    


    
      
        
           


        

        
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    accompanied
by registration instructions, the Company shall execute and the Trustee shall
upon receipt of a Company Order authenticate and deliver any Securities issuable
in exchange for such Global Security (or any portion thereof) in accordance with
the instructions of the Depositary.  The Trustee shall not be liable
for any delay in delivery of such instructions and may conclusively rely on, and
shall be fully protected in relying on, such instructions.

     

    (d)        Every
Security authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Security or any portion thereof shall be
authenticated and delivered in the form of, and shall be, a Global Security,
unless such Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.

     

    (e)        Securities
distributed to holders of Book-Entry Preferred Securities (as defined in the
applicable Trust Agreement) upon the dissolution of the Trust shall be
distributed in the form of one or more Global Securities registered in the name
of a Depositary or its nominee, and deposited with the Securities Registrar, as
custodian for such Depositary, or with such Depositary, for credit by the
Depositary to the respective accounts of the beneficial owners of the Securities
represented thereby (or such other accounts as they may
direct).  Securities distributed to holders of Preferred Securities
other than Book-Entry Preferred Securities upon the dissolution of the Trust
shall not be issued in the form of a Global Security or any other form intended
to facilitate book-entry trading in beneficial interests in such
Securities.

     

    (f)        
The Depositary or its nominee, as the registered owner of a Global Security,
shall be the Holder of such Global Security for all purposes under this
Indenture and the Securities, and owners of beneficial interests in a Global
Security shall hold such interests pursuant to the Applicable Depositary
Procedures.  Accordingly, any such owner’s beneficial interest in a
Global Security shall be shown only on, and the transfer of such interest shall
be effected only through, records maintained by the Depositary or its nominee or
its Depositary Participants.  The Securities Registrar and the Trustee
shall be entitled to deal with the Depositary for all purposes of this Indenture
relating to a Global Security (including the payment of principal and interest
thereon and the giving of instructions or directions by owners of beneficial
interests therein and the giving of notices) as the sole Holder of the Security
and shall have no obligations to the owners of beneficial interests
therein.  Neither the Trustee nor the Securities Registrar shall have
any liability in respect of any transfers effected by the
Depositary.

     

    (g)        The
rights of owners of beneficial interests in a Global Security shall be exercised
only through the Depositary and shall be limited to those established by law and
agreements between such owners and the Depositary and/or its Depositary
Participants.

     

    (h)        No
holder of any beneficial interest in any Global Security held on its behalf by a
Depositary shall have any rights under this Indenture with respect to such
Global Security, and such Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the owner of such Global Security
for all purposes whatsoever.  None of the Company, the Trustee nor any
agent of the Company or the Trustee will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests of a Global Security or maintaining, supervising
or reviewing any records relating to such beneficial ownership
interests.  Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving

     

     

    
      
        
        

      

      
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    effect
to any written certification, proxy or other authorization furnished by a
Depositary or impair, as between a Depositary and such holders of beneficial
interests, the operation of customary practices governing the exercise of the
rights of the Depositary (or its nominee) as Holder of any
Security.

     

    SECTION
3.5.       Registration, Transfer and Exchange
Generally.

     

    (a)        The
Trustee shall cause to be kept at the Corporate Trust Office a register (the
“Securities Register”)
in which the registrar and transfer agent with respect to the Securities (the
“Securities
Registrar”), subject to such reasonable regulations as it may prescribe,
shall provide for the registration of Securities and of transfers and exchanges
of Securities.  The Trustee shall at all times also be the Securities
Registrar.  The provisions of Article VI shall
apply to the Trustee in its role as Securities Registrar.

     

    (b)        Subject
to compliance with Section 2.2(b), upon
surrender for registration of transfer of any Security at the offices or
agencies of the Company designated for that purpose the Company shall execute,
and the Trustee shall upon receipt of a Company Order authenticate and deliver,
in the name of the designated transferee or transferees, one or more new
Securities of any authorized denominations of like tenor and aggregate principal
amount.

     

    (c)        At
the option of the Holder, Securities may be exchanged for other Securities of
any authorized denominations, of like tenor and aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or
agency.  Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall upon receipt of a Company Order
authenticate and deliver, the Securities that the Holder making the exchange is
entitled to receive.

     

    (d)        All
Securities issued upon any transfer or exchange of Securities shall be the valid
obligations of the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon such transfer
or exchange.

     

    (e)        Every
Security presented or surrendered for transfer or exchange shall (if so required
by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Securities
Registrar, duly executed by the Holder thereof or such Holder’s attorney duly
authorized in writing.

     

    (f)         No
service charge shall be made to a Holder for any transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Securities.

     

    (g)        Neither
the Company nor the Trustee shall be required pursuant to the provisions of this
Section
3.5(g):  (i) to issue, register the transfer of or exchange any
Security during a period beginning at the opening of business fifteen (15) days
before the day of selection for redemption of Securities pursuant to Article XI and ending
at the close of business on the day of mailing of the notice of redemption or
(ii) to register the transfer of or exchange any Security so selected for
redemption in whole or in part, except, in the case of any such Security to be
redeemed in part, any portion thereof not to be redeemed.

     

    


    
      
        
           


        

        
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    (h)        The
Company shall designate an office or offices or agency or agencies where
Securities may be surrendered for registration of transfer or
exchange.  The Company initially designates the Corporate Trust Office
as its office and agency for such purposes.  The Company shall give
prompt written notice to the Trustee and to the Holders of any change in the
location of any such office or agency.

     

    (i)         The
Securities may only be transferred to (i) the Company or (ii) (A) a Person whom
the Seller reasonably believes is a “Qualified Purchaser” as such term is
defined in Section 2(a)(51) of the Investment Company Act and (B) (1) a Person
whom the Seller reasonably believes is a “Qualified Institutional Buyer,” as
such term is defined in Rule 144A under the Securities Act, in a transaction
meeting the requirements of Rule 144A, (2) an institutional “Accredited
Investor” within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501
under the Securities Act that is acquiring the Securities for its own account,
or for the account of an “Accredited Investor,” for investment purposes and not
with a view to, or for offer or sale in connection with, any distribution in
violation of the Securities Act, (3) pursuant to an effective registration
statement under the Securities Act or (4) pursuant to another exemption from
registration under the Securities Act.

     

    (j)         Neither
the Trustee nor the Securities Registrar shall be responsible for ascertaining
whether any transfer hereunder complies with the registration provisions of or
any exemptions from the Securities Act, applicable state securities laws or the
applicable laws of any other jurisdiction, ERISA, the Code, or the Investment
Company Act; provided, that if a certificate is specifically required by the
express terms of this Section 3.5 to be
delivered to the Trustee or the Securities Registrar by a Holder or transferee
of a Security, the Trustee and the Securities Registrar shall be under a duty to
receive and examine the same to determine whether or not the certificate
substantially conforms on its face to the requirements of this Indenture and
shall promptly notify the party delivering the same if such certificate does not
comply with such terms.

     

    SECTION
3.6.       Mutilated, Destroyed, Lost and
Stolen Securities.

     

    (a)        If
any mutilated Security is surrendered to the Trustee together with such security
or indemnity as may be required by the Trustee to save the Company and the
Trustee harmless, the Company shall execute and the Trustee shall upon receipt
of a Company Order authenticate and deliver in exchange therefor a new Security
of like tenor and aggregate principal amount and bearing a number not
contemporaneously outstanding.

     

    (b)        If
there shall be delivered to the Trustee (i) evidence to its satisfaction of the
destruction, loss or theft of any Security and (ii) such security or indemnity
as may be required by it to save each of the Company and the Trustee harmless,
then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a bona
fide purchaser, the Company shall execute and upon its receipt of a
Company Order the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and aggregate
principal amount as such destroyed, lost or stolen Security, and bearing a
number not contemporaneously outstanding.

     

    


    
      
        
           


        

        
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    (c)        If
any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a
new Security, pay such Security.

     

    (d)        Upon
the issuance of any new Security under this Section 3.6, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected
therewith.

     

    (e)        Every
new Security issued pursuant to this Section 3.6 in lieu
of any mutilated, destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
mutilated, destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities duly issued
hereunder.

     

    (f)        
The provisions of this Section 3.6 are
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities.

     

    SECTION
3.7.       Persons Deemed
Owners.

     

    The
Company, the Trustee and any agent of the Company or the Trustee shall treat the
Person in whose name any Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and any interest on such
Security and for all other purposes whatsoever, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.

     

    SECTION
3.8.       Cancellation.

     

    All
Securities surrendered for payment, redemption, transfer or exchange shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and Securities surrendered directly to the Trustee for
any such purpose shall be promptly canceled by it.  The Company may at
any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder that the Company may have acquired in any
manner whatsoever, and all Securities so delivered shall be promptly canceled by
the Trustee.  No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section 3.8, except
as expressly permitted by this Indenture.  All canceled Securities
shall be retained or disposed of by the Trustee in accordance with its customary
practices and the Trustee shall deliver to the Company a certificate of such
disposition.

     

    


    
      
        
           


        

        
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    SECTION
3.9.       Reserved.

     

    SECTION
3.10.     Reserved.

     

    SECTION
3.11.     Agreed Tax
Treatment.

     

    Each
Security issued hereunder shall provide that the Company and, by its acceptance
or acquisition of a Security or a beneficial interest therein, the Holder of,
and any Person that acquires a direct or indirect beneficial interest in, such
Security, intend and agree to treat such Security as indebtedness of the Company
for United States Federal, state and local tax purposes and to treat the
Preferred Securities (including but not limited to all payments and proceeds
with respect to the Preferred Securities) as an undivided beneficial ownership
interest in the Securities (and any other Trust property) (and payments and
proceeds therefrom, respectively) for United States Federal, state and local tax
purposes.  The provisions of this Indenture shall be interpreted to
further this intention and agreement of the parties.

     

    SECTION
3.12.     CUSIP Numbers.

     

    The
Company in issuing the Securities may use “CUSIP” numbers (if then generally in
use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption
and other similar or related materials as a convenience to Holders; provided, that any such
notice or other materials may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of redemption or other materials and that reliance may be placed
only on the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such
numbers.

     

     

    ARTICLE
IV

     

    Satisfaction
and Discharge

     

    SECTION
4.1.       Satisfaction and Discharge of
Indenture.

     

    This
Indenture shall, upon Company Request, cease to be of further effect (except as
to any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for and as otherwise provided in this Section 4.1) and the
Trustee, on written demand of and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when

     

    (a)        either

     

    (i)           all
Securities theretofore authenticated and delivered (other than (A) Securities
that have been mutilated, destroyed, lost or stolen and that have been replaced
or paid as provided in Section 3.6 and (B)
Securities for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust as provided in Section 10.2) have
been delivered to the Trustee for cancellation; or

     

    


    
      
        
           


        

        
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    (ii)           all
such Securities not theretofore delivered to the Trustee for
cancellation

     

      
(A)           have become
due and payable, or

     

      
(B)           will become
due and payable at their Stated Maturity within one year of the date of deposit,
or

     

      
(C)           are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company,

     

    and
the Company, in the case of subclause (ii)(A), (B) or (C) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust for such
purpose (x) an amount in the currency or currencies in which the Securities are
payable, (y) Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will
provide, not later than the due date of any payment, money in an amount or (z) a
combination thereof, in each case sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal and any premium and interest (including any
Additional Interest) to the date of such deposit (in the case of Securities that
have become due and payable) or to the Stated Maturity (or any date of principal
repayment upon early maturity) or Redemption Date, as the case may
be;

     

    (b)        the
Company has paid or caused to be paid all other sums payable hereunder by the
Company; and

     

    (c)        the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture have been complied
with.

     

    Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the Company
to the Trustee under Section 6.6, the
obligations of the Company to any Authenticating Agent under Section 6.11 and, if
money shall have been deposited with the Trustee pursuant to subclause (a)(ii)
of this Section
4.1, the obligations of the Trustee under Section 4.2 and Section 10.2(e) shall
survive.

