Exhibit 10.17


Execution
Version












AMENDED
& RESTATED




JUNIOR
SUBORDINATED INDENTURE









between














BIMINI
MORTGAGE MANAGEMENT, INC.



















and



















JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION,




as
Trustee









________________









Dated as
of September 26, 2005







________________





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 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
            9




Section
      1.3.
            Forms
      of Documents Delivered to Trustee
            10




Section
      1.4.
            Acts
      of Holders
            10




Section
      1.5.
            Notices,
      Etc. to Trustee and Company
            12




Section
      1.6.
            Notice
      to Holders; Waiver
            12




Section
      1.7.
            Effect
      of Headings and Table of Contents
            13




Section
      1.8.
            Successors
      and Assigns
            13




Section
      1.9.
            Separability
      Clause
            13




Section
      1.9.
            Benefits
      of Indenture
            13




Section
      1.11.
            Governing
      Law
            13




Section
      1.12.
            Submission
      to Jurisdiction
            14




Section
      1.13.
            Non-Business
      Days
            14




ARTICLE
      II
            SECURITY
      FORMS
            14




Section
      2.1.
            Form
      of Security
            14




Section
      2.2.
            Restricted
      Legend
            18




Section
      2.3.
            Form
      of Trustee’s Certificate of Authentication
            20




Section
      2.4.
            Temporary
      Securities
            20




Section
      2.5.
            Definitive
      Securities
            21




ARTICLE III
            THE
      SECURITIES
            21




Section
      3.1.
            Payment
      of Principal and Interest
            21




Section
      3.2.
            Denominations
            23




Section
      3.3.
            Execution,
      Authentication, Delivery and Dating
            23




Section
      3.4.
            Global
      Securities
            24




Section
      3.5.
            Registration,
      Transfer and Exchange Generally
            26




Section
      3.6.
            Mutilated,
      Destroyed, Lost and Stolen Securities
            27




Section
      3.7.
            Persons
      Deemed Owners
            28




Section
      3.8.
            Cancellation
            28




Section
      3.9.
            Reserved
            29




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Section
      3.10.
              
              Section
      3.11.
            Reserved
              
              Agreed
      Tax Treatment
            29
              
              29




Section
      3.12.
            CUSIP
      Numbers
            29




ARTICLE
      IV
            SATISFACTION
      AND DISCHARGE
            29




Section
      4.1.
            Satisfaction
      and Discharge of Indenture
            29




Section
      4.2.
            Application
      of Trust Money
            30




ARTICLE V
            REMEDIES
            31




Section
      5.1.
            Events
      of Default
            31




Section
      5.2.
            Acceleration
      of Maturity; Rescission and Annulment
            32




Section
      5.3.
            Collection
      of Indebtedness and Suits for Enforcement by
Trustee.
            33




Section
      5.4.
            Trustee
      May File Proofs of Claim
            33




Section
      5.5.
            Trustee
      May Enforce Claim Without Possession of Securities
            34




Section
      5.6.
            Application
      of Money Collected
            34




Section
      5.7.
            Limitation
      on Suits
            34




Section
      5.8.
            Unconditional
      Right of Holders to Receive Principal, Premium, if any, and Interest;
      Direct Action by Holders of Preferred Securities
            35




Section
      5.9.
            Restoration
      of Rights and Remedies
            35




Section
      5.10.
            Rights
      and Remedies Cumulative
            35




Section
      5.11.
            Delay
      or Omission Not Waiver
            36




Section
      5.12.
            Control
      by Holders
            36




Section
      5.13.
            Waiver
      of Past Defaults
            36




Section
      5.14.
            Undertaking
      for Costs
            37




Section
      5.15.
            Waiver
      of Usury, Stay or Extension Laws
            37




ARTICLE VI
            THE
      TRUSTEE
            37




Section
      6.1.
            Corporate
      Trustee Required
            37




Section
      6.2.
            Certain
      Duties and Responsibilities
            38




Section
      6.3.
            Notice
      of Defaults
            39




Section
      6.4.
            Certain
      Rights of Trustee
            40




Section
      6.5.
            May
      Hold Securities
            42




Section
      6.6.
            Compensation;
      Reimbursement; Indemnity
            42




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Section
      6.7.
              
              Section
      6.8.
            Resignation
      and Removal; Appointment of Successor