     

    SECTION
4.2.       Application of Trust
Money.

     

    Subject
to the provisions of Section 10.2(e), all
money deposited with the Trustee pursuant to Section 4.1 shall be
held in trust and applied by the Trustee, in accordance with the provisions of
the Securities and this Indenture, to the payment in accordance with Section 3.1, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal and any premium and interest (including any Additional Interest)
for the payment of which such money or obligations have been deposited with or
received by the Trustee.  Moneys held by the Trustee

     

    


    
      
        
           


        

        
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    under
this Section
4.2 shall not be subject to the claims of holders of Senior Debt under
Article
XII.

     

     

    ARTICLE
V

     

    Remedies

     

    SECTION
5.1.       Events of
Default.

     

    “Event of Default” means,
wherever used herein with respect to the Securities, any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):

     

    (a)        default
in the payment of any interest upon any Security, including any Additional
Interest in respect thereof, when it becomes due and payable, and continuance of
such default for a period of, from the date hereof until the end of the Initial
Fixed Rate Period, three (3) days and, thereafter thirty (30) days;
or

     

    (b)        default
in the payment of the principal of or any premium on any Security at its
Maturity; or

     

    (c)        default
in the performance, or breach, of any covenant or warranty of the Company in
this Indenture and continuance of such default or breach for a period of thirty
(30) days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least twenty-five percent (25%) in aggregate principal amount of the Outstanding
Securities a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a “Notice of Default”
hereunder;

     

    (d)        the
entry by a court having jurisdiction in the premises of a decree or order
adjudging the Company a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Company or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any such decree
or order for relief or any such other decree or order unstayed and in effect for
a period of sixty (60) consecutive days;

     

    (e)        the
institution by the Company of proceedings to be adjudicated a bankrupt or
insolvent, or the consent by the Company to the institution of bankruptcy or
insolvency proceedings against it, or the filing by the Company of a petition or
answer or consent seeking reorganization or relief under any applicable federal
or state bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee,

     

    


    
      
        
           


        

        
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    sequestrator
or other similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of creditors, or
the admission by it in writing of its inability to pay its debts generally as
they become due and its willingness to be adjudicated a bankrupt or insolvent,
or the taking of corporate action by the Company in furtherance of any such
action; or

     

    (f)         the
Trust shall have voluntarily or involuntarily liquidated, dissolved, wound-up
its business or otherwise terminated its existence, except in connection with
(1) the distribution of the Securities to holders of the Preferred
Securities in liquidation of their interests in the Trust, (2) the
redemption of all of the outstanding Preferred Securities or (3) certain
mergers, consolidations or amalgamations, each as and to the extent permitted by
the Trust Agreement.

     

    SECTION
5.2.       Acceleration of Maturity; Rescission
and Annulment.

     

    (a)        If
an Event of Default occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than twenty-five percent (25%) in aggregate
principal amount of the Outstanding Securities may declare the principal amount
of all the Securities to be due and payable immediately, by a notice in writing
to the Company (and to the Trustee if given by Holders), provided, that if, upon
an Event of Default, the Trustee or the Holders of not less than twenty five
percent (25%) in principal amount of the Outstanding Securities fail to declare
the principal of all the Outstanding Securities to be immediately due and
payable, the holders of at least twenty five percent (25%) in aggregate
Liquidation Amount of the Preferred Securities then outstanding shall have the
right to make such declaration by a notice in writing to the Property Trustee,
the Company and the Trustee; and upon any such declaration the principal amount
of and the accrued interest (including any Additional Interest) on all the
Securities shall become immediately due and payable.

     

    (b)        At
any time after such a declaration of acceleration with respect to Securities has
been made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter provided in this Article V, the
Holders of a majority in aggregate principal amount of the Outstanding
Securities, by written notice to the Trustee, or the holders of a majority in
aggregate Liquidation Amount of the Preferred Securities, by written notice to
the Property Trustee, the Company and the Trustee, may rescind and annul such
declaration and its consequences if:

     

    (i)           the
Company has paid or deposited with the Trustee a sum sufficient to
pay:

     

      
(A)           all overdue
installments of interest on all Securities,

     

      
(B)           any accrued
Additional Interest on all Securities,

     

      (C)           the
principal of and any premium on any Securities that have become due otherwise
than by such declaration of acceleration and interest (including any Additional
Interest) thereon at the rate borne by the Securities, and

     

    


    
      
        
           


        

        
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(D)           all sums
paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, the Property Trustee and
their agents and counsel; and

     

    (ii)           all
Events of Default with respect to Securities, other than the non-payment of the
principal of Securities that has become due solely by such acceleration, have
been cured or waived as provided in Section
5.13.

     

    provided, that if the Holders
of such Securities fail to annul such declaration and waive such default, the
holders of not less than a majority in aggregate Liquidation Amount of the
Preferred Securities then outstanding shall also have the right to rescind and
annul such declaration and its consequences by written notice to the Property
Trustee, the Company and the Trustee, subject to the satisfaction of the
conditions set forth in paragraph (b) of this Section
5.2.  No such rescission shall affect any subsequent default or
impair any right consequent thereon.

     

    SECTION
5.3.       Collection of Indebtedness and Suits
for Enforcement by Trustee.

     

    (a)        The
Company covenants that if:

     

    (i)           default
is made in the payment of any installment of interest (including any Additional
Interest) on any Security when such interest becomes due and payable and such
default continues for a period of thirty (30) days, or

     

    (ii)           default
is made in the payment of the principal of and any premium on any Security at
the Maturity thereof,

     

    the
Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of
the Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest (including any Additional
Interest) and, in addition thereto, all amounts owing the Trustee under Section
6.6.

     

    (b)        If
the Company fails to pay such amounts forthwith upon such demand, the Trustee,
in its own name and as trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and unpaid, and may prosecute
such proceeding to judgment or final decree, and may enforce the same against
the Company or any other obligor upon such Securities and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon the Securities, wherever
situated.

     

    (c)        If
an Event of Default with respect to any Securities occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the
rights of the Holders of such Securities by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.

     

    


    
      
        
           


        

        
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    SECTION
5.4.       Trustee May File Proofs of
Claim.

     

    In
case of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or similar judicial proceeding relative to
the Company (or any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized hereunder in
order to have claims of the Holders and the Trustee allowed in any such
proceeding.  In particular, the Trustee shall be authorized to collect
and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to first pay to the Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts owing the Trustee, any
predecessor Trustee and other Persons under Section
6.6.

     

    SECTION
5.5.       Trustee May Enforce Claim Without
Possession of Securities.

     

    All
rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, subject to
Article XII and
after provision for the payment of all the amounts owing the Trustee, any
predecessor Trustee and other Persons under Section 6.6, be for
the ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.

     

    SECTION
5.6.       Application of Money
Collected.

     

    Any
money or property collected or to be applied by the Trustee with respect to the
Securities pursuant to this Article V shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money or property on account of principal or
any premium or interest (including any Additional Interest), upon presentation
of the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:

     

    FIRST:  To
the payment of all amounts due the Trustee, any predecessor Trustee and other
Persons under Section
6.6;

     

    SECOND:  To
the payment of all Senior Debt of the Company if and to the extent required by
Article
XII;

     

    THIRD:  Subject
to Article XII,
to the payment of the amounts then due and unpaid upon the Securities for
principal and any premium and interest (including any Additional Interest) in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on the Securities for principal and any premium and interest
(including any Additional Interest), respectively; and

     

    FOURTH:  The
balance, if any, to the Person or Persons entitled thereto.

     

    


    
      
        
           


        

        
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    SECTION
5.7.       Limitation on
Suits.

     

    Subject
to Section 5.8,
no Holder of any Securities shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture or for the appointment of
a custodian, receiver, assignee, trustee, liquidator, sequestrator (or other
similar official) or for any other remedy hereunder, unless:

     

    (a)        such
Holder has previously given written notice to the Trustee of a continuing Event
of Default with respect to the Securities;

     

    (b)        the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;

     

    (c)        such
Holder or Holders have offered to the Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred in compliance with such
request;

     

    (d)        the
Trustee after its receipt of such notice, request and offer of indemnity has
failed to institute any such proceeding for sixty (60) days; and

     

    (e)        no
direction inconsistent with such written request has been given to the Trustee
during such sixty (60)-day period by the Holders of a majority in aggregate
principal amount of the Outstanding Securities;

     

    it
being understood and intended that no one or more of such Holders shall have any
right in any manner whatever by virtue of, or by availing itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Securities, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.

     

    SECTION
5.8.      Unconditional Right of Holders to
Receive Principal, Premium, if any, and Interest, Direct Action by Holders of
Preferred Securities.

     

    Notwithstanding
any other provision in this Indenture, the Holder of any Security shall have the
right, which is absolute and unconditional, to receive payment of the principal
of and any premium on such Security at its Maturity and payment of interest
(including any Additional Interest) on such Security when due and payable and to
institute suit for the enforcement of any such payment, and such right shall not
be impaired without the consent of such Holder.  Any registered holder
of the Preferred Securities shall have the right, upon the occurrence of an
Event of Default described in Section 5.1(a) or
Section 5.1(b),
to institute a suit directly against the Company for enforcement of payment to
such holder of principal of and any premium and interest (including any
Additional Interest) on the Securities having a principal amount equal to the
aggregate Liquidation Amount of the Preferred Securities held by such
holder.

     

    SECTION
5.9.       Restoration of Rights and
Remedies.

     

    If
the Trustee, any Holder or any holder of Preferred Securities has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been

     

    


    
      
        
           


        

        
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    discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
such Holder or such holder of Preferred Securities, then and in every such case
the Company, the Trustee, such Holders and such holder of Preferred Securities
shall, subject to any determination in such proceeding, be restored severally
and respectively to their former positions hereunder, and thereafter all rights
and remedies of the Trustee and such Holder and such holder of Preferred
Securities shall continue as though no such proceeding had been
instituted.

     

    SECTION
5.10.     Rights and Remedies
Cumulative.

     

    Except
as otherwise provided in Section 3.6(f), no
right or remedy herein conferred upon or reserved to the Trustee or the Holders
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise.  The assertion or employment of any right
or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.

     

    SECTION
5.11.     Delay or Omission Not
Waiver.

     

    No
delay or omission of the Trustee or any Holder of any Securities or any holder
of any Preferred Security to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein.  Every right and
remedy given by this Article V or by law
to the Trustee or to the Holders and the right and remedy given to the holders
of Preferred Securities by Section 5.8 may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee, the Holders or the holders of Preferred Securities, as the case may
be.

     

    SECTION
5.12.     Control by
Holders.

     

    The
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities (or, as the case may be, the holders of a majority in
aggregate Liquidation Amount of Preferred Securities) shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee; provided,
that:

     

    (a)        such
direction shall not be in conflict with any rule of law or with this
Indenture,

     

    (b)        the
Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction, and

     

    (c)        subject
to the provisions of Section 6.2, the
Trustee shall have the right to decline to follow such direction if a
Responsible Officer or Officers of the Trustee shall, in good faith, reasonably
determine that the proceeding so directed would be unjustly prejudicial to the
Holders not joining in any such direction or would involve the Trustee in
personal liability.

     

    SECTION
5.13.     Waiver of Past
Defaults.

     

    (a)        The
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities or the holders of not less than a majority in aggregate
Liquidation

     

     

    
      
        
        

      

      
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    Amount
of the Preferred Securities may waive any past Event of Default hereunder and
its consequences except an Event of Default:

     

    (i)           in
the payment of the principal of or any premium or interest (including any
Additional Interest) on any Outstanding Security (unless such Event of Default
has been cured and the Company has paid to or deposited with the Trustee a sum
sufficient to pay all installments of interest (including any Additional
Interest) due and past due and all principal of and any premium on all
Securities due otherwise than by acceleration), or

     

    (ii)           in
respect of a covenant or provision hereof that under Article IX cannot be
modified or amended without the consent of each Holder of any Outstanding
Security.

     

    (b)        Any
such waiver shall be deemed to be made on behalf of the Holders of all the
Outstanding Securities or, in the case of a waiver by holders of Preferred
Securities issued by such Trust, by all holders of Preferred
Securities.

     

    (c)        Upon
any such waiver, such Event of Default shall cease to exist and any Event of
Default arising therefrom shall be deemed to have been cured for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Event of Default or impair any right consequent thereon.

     

    SECTION
5.14.     Undertaking for
Costs.

     

    All
parties to this Indenture agree, and each Holder of any Security by his or her
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section 5.14 shall
not apply to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than ten percent
(10%) in aggregate principal amount of the Outstanding Securities, or to any
suit instituted by any Holder for the enforcement of the payment of the
principal of or any premium on the Security after the Stated Maturity or any
interest (including any Additional Interest) on any Security after it is due and
payable.

     

    SECTION
5.15.     Waiver of Usury, Stay or Extension
Laws.

     

    The
Company covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.

     

    


    
      
        
           


        

        
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    ARTICLE
VI

     

    The
Trustee

     

    SECTION
6.1.       Corporate Trustee
Required.

     

    There
shall at all times be a Trustee hereunder with respect to the
Securities.  The Trustee shall be a corporation or national banking
association organized and doing business under the laws of the United States or
of any state thereof, authorized to exercise corporate trust powers, having or
having a parent that has a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by Federal or state authority and having
an office within the United States.  If such entity publishes reports
of condition at least annually, pursuant to law or to the requirements of such
supervising or examining authority, then, for the purposes of this Section 6.1, the
combined capital and surplus of such entity shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.  If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.1, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article
VI.

     

    SECTION
6.2.       Certain Duties and
Responsibilities.

     

    Except
during the continuance of an Event of Default:

     

    (i)           the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee;
and

     

    (ii)           in
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; provided, that in the case of
any such certificates or opinions that by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they substantially conform on their
face to the requirements of this Indenture.

     

    (b)        If
an Event of Default known to the Trustee has occurred and is continuing, the
Trustee shall, prior to the receipt of directions, if any, from the Holders of
at least a majority in aggregate principal amount of the Outstanding Securities
(or, if applicable, from the holders of at least a majority in aggregate
Liquidation Amount of Preferred Securities), exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of care and skill
in its exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs.

     

    (c)        Notwithstanding
the foregoing, no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.  Whether or not therein expressly so
provided, every provision of this Indenture relating to the conduct or affecting
the liability of or

     

    


    
      
        
           


        

        
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    affording
protection to the Trustee shall be subject to the provisions of this Section
6.2.  To the extent that, at law or in equity, the Trustee has
duties and liabilities relating to the Holders, the Trustee shall not be liable
to any Holder or any holder of Preferred Securities for the Trustee’s good faith
reliance on the provisions of this Indenture.  The provisions of this
Indenture, to the extent that they restrict the duties and liabilities of the
Trustee otherwise existing at law or in equity, are agreed by the Company and
the Holders and the holders of Preferred Securities to replace such other duties
and liabilities of the Trustee.

     

    (d)        No
provisions of this Indenture shall be construed to relieve the Trustee from
liability with respect to matters that are within the authority of the Trustee
under this Indenture for its own negligent action, negligent failure to act or
willful misconduct, except that:

     

    (i)           the
Trustee shall not be liable for any error or judgment made in good faith by an
authorized officer of the Trustee, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;

     

    (ii)           the
Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the Holders of at
least a majority in aggregate principal amount of the Outstanding Securities
(or, as the case may be, the holders of a majority in aggregate Liquidation
Amount of Preferred Securities) relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee under this
Indenture; and

     

    (iii)           the
Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed in writing with the Company and money held
by the Trustee in trust hereunder need not be segregated from other funds except
to the extent required by law.

     

    (e)        If
at any time the Trustee hereunder is not the same Person as the Property Trustee
under the Trust Agreement:

     

    (i)           whenever
a reference is made herein to the dissolution, termination or liquidation of the
Trust, the Trustee shall be entitled to assume that no such dissolution,
termination, or liquidation has occurred so long as the Securities are or
continue to be registered in the name of such Property Trustee, and the Trustee
shall be charged with notice or knowledge of such dissolution, termination or
liquidation only upon written notice thereof given to the Trustee by the
Depositor under the Trust Agreement; and

     

    (ii)           the
Trustee shall not be charged with notice or knowledge that any Person is a
holder of Preferred Securities or Common Securities issued by the Trust or
whether any group of holders of Preferred Securities constitutes any specified
percentage of all outstanding Preferred Securities for any purpose under this
Indenture, unless and until the Trustee is furnished with a list of holders by
such Property Trustee and the aggregate Liquidation Amount of the Preferred
Securities then outstanding.  The Trustee may conclusively rely and
shall be protected in relying on such list.

     

    (f)         Notwithstanding
Section 1.10,
the Trustee shall not, and shall not be deemed to, owe any fiduciary duty to the
holders of any of the Trust Securities issued by the Trust and
shall

     

    


    
      
        
           


        

        
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    not
be liable to any such holder (other than for the willful misconduct or
negligence of the Trustee) if the Trustee in good faith (i) pays over or
distributes to a registered Holder of the Securities or to the Company or to any
other Person, cash, property or securities to which such holders of such Trust
Securities shall be entitled or (ii) takes any action or omits to take any
action at the request of the Holder of such Securities.  Nothing in
this paragraph shall affect the obligation of any other such Person to hold such
payment for the benefit of, and to pay such amount over to, such holders of
Preferred Securities or Common Securities or their representatives.

     

    SECTION
6.3.       Notice of
Defaults.

     

    Within
ninety (90) days after the occurrence of any default actually known to the
Trustee, the Trustee shall give the Holders notice of such default unless such
default shall have been cured or waived; provided, that except in the
case of a default in the payment of the principal of or any premium or interest
on any Securities, the Trustee shall be fully protected in withholding the
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determines that withholding the notice is in the interest of holders of
Securities; and provided,
further, that in the case of any default of the character specified in
Section 5.1(c),
no such notice to Holders shall be given until at least thirty (30) days after
the occurrence thereof.  For the purpose of this Section 6.3, the term
“default” means any event which is, or after notice or lapse of time or both
would become, an Event of Default.

     

    SECTION
6.4.       Certain Rights of
Trustee.

     

    Subject
to the provisions of Section
6.2:

     

    (a)        the
Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting in good faith and in accordance with the terms hereof
upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note or other paper
or document believed by it to be genuine and to have been signed or presented by
the proper party or parties;

     

    (b)        if
(i) in performing its duties under this Indenture the Trustee is required to
decide between alternative courses of action, (ii) in construing any of the
provisions of this Indenture the Trustee finds ambiguous or inconsistent with
any other provisions contained herein or (iii) the Trustee is unsure of the
application of any provision of this Indenture, then, except as to any matter as
to which the Holders are entitled to decide under the terms of this Indenture,
the Trustee shall deliver a notice to the Company requesting the Company’s
written instruction as to the course of action to be taken and the Trustee shall
take such action, or refrain from taking such action, as the Trustee shall be
instructed in writing to take, or to refrain from taking, by the Company;
provided, that if the Trustee does not receive such instructions from the
Company within ten Business Days after it has delivered such notice or such
reasonably shorter period of time set forth in such notice, the Trustee may, but
shall be under no duty to, take such action, or refrain from taking such action,
as the Trustee shall deem advisable and in the best interests of the Holders, in
which event the Trustee shall have no liability except for its own negligence,
bad faith or willful misconduct;

     

    


    
      
        
           


        

        
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    (c)         any
request or direction of the Company shall be sufficiently evidenced by a Company
Request or Company Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;

     

    (d)        the
Trustee may consult with counsel (which counsel may be counsel to the Trustee,
the Company or any of its Affiliates, and may include any of its employees) and
the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;

     

    (e)        the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders
or any holder of Preferred Securities pursuant to this Indenture, unless such
Holders (or such holders of Preferred Securities) shall have offered to the
Trustee security or indemnity reasonably satisfactory to it against the costs,
expenses (including reasonable attorneys’ fees and expenses) and liabilities
that might be incurred by it in compliance with such request or direction,
including reasonable advances as may be requested by the Trustee;

     

    (f)         the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, indenture, note or other paper
or document, but the Trustee in its discretion may make such inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney;

     

    (g)        the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, attorneys, custodians or
nominees and the Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent, attorney, custodian or nominee
appointed with due care by it hereunder;

     

    (h)        whenever
in the administration of this Indenture the Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or right or taking any
other action with respect to enforcing any remedy or right hereunder, the
Trustees (i) may request instructions from the Holders (which instructions may
only be given by the Holders of the same aggregate principal amount of
Outstanding Securities as would be entitled to direct the Trustee under this
Indenture in respect of such remedy, right or action), (ii) may refrain from
enforcing such remedy or right or taking such action until such instructions are
received and (iii) shall be protected in acting in accordance with such
instructions;

     

    (i)         except
as otherwise expressly provided by this Indenture, the Trustee shall not be
under any obligation to take any action that is discretionary under the
provisions of this Indenture;

     

    (j)         without
prejudice to any other rights available to the Trustee under applicable law,
when the Trustee incurs expenses or renders services in connection with any
bankruptcy, insolvency or other proceeding referred to in clauses (d) or (e) of
the definition of Event of Default, such expenses (including legal fees and
expenses of its agents and counsel) and the

     

    


    
      
        
           


        

        
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    compensation
for such services are intended to constitute expenses of administration under
any bankruptcy laws or law relating to creditors rights generally;

     

    (k)        whenever
in the administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, conclusively rely upon
an Officers’ Certificate addressing such matter, which, upon receipt of such
request, shall be promptly delivered by the Company;

     

    (l)         the
Trustee shall not be charged with knowledge of any Event of Default unless
either (i) a Responsible Officer of the Trustee shall have actual knowledge or
(ii) the Trustee shall have received written notice thereof from the Company or
a Holder; and

     

    (m)       in
the event that the Trustee is also acting as Paying Agent, Authenticating Agent,
Calculation Agent or Securities Registrar hereunder, the rights and protections
afforded to the Trustee pursuant to this Article VI shall also
be afforded such Paying Agent, Authenticating Agent, Calculation Agent or
Securities Registrar.

     

    SECTION
6.5.       May Hold
Securities.

     

    The
Trustee, any Authenticating Agent, any Paying Agent, any Securities Registrar or
any other agent of the Company, in its individual or any other capacity, may
become the owner or pledgee of Securities and may otherwise deal with the
Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Securities Registrar or such other
agent.

     

    SECTION
6.6.       Compensation; Reimbursement;
Indemnity.

     

    (a)        The
Company agrees:

     

    (i)           to
pay to the Trustee from time to time reasonable compensation for all services
rendered by it hereunder in such amounts as the Company and the Trustee shall
agree from time to time (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);

     

    (ii)           to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence, bad faith or
willful misconduct; and

     

    (iii)           to
the fullest extent permitted by applicable law, to indemnify the Trustee
(including in its individual capacity) and its Affiliates, and their officers,
directors, shareholders, agents, representatives and employees for, and to hold
them harmless against, any loss, damage, liability, tax (other than income,
franchise or other taxes imposed on amounts paid pursuant to (i) or (ii)
hereof), penalty, expense or claim of any kind or nature whatsoever incurred
without negligence, bad faith or willful misconduct on its part arising out of
or in connection with the acceptance or administration of this

     

    


    
      
        
           


        

        
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    trust
or the performance of the Trustee’s duties hereunder, including the advancement
of funds to cover the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of its powers
or duties hereunder.

     

    (b)        To
secure the Company’s payment obligations in this Section 6.6, the
Company hereby grants and pledges to the Trustee and the Trustee shall have a
lien prior to the Securities on all money or property held or collected by the
Trustee, other than money or property held in trust to pay principal and
interest on particular Securities.  Such lien shall survive the
satisfaction and discharge of this Indenture or the resignation or removal of
the Trustee.

     

    (c)        The
obligations of the Company under this Section 6.6 shall
survive the satisfaction and discharge of this Indenture and the earlier
resignation or removal of the Trustee.

     

    (d)        In
no event shall the Trustee be liable for any indirect, special, punitive or
consequential loss or damage of any kind whatsoever, including, but not limited
to, lost profits, even if the Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action.

     

    (e)        In
no event shall the Trustee be liable for any failure or delay in the performance
of its obligations hereunder because of circumstances beyond its control,
including, but not limited to, acts of God, flood, war (whether declared or
undeclared), terrorism, fire, riot, embargo, government action, including any
laws, ordinances, regulations, governmental action or the like which delay,
restrict or prohibit the providing of the services contemplated by this
Indenture.

     

    SECTION
6.7.       Resignation and Removal; Appointment
of Successor.

     

    (a)        No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article VI shall
become effective until the acceptance of appointment by the successor Trustee
under Section
6.8.

     

    (b)        The
Trustee may resign at any time by giving written notice thereof to the
Company.

     

    (c)        Unless
an Event of Default shall have occurred and be continuing, the Trustee may be
removed at any time by the Company by a Board Resolution.  If an Event
of Default shall have occurred and be continuing, the Trustee may be removed by
Act of the Holders of a majority in aggregate principal amount of the
Outstanding Securities, delivered to the Trustee and to the
Company.

     

    (d)        If
the Trustee shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of Trustee for any reason, at a time when no
Event of Default shall have occurred and be continuing, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee, and such successor
Trustee and the retiring Trustee shall comply with the applicable requirements
of Section
6.8.  If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any reason, at a time when an Event of Default shall have occurred and be
continuing, the Holders, by Act of the Holders of a majority in aggregate
principal amount of the Outstanding Securities, shall

     

    


    
      
        
           


        

        
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    promptly
appoint a successor Trustee, and such successor Trustee and the retiring Trustee
shall comply with the applicable requirements of Section
6.8.  If no successor Trustee shall have been so appointed by
the Company or the Holders and accepted its appointment within sixty (60) days
after the giving of a notice of resignation by the Trustee or the removal of the
Trustee in the manner required by Section 6.8, any
Holder who has been a bona fide Holder of a Security for at least six months
(or, if the Securities have been Outstanding for less than six (6) months, the
entire period of such lesser time) may, on behalf of such Holder and all others
similarly situated, and any resigning Trustee may, at the expense of the
Company, petition any court of competent jurisdiction for the appointment of a
successor Trustee.

     

    (e)        The
Company shall give notice to all Holders in the manner provided in Section 1.6 of each
resignation and each removal of the Trustee and each appointment of a successor
Trustee.  Each notice shall include the name of the successor Trustee
and the address of its Corporate Trust Office.

     

    SECTION
6.8.       Acceptance of Appointment by
Successor.

     

    (a)        In
case of the appointment hereunder of a successor Trustee, each successor Trustee
so appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee
hereunder.

     

    (b)        Upon
request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all rights, powers and trusts referred to in paragraph (a) of
this Section
6.8.

     

    (c)        No
successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article
VI.

     

    SECTION
6.9.       Merger, Conversion, Consolidation or
Succession to Business.

     

    Any
Person into which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding to
all or substantially all of the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereto, provided, that such Person
shall be otherwise qualified and eligible under this Article
VI.  In case any Securities shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation or as otherwise provided above in this Section 6.9 to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated, and in case any Securities shall not have been authenticated,
any successor to the Trustee may

     

    


    
      
        
           


        

        
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    authenticate
such Securities either in the name of any predecessor Trustee or in the name of
such successor Trustee, and in all cases the certificate of authentication shall
have the full force which it is provided anywhere in the Securities or in this
Indenture that the certificate of the Trustee shall have.

     

    SECTION
6.10.     Not Responsible for Recitals or
Issuance of Securities.

     

    The
recitals contained herein and in the Securities, except the Trustee’s
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness.  The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the
Securities.  Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of the Securities or the
proceeds thereof.

     

    SECTION
6.11.     Appointment of Authenticating
Agent.

     

    (a)           The
Trustee may appoint an Authenticating Agent or Agents with respect to the
Securities, which shall be authorized to act on behalf of the Trustee to
authenticate Securities issued upon original issue and upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section 3.6, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder.  Wherever reference is made in this Indenture to
the authentication and delivery of Securities by the Trustee or the Trustee’s
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating
Agent.  Each Authenticating Agent shall be acceptable to the Company
and shall at all times be an entity organized and doing business under the laws
of the United States of America, or of any State or Territory thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by Federal or state authority.  If such
Authenticating Agent publishes reports of condition at least annually pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section 6.11 the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published.  If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section 6.11, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section
6.11.

     

    (b)           Any
Person into which an Authenticating Agent may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party,
or any Person succeeding to all or substantially all of the corporate trust
business of an Authenticating Agent shall be the successor Authenticating Agent
hereunder, provided
such Person shall be otherwise eligible under this Section 6.11, without
the execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent.

     

    (c)           An
Authenticating Agent may resign at any time by giving written notice thereof to
the Trustee and to the Company.  The Trustee may at any time terminate
the agency of an

     

    


    
      
        
           


        

        
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    Authenticating
Agent by giving written notice thereof to such Authenticating Agent and to the
Company.  Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 6.11, the
Trustee may appoint a successor Authenticating Agent eligible under the
provisions of this Section 6.11, which
shall be acceptable to the Company, and shall give notice of such appointment to
all Holders.  Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent.

     

    (d)        The
Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section 6.11 in such
amounts as the Company and the Authenticating Agent shall agree from time to
time.

     

    (e)        If
an appointment of an Authenticating Agent is made pursuant to this Section 6.11, the
Securities may have endorsed thereon, in addition to the Trustee’s certificate
of authentication, an alternative certificate of authentication in the following
form:

     

    This
is one of the Securities referred to in the within mentioned
Indenture.

     

    
      	
              Dated:

            	
              Wilmington Trust
      Company, not in its individual capacity, but solely as
      Trustee

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              By:

            	 
      
	 
      	 
      	
              Authenticating
      Agent

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              By:

            	 
      
	 
      	 
      	
              Authorized
      Signatory

            


    

    


     

    ARTICLE
VII

     

    Holder’s
Lists and Reports by Company

     

    SECTION
7.1.       Company to Furnish Trustee Names and
Addresses of Holders.

     

    The
Company will furnish or cause to be furnished to the Trustee:

     

    (a)        semiannually,
on or before June 30 and December 31 of each year, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders as of
a date not more than fifteen (15) days prior to the delivery thereof,
and

     

    (b)        at
such other times as the Trustee may request in writing, within thirty (30) days
after the receipt by the Company of any such request, a list of similar form and
content as of a date not more than fifteen (15) days prior to the time such list
is furnished,

     

    


    
      
        
           


        

        
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    in
each case to the extent such information is in the possession or control of the
Company and has not otherwise been received by the Trustee in its capacity as
Securities Registrar.

     

    SECTION
7.2.       Preservation of Information,
Communications to Holders.

     

    (a)        The
Trustee shall preserve, in as current a form as is reasonably practicable, the
names and addresses of Holders contained in the most recent list furnished to
the Trustee as provided in Section 7.1 and the
names and addresses of Holders received by the Trustee in its capacity as
Securities Registrar.  The Trustee may destroy any list furnished to
it as provided in Section 7.1 upon
receipt of a new list so furnished.

     

    (b)        The
rights of Holders to communicate with other Holders with respect to their rights
under this Indenture or under the Securities, and the corresponding rights and
privileges of the Trustee, shall be as provided in the Trust Indenture
Act.

     

    (c)        Every
Holder of Securities, by receiving and holding the same, agrees with the Company
and the Trustee that neither the Company nor the Trustee nor any agent of either
of them shall be held accountable by reason of the disclosure of information as
to the names and addresses of the Holders made pursuant to the Trust Indenture
Act.

     

    SECTION
7.3.       Reports by Company and Trustee.

     

    (a)        The
Company shall furnish to the Holders and to prospective purchasers of
Securities, upon their request, the information required to be furnished
pursuant to Rule 144A (d)(4) under the Securities Act.  The delivery
requirement set forth in the preceding sentence may be satisfied by compliance
with Section
7.3(b) hereof.

     

    (b)        The
Company shall furnish to each of (i) the Trustee, (ii) the Holders and to
subsequent holders of Securities, (iii) Attentus CDO II, Ltd., c/o Attentus
Capital Management, LLC, 2107 Wilson Boulevard, Suite 400, Arlington, VA 22201
(or such other address as designated by Attentus CDO II, Ltd.), (iv) any
beneficial owner of the Securities reasonably identified to the Company (which
identification may be made either by such beneficial owner or by Attentus CDO
II, Ltd.), and (v) any designee of (i), (ii), (iii), or (iv) above, a duly
completed and executed certificate in the form attached hereto as Exhibit A, including
the financial statements referenced in such Exhibit, which certificate and
financial statements shall be so furnished by the Company not later than
forty-five (45) days after the end of each of the first three fiscal quarters of
each fiscal year of the Company and not later than ninety (90) days after the
end of each fiscal year of the Company, to the extent such financial statements
are not available by such dates via EDGAR (as defined below); if the Company is
not a company reporting with the Securities and Exchange Commission (the “Commission”), such Exhibit
and the financial statements referenced in said Exhibit shall be
delivered.  The delivery requirements under this Section 7.3(b) may be
satisfied by compliance with Section 8.16(b) of
the Trust Agreement.

     

    (c)        The
Trustee shall receive all reports, certificates and information, which it is
entitled to receive under each of the Operative Documents (as defined in the
Trust Agreement), and deliver to (i) each Purchaser and (ii) a designee of (i)
above, as identified in writing to the Trustee, all such reports, certificates
or information promptly upon receipt thereof.

     

    


    
      
        
           


        

        
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    (d)        If
the Company intends to file its annual and quarterly information with the
Commission in electronic form pursuant to Regulation S-T of the Commission using
the Commission’s Electronic Data Gathering, Analysis and Retrieval (“EDGAR”)
system, the Company shall notify the Trustee in the manner prescribed herein of
each such annual and quarterly filing.  The Trustee is hereby
authorized and directed to access the EDGAR system for purposes of retrieving
the financial information so filed.  Compliance with the foregoing
shall constitute delivery by the Company of its financial statements to the
Trustee in compliance with the provisions of Section 314(a) of the Trust
Indenture Act, if applicable.  The Trustee shall have no duty to
search for or obtain any electronic or other filings that the Company makes with
the Commission, regardless of whether such filings are periodic, supplemental or
otherwise.  Delivery of reports, information and documents to the
Trustee pursuant to this Section
7.3(c) shall be solely for purposes of compliance with this Section
7.3(c) and, if applicable, with Section 314(a) of the Trust Indenture
Act.  The Trustee’s receipt of such reports, information and documents
shall not constitute notice to it of the content thereof or any matter
determinable from the content thereof, including the Company’s compliance with
any of its covenants hereunder, as to which the Trustee is entitled to rely upon
Officers’ Certificates.

     

     

    ARTICLE
VIII

     

    Consolidation,
Merger, Conveyance, Transfer or Lease

     

    SECTION
8.1.       Company May Consolidate, Etc., Only
on Certain Terms.

     

    The
Company shall not consolidate with or merge into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person, and no Person shall consolidate with or merge into the Company or
convey, transfer or lease its properties and assets substantially as an entirety
to the Company, unless:

     

    (a)        if
the Company shall consolidate with or merge into another Person or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person, the entity formed by such consolidation or into which the Company is
merged or the Person that acquires by conveyance or transfer, or that leases,
the properties and assets of the Company substantially as an entirety shall be
an entity organized and existing under the laws of the United States of America
or any State or Territory thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form reasonably satisfactory to the Trustee, the due and
punctual payment of the principal of and any premium and interest (including any
Additional Interest) on all the Securities and the performance of every covenant
of this Indenture on the part of the Company to be performed or
observed;

     

    (b)        immediately
after giving effect to such transaction, no Event of Default, and no event that,
after notice or lapse of time, or both, would constitute an Event of Default,
shall have happened and be continuing; and

     

    (c)        the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer or
lease and, if a supplemental indenture is required in connection with such
transaction, any such supplemental

     

    


    
      
        
           


        

        
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    indenture
comply with this Article VIII and that
all conditions precedent herein provided for relating to such transaction have
been complied with; and the Trustee may rely upon such Officers’ Certificate and
Opinion of Counsel as conclusive evidence that such transaction complies with
this Section
8.1.

     

    SECTION
8.2.       Successor Company
Substituted.

     

    (a)        Upon
any consolidation or merger by the Company with or into any other Person, or any
conveyance, transfer or lease by the Company of its properties and assets
substantially as an entirety to any Person in accordance with Section 8.1 and the
execution and delivery to the Trustee of the supplemental indenture described in
Section 8.1(a), the successor entity formed by such consolidation or into which
the Company is merged or to which such conveyance, transfer or lease is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein; and in the event of any such
conveyance or transfer, following the execution and delivery of such
supplemental indenture, the Company shall be discharged from all obligations and
covenants under the Indenture and the Securities.

     

    (b)        Such
successor Person may cause to be executed, and may issue either in its own name
or in the name of the Company, any or all of the Securities issuable hereunder
that theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor Person instead of the Company and
subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities that
previously shall have been signed and delivered by the officers of the Company
to the Trustee for authentication, and any Securities that such successor Person
thereafter shall cause to be executed and delivered to the Trustee on its
behalf.  All the Securities so issued shall in all respects have the
same legal rank and benefit under this Indenture as the Securities theretofore
or thereafter issued in accordance with the terms of this
Indenture.

     

    (c)        In
case of any such consolidation, merger, sale, conveyance or lease, such changes
in phraseology and form may be made in the Securities thereafter to be issued as
may be appropriate to reflect such occurrence.

     

     

    ARTICLE
IX

     

    Supplemental
Indentures

     

    SECTION
9.1.       Supplemental Indentures without
Consent of Holders.

     

    Without
the consent of any Holders, the Company, when authorized by a Board Resolution,
and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form reasonably satisfactory to the Trustee,
for any of the following purposes:

     

    (a)        to
evidence the succession of another Person to the Company, and the assumption by
any such successor of the covenants of the Company herein and in the Securities;
or

     

    


    
      
        
           


        

        
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    (b)        to
evidence and provide for the acceptance of appointment hereunder by a successor
trustee; or

     

    (c)        to
cure any ambiguity, to correct or supplement any provision herein that may be
defective or inconsistent with any other provision herein, or to make or amend
any other provisions with respect to matters or questions arising under this
Indenture, which shall not be inconsistent with the other provisions of this
Indenture, provided, that such action pursuant to this clause (c) shall not
adversely affect in any material respect the interests of any Holders or the
holders of the Preferred Securities; or

     

    (d)        to
comply with the rules and regulations of any securities exchange or automated
quotation system on which any of the Securities may be listed, traded or quoted;
or

     

    (e)        to
add to the covenants, restrictions or obligations of the Company or to add to
the Events of Default, provided, that such action pursuant to this clause (e)
shall not adversely affect in any material respect the interests of
any Holders or the holders of the Preferred Securities; or

     

    (f)       
 to modify, eliminate or add to any provisions of the Indenture or the
Securities to such extent as shall be necessary to ensure that the Securities
are treated as indebtedness of the Company for United States Federal income tax
purposes, provided, that such action pursuant to this clause (f) shall not
adversely affect in any material respect the interests of any Holders, or the
holders of the Preferred Securities.

     

    SECTION
9.2.       Supplemental Indentures with Consent
of Holders.

     

    (a)        Subject
to Section 9.1,
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities under this
Indenture; provided,
that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security,

     

    (i)           change
the Stated Maturity of the principal or any premium of any Security or change
the date of payment of any installment of interest (including any Additional
Interest) on any Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption thereof or change
the place of payment where, or the coin or currency in which, any Security or
interest thereon is payable, or restrict or impair the right to institute suit
for the enforcement of any such payment on or after such date, or

     

    (ii)           reduce
the percentage in aggregate principal amount of the Outstanding Securities, the
consent of whose Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver of compliance with any
provision of this Indenture or of defaults hereunder and their consequences
provided for in this Indenture, or

     

    


    
      
        
           


        

        
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    (iii)           modify
any of the provisions of this Section 9.2, Section 5.13 or Section 10.7, except
to increase any percentage in aggregate principal amount of the Outstanding
Securities, the consent of whose Holders is required for any reason, or to
provide that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Security.

     

    (iv)           provided, further, that, so long as any
Preferred Securities remain outstanding, no amendment under this Section 9.2 shall be
effective until the holders of a majority in Liquidation Amount of the Preferred
Securities shall have consented to such amendment; provided, further, that if the consent
of the Holder of each Outstanding Security is required for any amendment under
this Indenture, such amendment shall not be effective until the holder of each
Outstanding Preferred Security shall have consented to such
amendment.

     

    (b)        It
shall not be necessary for any Act of Holders under this Section 9.2 to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.

     

    SECTION
9.3.       Execution of Supplemental
Indentures.

     

    In
executing or accepting the additional trusts created by any supplemental
indenture permitted by this Article IX or the
modifications thereby of the trusts created by this Indenture, the Trustee shall
be entitled to receive, and shall be fully protected in conclusively relying
upon, an Officers’ Certificate and an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture, and that all conditions precedent herein provided for relating to
such action have been complied with.  The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture that affects the
Trustee’s own rights, duties, indemnities or immunities under this Indenture or
otherwise.  Copies of the final form of each supplemental indenture
shall be delivered by the Trustee at the expense of the Company to each Holder,
and, if the Trustee is the Property Trustee, to each holder of Preferred
Securities, promptly after the execution thereof.

     

    SECTION
9.4.       Effect of Supplemental
Indentures.

     

    Upon
the execution of any supplemental indenture under this Article IX, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities and every holder of Preferred Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.

     

    SECTION
9.5.       Reference in Securities to
Supplemental Indentures.

     

    Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and
shall if required by the Company, bear a notation in form approved by the
Company as to any matter provided for in such supplemental
indenture.  If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities.

     

    


    
      
        
           


        

        
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    ARTICLE
X

     

    Covenants

     

    SECTION
10.1.     Payment of Principal, Premium, if
any, and Interest.

     

    The
Company covenants and agrees for the benefit of the Holders of the Securities
that it will duly and punctually pay the principal of and any premium and
interest (including any Additional Interest) on the Securities in accordance
with the terms of the Securities and this Indenture.

     

    SECTION
10.2.     Money for Security Payments to be
Held in Trust.

     

    (a)        If
the Company shall at any time act as its own Paying Agent with respect to the
Securities, it will, on or before each due date of the principal of and any
premium or interest (including any Additional Interest) on the Securities,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium or interest (including
Additional Interest) so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and will promptly notify
the Trustee in writing of its failure so to act.

     

    (b)        Whenever
the Company shall have one or more Paying Agents, it will, prior to 10:00 a.m.,
New York City time, on each due date of the principal of or any premium or
interest (including any Additional Interest) on any Securities, deposit with
such Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided in the Trust Indenture Act and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its failure to so
act.

     

    (c)        The
Company will cause each Paying Agent for the Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section 10.2, that
such Paying Agent will (i) comply with the provisions of this Indenture and the
Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities) in the making of any payment in respect of the Securities, upon the
written request of the Trustee, forthwith pay to the Trustee all sums held in
trust by such Paying Agent for payment in respect of the
Securities.

     

    (d)        The
Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such
money.

     

    (e)         Any
money deposited with the Trustee or any Paying Agent, or then held by the
Company in trust for the payment of the principal of and any premium or interest
(including any Additional Interest) on any Security and remaining unclaimed for
two years after such principal

     

    


    
      
        
           


        

        
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    and
any premium or interest has become due and payable shall (unless otherwise
required by mandatory provision of applicable escheat or abandoned or unclaimed
property law) be paid on Company Request to the Company, or (if then held by the
Company) shall (unless otherwise required by mandatory provision of applicable
escheat or abandoned or unclaimed property law) be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than thirty (30) days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the
Company.

     

    SECTION
10.3.     Statement as to
Compliance.

     

    The
Company shall deliver to the Trustee, within one hundred and twenty (120) days
after the end of each fiscal year of the Company ending after the date hereof,
an Officers’ Certificate (substantially in the form attached hereto as Exhibit B) covering
the preceding fiscal year, stating whether or not to the knowledge of the
signers thereof the Company is in default in the performance or observance of
any of the terms, provisions and conditions of this Indenture (without regard to
any period of grace or requirement of notice provided hereunder), and if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.

     

    SECTION
10.4.     Calculation
Agent.

     

    (a)        The
Company hereby agrees that for so long as any of the Securities remain
Outstanding, there will at all times be an agent appointed to calculate LIBOR in
respect of each Interest Payment Date in accordance with the terms of Schedule
A (the “Calculation
Agent”).  The Company has initially appointed the Property
Trustee as Calculation Agent for purposes of determining LIBOR for each Interest
Payment Date.  The Calculation Agent may be removed by the Company at
any time.  Notwithstanding the foregoing, so long as the Property
Trustee holds any of the Securities, the Calculation Agent shall be the Property
Trustee.  If the Calculation Agent is unable or unwilling to act as
such or is removed by the Company, the Company will promptly appoint as a
replacement Calculation Agent the London office of a leading bank which is
engaged in transactions in Eurodollar deposits in the international Eurodollar
market and which does not control or is not controlled by or under common
control with the Company or its Affiliates.  The Calculation Agent may
not resign its duties without a successor having been duly
appointed.

     

    (b)        The
Calculation Agent shall be required to agree that, as soon as possible after
11:00 a.m. (London time) on each LIBOR Determination Date (as defined in Schedule A), but in
no event later than 11:00 a.m. (London time) on the Business Day immediately
following each LIBOR Determination Date, the Calculation Agent will calculate
the interest rate (the Interest Payment shall be rounded to the nearest cent,
with half a cent being rounded upwards) for the

     

    


    
      
        
           


        

        
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    related
Interest Payment Date, and will communicate such rate and amount to the Company,
the Trustee, each Paying Agent and the Depositary.  The Calculation
Agent will also specify to the Company the quotations upon which the foregoing
rates and amounts are based and, in any event, the Calculation Agent shall
notify the Company before 5:00 p.m.  (London time) on each LIBOR
Determination Date that either:  (i) it has determined or is in
the process of determining the foregoing rates and amounts or (ii) it has
not determined and is not in the process of determining the foregoing rates and
amounts, together with its reasons therefor.  The Calculation Agent’s
determination of the foregoing rates and amounts for any Interest Payment Date
will (in the absence of manifest error) be final and binding upon all
parties.  For the sole purpose of calculating the interest rate for
the Securities, “Business Day” shall be defined as any day on which dealings in
deposits in Dollars are transacted in the London interbank market.

     

    SECTION
10.5.     Additional Tax
Sums.

     

    So
long as no Event of Default has occurred and is continuing, if (a) the Trust is
the Holder of all of the Outstanding Securities and (b) a Tax Event described in
clause (i) or (iii) in the definition of Tax Event in Section 1.1 hereof
has occurred and is continuing, the Company shall pay to the Trust (and its
permitted successors or assigns under the related Trust Agreement) for so long
as the Trust (or its permitted successor or assignee) is the registered holder
of the Outstanding Securities, such amounts as may be necessary in order that
the amount of Distributions (including any Additional Interest Amount (as
defined in the Trust Agreement)) then due and payable by the Trust on the
Preferred Securities and Common Securities that at any time remain outstanding
in accordance with the terms thereof shall not be reduced as a result of any
Additional Taxes arising from such Tax Event (additional such amounts payable by
the Company to the Trust, the “Additional Tax Sums”).  Whenever in this
Indenture or the Securities there is a reference in any context to the payment
of principal of or interest on the Securities, such mention shall be deemed to
include mention of the payments of the Additional Tax Sums provided for in this
Section 10.5 to
the extent that, in such context, Additional Tax Sums are, were or would be
payable in respect thereof pursuant to the provisions of this Section 10.5 and
express mention of the payment of Additional Tax Sums (if applicable) in any
provisions hereof shall not be construed as excluding Additional Tax Sums in
those provisions hereof where such express mention is not made.

     

    SECTION
10.6.     Additional
Covenants.

     

    (a)        The
Company covenants and agrees with each Holder of Securities that if an Event of
Default shall have occurred and be continuing, it shall not (i) declare or pay
any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company’s Equity Interests, (ii)
vote in favor of or permit or otherwise allow any of its Subsidiaries to declare
or pay any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to or otherwise retire, any shares of any such
Subsidiary’s preferred stock or other Equity Interests entitling the holders
thereof to a stated rate of return (for the avoidance of doubt, whether such
preferred stock or other Equity Interests are perpetual or otherwise), or (iii)
make any payment of principal of or any interest or premium, if any, on or
repay, repurchase or redeem any debt securities of the Company that rank pari
passu in all respects with or junior in interest to the Securities (other than
(A) repurchases, redemptions or other acquisitions of Equity Interests of the
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    employment
contract, benefit plan or other similar arrangement with or for the benefit of
any one or more employees, officers, directors or consultants, in connection
with a dividend reinvestment or stockholder stock purchase or similar plan with
respect to any Equity Interests or in connection with the issuance of Equity
Interests of the Company (or securities convertible into or exercisable for such
Equity Interests) as consideration in an acquisition transaction entered into
prior to the Event of Default, (B) as a result of an exchange or conversion of
any class or series of the Company’s Equity Interests (or any Equity Interests
of a Subsidiary of the Company) for any class or series of the Company’s Equity
Interests or of any class or series of the Company’s indebtedness for any class
or series of the Company’s Equity Interests, (C) the purchase of fractional
interests in Equity Interests of the Company pursuant to the conversion or
exchange provisions of such Equity Interests or the security being converted or
exchanged, (D) any declaration of a dividend in connection with any Rights Plan,
the issuance of rights, Equity Interests or other property under any Rights Plan
or the redemption or repurchase of rights pursuant thereto, (E) any dividend in
the form of Equity Interests, warrants, options or other rights where the
dividend Equity Interests or the Equity Interests issuable upon exercise of such
warrants, options or other rights is the same Equity Interests as that on which
the dividend is being paid or ranks pari passu with or junior to such Equity
Interests) or (F) any transaction consented to in writing by Holders of not less
than a majority in principal amount of Outstanding Securities.

     

    (b)        The
Company also covenants with each Holder of Securities (i) to hold, directly or
indirectly, one hundred percent (100%) of the Common Securities of the Trust,
provided, that any permitted
successor of the Company hereunder may succeed to the Company’s ownership of
such Common Securities, (ii) as holder of such Common Securities, not to
voluntarily dissolve, wind-up or liquidate the Trust other than (A) in
connection with a distribution of the Securities to the holders of the Preferred
Securities in liquidation of the Trust or (B) in connection with certain
mergers, consolidations or amalgamations permitted by the Trust Agreement and
(iii) to use its reasonable commercial efforts, consistent with the terms and
provisions of the Trust Agreement, to cause the Trust to continue to be taxable
as a grantor trust and not as a corporation for United States Federal income tax
purposes.

     

    (c)        From
the date hereof until the end of the Initial Fixed Rate Period, the Company
shall not declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of the Company’s
Equity Interests, other than (a) with the prior, express, written consent of the
Holders of not less than a majority in principal amount of the Outstanding
Securities, or (b) dividends or distributions which are reasonably necessary to
maintain the REIT status of the Company for federal income and excise tax
purposes and avoid imposition of federal income and excise tax on the Company
with respect to such distributed taxable income or net capital gains; provided,
that such distributions or dividends as described in clause (b) above shall (i)
to the extent paid to holder of the Company’s common stock (A) not be in excess
of $2,500,000 (in the aggregate in cash) and (B) be in the form of the Company’s
common stock to the maximum extent permissible as stated by the Internal Revenue
Service regulations, rulings, revenue procedures, notices, announcements, or
other authoritative pronouncements at the time of such dividend or distribution
with only the balance payable in cash, and (ii) to the extent paid to holders of
the Company’s preferred stock, be in an amount no greater than that required to
be distributed to such holders to permit the distributions and dividends to
holders of the Company’s common stock permitted by clause (i)
above.

     

    


    
      
        
           


        

        
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    (d)        Subject
to Section 10.6(c), the Company also agrees to use its reasonable best efforts
to meet the requirements to qualify, effective for the fiscal year ending
December 31, 2009 and all future fiscal years, as a REIT under the
Code.

     

    SECTION
10.7.     Waiver of
Covenants.

     

    The
Company may omit in any particular instance to comply with any covenant or
condition contained in Section 10.6 if,
before or after the time for such compliance, the Holders of at least a majority
in aggregate principal amount of the Outstanding Securities shall, by Act of
such Holders, and at least a majority of the aggregate Liquidation Amount of the
Preferred Securities then outstanding, by consent of such holders, either waive
such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company in respect of any
such covenant or condition shall remain in full force and effect.

     

    SECTION
10.8.     Treatment of
Securities.

     

    The
Company will treat the Securities as indebtedness, and the amounts, other than
payments of principal, payable in respect of the principal amount of such
Securities as interest, for all U.S. federal income tax purposes.  All
payments in respect of the Securities will be made free and clear of U.S.
withholding tax to any beneficial owner thereof that has provided an Internal
Revenue Service Form W-9 or W-8BEN (or any substitute or successor form)
establishing its U.S. or non-U.S. status for U.S. federal income tax purposes,
or any other applicable form establishing a complete exemption from U.S.
withholding tax.

     

    SECTION
10.9.     Financial
Covenants

     

    Without
the express, prior and written consent of the Holders of not less than a
majority in principal amount of the Outstanding Securities, for so long as
Securities are Outstanding under this Indenture, and during the Initial Fixed
Rate Period, the Company shall not, nor shall it permit its Subsidiaries to,
create, incur, issue or otherwise become liable for any Debt, other than (i)
Debt in the form of trade Debt or similar Debt incurred in the ordinary course
of the Company’s business and (ii) Debt that is incurred solely in exchange for
or to provide the funds necessary to repurchase, redeem, refinance or satisfy,
in whole or in part, the Debt described in Schedule B.

     

     

    ARTICLE
XI

     

    Redemption
of Securities

     

    SECTION
11.1.     Optional
Redemption.

     

    The
Company may, at its option, on any Interest Payment Date, on or after March 30,
2011, redeem the Securities in whole at any time or in part from time to time,
at a Redemption Price equal to one hundred percent (100%) of the principal
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    portion
thereof, as applicable), together, in the case of any such redemption, with
accrued and unpaid interest, including any Additional Interest, through but
excluding the date fixed as the Redemption Date (the “Optional Redemption
Price”).

     

    SECTION
11.2.     Special Event
Redemption.

     

    Prior
to March 30, 2011, upon the occurrence and during the continuation of a Special
Event, the Company may, at its option, redeem the Securities, in whole but not
in part, at a Redemption Price equal to one hundred seven and one half percent
(107.5%) of the principal amount thereof, together, in the case of any such
redemption, with accrued interest, including any Additional Interest, through
but excluding the date fixed as the Redemption Date (the “Special Redemption
Price”).

     

    SECTION
11.3.     Election to Redeem; Notice to
Trustee.

     

    The
election of the Company to redeem any Securities, in whole or in part, shall be
evidenced by or pursuant to a Board Resolution.  In case of any
redemption at the election of the Company, the Company shall, not less than
forty-five (45) days and not more than seventy-five (75) days prior to the
Redemption Date (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee and the Property Trustee under the Trust Agreement in writing
of such date and of the principal amount of the Securities to be redeemed and
provide the additional information required to be included in the notice or
notices contemplated by Section
11.5.  In the case of any redemption of Securities, in whole or
in part, (a) prior to the expiration of any restriction on such redemption
provided in this Indenture or the Securities or (b) pursuant to an election of
the Company which is subject to a condition specified in this Indenture or the
Securities, the Company shall furnish the Trustee with an Officers’ Certificate
and an Opinion of Counsel evidencing compliance with such restriction or
condition.

     

    SECTION
11.4.     Selection of Securities to be
Redeemed.

     

    (a)        If
less than all the Securities are to be redeemed, the particular Securities to be
redeemed shall be selected and redeemed on a pro rata basis not more than sixty
(60) days prior to the Redemption Date by the Trustee from the Outstanding
Securities not previously called for redemption, provided, that the unredeemed
portion of the principal amount of any Security shall be in an authorized
denomination (which shall not be less than the minimum authorized denomination)
for such Security.

     

    (b)        The
Trustee shall promptly notify the Company in writing of the Securities selected
for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.  For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case of
any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security that has been or is to be
redeemed.

     

    (c)        The
provisions of paragraphs (a) and (b) of this Section 11.4 shall
not apply with respect to any redemption affecting only a single Security,
whether such Security is to be redeemed in whole or in part.  In the
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    portion
of the principal amount of the Security shall be in an authorized denomination
(which shall not be less than the minimum authorized denomination) for such
Security.

     

    SECTION
11.5.     Notice of
Redemption.

     

    (a)        Notice
of redemption shall be given not later than the thirtieth (30th)
day, and not earlier than the sixtieth (60th)
day, prior to the Redemption Date to each Holder of Securities to be redeemed,
in whole or in part (unless a shorter notice shall be satisfactory to the
Property Trustee under the related Trust Agreement).

     

    (b)        With
respect to Securities to be redeemed, in whole or in part, each notice of
redemption shall state:

     

    (i)           the
Redemption Date;

     

    (ii)           the
Redemption Price or, if the Redemption Price cannot be calculated prior to the
time the notice is required to be sent, the estimate of the Redemption Price, as
calculated by the Company, together with a statement that it is an estimate and
that the actual Redemption Price will be calculated on the fifth Business Day
prior to the Redemption Date (and if an estimate is provided, a further notice
shall be sent of the actual Redemption Price on the date that such Redemption
Price is calculated);

     

    (iii)          if
less than all Outstanding Securities are to be redeemed, the identification
(and, in the case of partial redemption, the respective principal amounts) of
the amount of and particular Securities to be redeemed;

     

    (iv)          that
on the Redemption Date, the Redemption Price will become due and payable upon
each such Security or portion thereof, and that any interest (including any
Additional Interest) on such Security or such portion, as the case may be, shall
cease to accrue on and after said date; and

     

    (v)           the
place or places where such Securities are to be surrendered for payment of the
Redemption Price.

     

    (c)        Notice
of redemption of Securities to be redeemed, in whole or in part, at the election
of the Company shall be given by the Company or, at the Company’s request, by
the Trustee in the name and at the expense of the Company and shall be
irrevocable.  The notice if mailed in the manner provided above shall
be conclusively presumed to have been duly given, whether or not the Holder
receives such notice.  In any case, a failure to give such notice by
mail or any defect in the notice to the Holder of any Security designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security.

     

    SECTION
11.6.     Deposit of Redemption
Price.

     

    Prior
to 10:00 a.m., New York City time, on the Redemption Date specified in the
notice of redemption given as provided in Section 11.5, the
Company will deposit with the Trustee or with one or more Paying Agents (or if
the Company is acting as its own Paying Agent, the Company will segregate and
hold in trust as provided in Section 10.2) an
amount of money

     

    


    
      
        
           


        

        
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    sufficient
to pay the Redemption Price of, and any accrued interest (including any
Additional Interest) on, all the Securities (or portions thereof) that are to be
redeemed on that date.

     

    SECTION
11.7.     Payment of Securities Called for
Redemption.

     

    (a)        If
any notice of redemption has been given as provided in Section 11.5, the
Securities or portion of Securities with respect to which such notice has been
given shall become due and payable on the date and at the place or places stated
in such notice at the applicable Redemption Price, together with accrued
interest (including any Additional Interest) to the Redemption
Date.  On presentation and surrender of such Securities at a Place of
Payment specified in such notice, the Securities or the specified portions
thereof shall be paid and redeemed by the Company at the applicable Redemption
Price, together with accrued interest (including any Additional Interest) to the
Redemption Date.

     

    (b)        Upon
presentation of any Security redeemed in part only, the Company shall execute
and the Trustee upon receipt of a Company Order shall authenticate and deliver
to the Holder thereof, at the expense of the Company, a new Security or
Securities, of authorized denominations, in aggregate principal amount equal to
the unredeemed portion of the Security so presented and having the same Original
Issue Date, Stated Maturity and terms.

     

    (c)        If
any Security called for redemption shall not be so paid upon surrender thereof
for redemption, the principal of and any premium on such Security shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.

     

     

    ARTICLE
XII

     

    Subordination
and Ranking of Securities

     

    SECTION
12.1.     Securities Subordinate to Senior
Debt.

     

    The
Company covenants and agrees, and each Holder of a Security, by its acceptance
thereof, likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article XII, the
payment of the principal of and any premium and interest (including any
Additional Interest) on each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Debt.

     

    


    
      
        
           


        

        
          62

          
            

          

        

        
           


        

      

    

    


     

    SECTION
12.2.     No Payment When Senior Debt in
Default; Payment Over of Proceeds Upon Dissolution, Etc.

     

    (a)        In
the event and during the continuation of any default by the Company in the
payment of any principal of or any premium or interest on any Senior Debt
(following any grace period, if applicable) when the same becomes due and
payable, whether at maturity or at a date fixed for prepayment or by declaration
of acceleration or otherwise, then, upon written notice of such default to the
Company by the holders of such Senior Debt or any trustee therefor, unless and
until such default shall have been cured or waived or shall have ceased to
exist, no direct or indirect payment (in cash, property, securities, by set-off
or otherwise) shall be made or agreed to be made on account of the principal of
or any premium or interest (including any Additional Interest) on any of the
Securities, or in respect of any redemption, repayment, retirement, purchase or
other acquisition of any of the Securities.

     

    (b)        In
the event of a bankruptcy, insolvency or other proceeding described in clause
(d) or (e) of the definition of Event of Default (each such event, if any,
herein sometimes referred to as a “Proceeding”), all Senior Debt
(including any interest thereon accruing after the commencement of any such
proceedings) shall first be paid in full before any payment or distribution,
whether in cash, securities or other property, shall be made to any Holder of
any of the Securities on account thereof.  Any payment or
distribution, whether in cash, securities or other property (other than
securities of the Company or any other entity provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior Debt at
the time outstanding and to any securities issued in respect thereof under any
such plan of reorganization or readjustment), which would otherwise (but for
these subordination provisions) be payable or deliverable in respect of the
Securities shall be paid or delivered directly to the holders of Senior Debt in
accordance with the priorities then existing among such holders until all Senior
Debt (including any interest thereon accruing after the commencement of any
Proceeding) shall have been paid in full.

     

    (c)        In
the event of any Proceeding, after payment in full of all sums owing with
respect to Senior Debt, the Holders of the Securities, together with the holders
of any obligations of the Company ranking on a parity with the Securities, shall
be entitled to be paid from the remaining assets of the Company the amounts at
the time due and owing on account of unpaid principal of and any premium and
interest (including any Additional Interest) on the Securities and such other
obligations before any payment or other distribution, whether in cash, property
or otherwise, shall be made on account of any Equity Interests or any
obligations of the Company ranking junior to the Securities and such other
obligations.  If, notwithstanding the foregoing, any payment or
distribution of any character on any security, whether in cash, securities or
other property (other than securities of the Company or any other entity
provided for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in these subordination provisions
with respect to the indebtedness evidenced by the Securities, to the payment of
all Senior Debt at the time outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment) shall be received
by the Trustee or any Holder in contravention of any of the terms hereof and
before all Senior Debt shall have been paid in full, such payment or
distribution or security shall be received in trust for the benefit of, and
shall be paid over or delivered and transferred to, the holders of the
Senior

     

    


    
      
        
           


        

        
          63

          
            

          

        

        
           


        

      

    

    


     

    Debt
at the time outstanding in accordance with the priorities then existing among
such holders for application to the payment of all Senior Debt remaining unpaid,
to the extent necessary to pay all such Senior Debt (including any interest
thereon accruing after the commencement of any Proceeding) in
full.  In the event of the failure of the Trustee or any Holder to
endorse or assign any such payment, distribution or security, each holder of
Senior Debt is hereby irrevocably authorized to endorse or assign the
same.

     

    (d)        The
Trustee and the Holders, at the expense of the Company, shall take such
reasonable action (including the delivery of this Indenture to an agent for any
holders of Senior Debt or consent to the filing of a financing statement with
respect hereto) as may, in the opinion of counsel designated by the holders of a
majority in principal amount of the Senior Debt at the time outstanding, be
necessary or appropriate to assure the effectiveness of the subordination
effected by these provisions.

     

    (e)        The
provisions of this Section 12.2 shall
not impair any rights, interests, remedies or powers of any secured creditor of
the Company in respect of any security interest the creation of which is not
prohibited by the provisions of this Indenture.

     

    (f)        
The securing of any obligations of the Company, otherwise ranking on a parity
with the Securities or ranking junior to the Securities shall not be deemed to
prevent such obligations from constituting, respectively, obligations ranking on
a parity with the Securities or ranking junior to the Securities.

     

    SECTION
12.3.     Payment Permitted If No
Default.

     

    Nothing
contained in this Article XII or
elsewhere in this Indenture or in any of the Securities shall prevent (a) the
Company, at any time, except during the pendency of the conditions described in
paragraph (a) of Section 12.2 or of
any Proceeding referred to in Section 12.2, from
making payments at any time of principal of and any premium or interest
(including any Additional Interest) on the Securities or (b) the application by
the Trustee of any moneys deposited with it hereunder to the payment of or on
account of the principal of and any premium or interest (including any
Additional Interest) on the Securities or the retention of such payment by the
Holders, if, at the time of such application by the Trustee, it did not have
knowledge (in accordance with Section 12.8) that
such payment would have been prohibited by the provisions of this Article XII, except
as provided in Section
12.8.

     

    SECTION
12.4.     Subrogation to Rights of Holders of
Senior Debt.

     

    Subject
to the payment in full of all amounts due or to become due on all Senior Debt,
or the provision for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Debt, the Holders of the Securities
shall be subrogated to the extent of the payments or distributions made to the
holders of such Senior Debt pursuant to the provisions of this Article XII (equally
and ratably with the holders of all indebtedness of the Company that by its
express terms is subordinated to Senior Debt of the Company to substantially the
same extent as the Securities are subordinated to the Senior Debt and is
entitled to like rights of subrogation by reason of any payments or
distributions made to holders of such Senior Debt) to the rights of the holders
of such Senior Debt to receive payments and distributions of cash,

     

    


    
      
        
           


        

        
          64

          
            

          

        

        
           


        

      

    

    


     

    property
and securities applicable to the Senior Debt until the principal of and any
premium and interest (including any Additional Interest) on the Securities shall
be paid in full.  For purposes of such subrogation, no payments or
distributions to the holders of the Senior Debt of any cash, property or
securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article XII, and no
payments made pursuant to the provisions of this Article XII to the
holders of Senior Debt by Holders of the Securities or the Trustee, shall, as
among the Company, its creditors other than holders of Senior Debt and the
Holders of the Securities, be deemed to be a payment or distribution by the
Company to or on account of the Senior Debt.

     

    SECTION
12.5.     Provisions Solely to Define Relative
Rights.

     

    The
provisions of this Article XII are and
are intended solely for the purpose of defining the relative rights among the
Holders of the Securities and the holders of Senior Debt.  Nothing
contained in this Article XII or
elsewhere in this Indenture or in the Securities is intended to or shall (a)
impair, as between the Company and the Holders of the Securities, the
obligations of the Company, which are absolute and unconditional, to pay to the
Holders of the Securities the principal of and any premium and interest
(including any Additional Interest) on the Securities as and when the same shall
become due and payable in accordance with their terms, (b) affect the relative
rights against the Company of the Holders of the Securities and creditors of the
Company other than their rights in relation to the holders of Senior Debt or (c)
prevent the Trustee or the Holder of any Security (or to the extent expressly
provided herein, the holder of any Preferred Security) from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, including filing and voting claims in any Proceeding, subject to the
rights, if any, under this Article XII of the
holders of Senior Debt to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.

     

    SECTION
12.6.     Trustee to Effectuate
Subordination.

     

    Each
Holder of a Security by his or her acceptance thereof authorizes and directs the
Trustee on his or her behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination provided in this
Article XII and
appoints the Trustee his or her attorney-in-fact for any and all such
purposes.

     

    SECTION
12.7.     No Waiver of Subordination
Provisions.

     

    (a)        No
right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may have or be
otherwise charged with.

     

    (b)        Without
in any way limiting the generality of paragraph (a) of this Section 12.7, the
holders of Senior Debt may, at any time and from to time, without the consent of
or notice to the Trustee or the Holders of the Securities, without incurring
responsibility to such Holders of the Securities and without impairing or
releasing the subordination provided in this Article XII
or

     

    


    
      
        
           


        

        
          65

          
            

          

        

        
           


        

      

    

    


     

    the
obligations hereunder of such Holders of the Securities to the holders of Senior
Debt, do any one or more of the following:  (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Senior Debt, or otherwise amend or supplement in any manner Senior Debt or any
instrument evidencing the same or any agreement under which Senior Debt is
outstanding, (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt, (iii) release any Person
liable in any manner for the payment of Senior Debt and (iv) exercise or refrain
from exercising any rights against the Company and any other
Person.

     

    SECTION
12.8.     Notice to
Trustee.

     

    (a)        The
Company shall give prompt written notice to a Responsible Officer of the Trustee
of any fact known to the Company that would prohibit the making of any payment
to or by the Trustee in respect of the Securities.  Notwithstanding
the provisions of this Article XII or any
other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of any
payment to or by the Trustee in respect of the Securities, unless and until a
Responsible Officer of the Trustee shall have received written notice thereof
from the Company or a holder of Senior Debt or from any trustee, agent or
representative therefor; provided, that if the Trustee
shall not have received the notice provided for in this Section 12.8 at least
two Business Days prior to the date upon which by the terms hereof any monies
may become payable for any purpose (including, the payment of the principal of
and any premium on or interest (including any Additional Interest) on any
Security), then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such monies and to apply
the same to the purpose for which they were received and shall not be affected
by any notice to the contrary that may be received by it within two Business
Days prior to such date.

     

    (b)        The
Trustee shall be entitled to rely on the delivery to it of a written notice by a
Person representing himself or herself to be a holder of Senior Debt (or a
trustee, agent, representative or attorney-in-fact therefor) to establish that
such notice has been given by a holder of Senior Debt (or a trustee, agent,
representative or attorney-in-fact therefor).  In the event that the
Trustee determines in good faith that further evidence is required with respect
to the right of any Person as a holder of Senior Debt to participate in any
payment or distribution pursuant to this Article XII, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt held by such Person,
the extent to which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such Person under
this Article
XII, and if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.

     

    SECTION
12.9.     Reliance on Judicial Order or
Certificate of Liquidating Agent.

     

    Upon
any payment or distribution of assets of the Company referred to in this Article XII, the
Trustee and the Holders of the Securities shall be entitled to conclusively rely
upon any order or decree entered by any court of competent jurisdiction in which
such Proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the benefit of creditors,
agent or other Person making such payment or distribution, delivered to
the

     

    


    
      
        
           


        

        
          66

          
            

          

        

        
           


        

      

    

    


     

    Trustee
or to the Holders of Securities, for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of the
Senior Debt and other indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article
XII.

     

    SECTION
12.10.   Trustee Not Fiduciary for Holders of
Senior Debt.

     

    The
Trustee, in its capacity as trustee under this Indenture, shall not be deemed to
owe any fiduciary duty to the holders of Senior Debt and shall not be liable to
any such holders if it shall in good faith mistakenly pay over or distribute to
Holders of Securities or to the Company or to any other Person cash, property or
securities to which any holders of Senior Debt shall be entitled by virtue of
this Article
XII or otherwise.

     

    SECTION
12.11.   Rights
of Trustee as Holder of Senior Debt; Preservation of Trustee’s
Rights.

     

    The
Trustee in its individual capacity shall be entitled to all the rights set forth
in this Article
XII with respect to any Senior Debt that may at any time be held by it,
to the same extent as any other holder of Senior Debt, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such
holder.  With respect to the holders of Senior Debt, the Trustee
undertakes to perform only such of its obligations as are specifically set forth
in this Article
XII, and no implied covenants or obligations with respect to the holders
of such Senior Debt shall be read into this Indenture against the
Trustee.  Nothing in this Article XII shall
apply to claims of, or payments to, the Trustee under or pursuant to Section
6.6.

     

    SECTION
12.12.   Article Applicable to Paying Agents

     

    If
at any time any Paying Agent other than the Trustee shall have been appointed by
the Company and be then acting hereunder, the term “Trustee” as used in this Article XII shall in
such case (unless the context otherwise requires) be construed as extending to
and including such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article XII in
addition to or in place of the Trustee; provided, that Sections 12.8 and
12.11 shall not
apply to the Company or any Affiliate of the Company if the Company or such
Affiliate acts as Paying Agent.

     

    *
* * *

     

    This
instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.

     

    


    
      
        
           


        

        
          67

          
            

          

        

        
           


        

      

    

    


     

    IN
WITNESS WHEREOF, the parties hereto have caused this Amended and Restated
Indenture to be duly executed as of the day and year first above
written.

     

    


    
      	 
      	
              Anthracite
      Capital, Inc.

            
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
              By:

            	
              /s/
      Richard M. Shea

            
	 
      	 
      	
              Name:

            	
              Richard
      M. Shea

            
	 
      	 
      	
              Title:

            	
              President
      and Chief Operating Officer

            
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
              Wilmington
      Trust Company, as Trustee

            
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
              By:

            	
              /s/  W.
      Thomas Morris, II

            
	 
      	 
      	
              Name:

            	
              W.
      Thomas Morris, II

            
	 
      	 
      	
              Title:

            	
              Vice
      President

            


    

    
 

    
      
        
           


        

        
          
          

          
            

          

        

        
           


        

      

    

    


     

    Schedule
A

     

    DETERMINATION
OF LIBOR

     

    With
respect to the Securities, the London interbank offered rate (“LIBOR”) shall be determined
by the Calculation Agent in accordance with the following provisions (in each
case rounded to the nearest 000001%):

     

    (1)        On
the second LIBOR Business Day (as defined below) prior to a Distribution Date
after the expiration of the Fixed Rate Period (each such day, a “LIBOR Determination Date”),
LIBOR for any given security shall for the following interest payment period
equal the rate, as obtained by the Calculation Agent from Bloomberg Financial
Markets Commodities News, for three-month Eurodollar deposits that appears on
Dow Jones Telerate Page 3750 (as defined in the International Swaps and
Derivatives Association, Inc. 2000 Interest Rate and Currency Exchange
Definitions), or such other page as may replace such Page 3750, as of 11:00 a.m.
(London time) on such LIBOR Determination Date.

     

    (2)        If,
on any LIBOR Determination Date, such rate does not appear on Dow Jones Telerate
Page 3750 or such other page as may replace such Page 3750, the Calculation
Agent shall determine the arithmetic mean of the offered quotations of the
Reference Banks (as defined below) to leading banks in the London interbank
market for three-month Eurodollar deposits in an amount determined by the
Calculation Agent by reference to requests for quotations as of approximately
11:00 a.m. (London time) on the LIBOR Determination Date made by the Calculation
Agent to the Reference Banks. If, on any LIBOR Determination Date, at least two
of the Reference Banks provide such quotations, LIBOR shall equal such
arithmetic mean of such quotations.  If, on any LIBOR Determination
Date, only one or none of the Reference Banks provide such quotations, LIBOR
shall be deemed to be the arithmetic mean of the offered quotations that leading
banks in the City of New York selected by the Calculation Agent are quoting on
the relevant LIBOR Determination Date for three-month Eurodollar deposits in an
amount determined by the Calculation Agent by reference to the principal London
offices of leading banks in the London interbank market; provided that, if the
Calculation Agent is required but is unable to determine a rate in accordance
with at least one of the procedures provided above, LIBOR shall be LIBOR as
determined on the previous LIBOR Determination Date.

     

    (3)        As
used herein: “Reference
Banks” means four major banks in the London interbank market selected by
the Calculation Agent; and “LIBOR Business Day” means a
day on which commercial banks are open for business (including dealings in
foreign exchange and foreign currency deposits) in London.

     

    


    
      
        
           


        

        
          Schedule
A-1

          
            

          

        

        
           


        

      

    

    


     

    Schedule
B

     

    Existing
Senior Secured Debt and Senior Notes

     

    
      	
              1.

            	
              Debt
      under Credit Agreement, dated as of March 17, 2006, among AHR Capital BofA
      Limited, as borrower, the Company, as borrower agent, and Bank of America,
      N.A., as lender, as amended on August 7, 2008, October 20, 2008, November
      7, 2008, January 28, 2009 and May 15, 2009, and related
      Guaranty

            
	 	 
	
              2.

            	
              Debt
      under Master Repurchase Agreement and Annex I thereto, dated as of July
      20, 2007, among Anthracite Capital BOFA Funding LLC, as seller, Bank of
      America, N.A. and Banc of America Mortgage Capital Corporation, as buyers,
      and Bank of America, N.A., as buyer agent, as amended on October 31, 2007,
      August 7, 2008, October 6, 2008, October 20, 2008, November 7, 2008,
      January 28, 2009 and May 15, 2009, and related Guaranty

            
	 	 
	
              3.

            	
              Debt
      under Master Repurchase Agreement and Annex I thereto, dated as of
      December 23, 2004, between Anthracite Funding, LLC, as seller, and
      Deutsche Bank AG, Cayman Islands Branch, as buyer, as amended on February
      8, 2007, July 8, 2008, July 17, 2008 and May 15, 2009, and related
      Guaranty

            
	 	 
	
              4.

            	
              Debt
      under Fourth Amended and Restated Multicurrency Revolving Facility
      Agreement, dated as of May 15, 2009, among AHR Capital MS Limited, as
      borrower, Morgan Stanley Mortgage Servicing Limited, as security trustee,
      Morgan Stanley Bank, as the initial lender, and Morgan Stanley Principal
      Funding, Inc., as the first new lender and agent, through an Amendment and
      Restatement Deed, and related Guaranty and Indemnity

            
	 	 
	
              5.

            	
              Debt
      under Credit Agreement, dated as of March 7, 2008, between the Company and
      BlackRock Holdco 2, Inc., as amended on December 22,
  2008

            
	 	 
	
              6.

            	
              $50
      million aggregate principal amount of 7.22% Senior Notes due
      2016

            
	 	 
	
              7.

            	
              $25
      million aggregate principal amount of 7.20% Senior Notes due
      2016

            
	 	 
	
              8.

            	
              $50
      million aggregate principal amount of fixed (7.772%)-to-floating rate
      Senior Notes due 2017

            
	 	 
	
              9.

            	
              $37.5
      million aggregate principal amount of fixed (8.1275%)-to-floating rate
      Senior Notes due 2017

            


    

    
 

    
      
        
           


        

        
          Schedule
B-1

          
            

          

        

        
           


        

      

    

    


     

    
      	
              10.

            	
              $39.019
      million aggregate principal amount of 11.75% Convertible Senior Notes due
      2027

            


    

     

    


    
      
        
           


        

        
          Schedule
B-2

          
            

          

        

        
           


        

      

    

    


     

    Exhibit
A

     

    Form
of Officer’s Financial Certificate

     

    The
undersigned, the [Chief Financial Officer/Treasurer/Assistant
Treasurer/Secretary/ Assistant Secretary/Chairman/Vice Chairman/Chief Executive
Officer/President/Vice President] hereby certifies, pursuant to Section 7.3(b)
of the Amended and Restated Junior Subordinated Indenture, dated as of October
23 __, 2009, that:

     

    [FOR
FISCAL YEAR END: Attached hereto are the audited consolidated financial
statements (including the balance sheet, income statement and statement of cash
flows, and notes thereto, together with the report of the independent
accountants thereon) of the Company and its consolidated subsidiaries for the
three years ended _________, 20_.]

     

    [FOR
FISCAL QUARTER END: Attached hereto are the unaudited consolidated and
consolidating financial statements (including the balance sheet and income
statement) of the Company and its consolidated subsidiaries for the fiscal
quarter and [six/nine] month period ended _________, 20_.]

     

    The
financial statements fairly present in all material respects, in accordance with
U. S. generally accepted accounting principles (“GAAP ), the financial position
of the Company and its consolidated subsidiaries, and the results of operations
and changes in financial condition as of the date, and for the [quarter]
[annual] period ended ________, 20_, and such financial statements have been
prepared in accordance with GAAP consistently applied throughout the period
involved (except as otherwise noted therein).

     

    


    
      
        
           


        

        
          Exhibit
A-1

          
            

          

        

        
           


        

      

    

    


    IN
WITNESS WHEREOF, the undersigned has executed this Officer’s Financial
Certificate as of this _____ day of _____________, 20__.

     

    
      	 
      	
              Anthracite
      Capital, Inc.

            
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
              By:

            	 
      
	 
      	 
      	
              Name:

            	 
      
	 
      	 
      	
              Title:

            	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
              Anthracite
      Capital, Inc

              40
      East 52nd
      Street

              New
      York, New York 10022

              (212)
      810-3333

            


    

    
 

    
      
        
           


        

        
          Exhibit
A-2

          
            

          

        

        
           


        

      

    

    


     

    Exhibit B

     

    FORM
OF OFFICERS’ CERTIFICATE UNDER SECTION 10.3

     

    Pursuant to Section 10.3 of the Amended
and Restated Indenture, dated as of October 23, 2009 (as amended or supplemented
from time to time, the “Indenture”), between
Anthracite Capital, Inc., as issuer (the “Company”), and Wilmington
Trust Company, as trustee, each of the undersigned hereby certifies that, to the
knowledge of the undersigned, the Company is not in default in the performance
or observance of any of the terms, provisions or conditions contained in the
Indenture (without regard to any period of grace or requirement of notice
provided under the Indenture), for the fiscal year ending
on            ,
20__[, except as follows: specify each such default and the nature and status
thereof].

     

    Capitalized
terms used herein, and not otherwise defined herein, have the respective
meanings assigned thereto in the Indenture.

     

    IN
WITNESS WHEREOF, the undersigned have executed this Officers’ Certificate as of
this ______ day of _________, 20__.

     

    
      	 
      	
              By:

            	 
      
	 
      	 
      	
              Name:

            	 
      
	 
      	 
      	
              Title:

            	
              [Must
      be the Chairman of the Board, a Vice Chairman of the Board, the Chief
      Executive Officer, the President, or a Vice President] of Anthracite
      Capital, Inc.

            
	 
      	 
      	 
      
	 
      	
              By:

            	 
      
	 
      	 
      	
              Name:

            	 
      
	 
      	 
      	
              Title:

            	
              [Must
      be the Chief Financial Officer, the Treasurer, an Assistant Treasurer, the
      Secretary or an Assistant Secretary] of Anthracite Capital,
      Inc.

            
	 
      	 
      	 
      


    

    


    Exhibit B-1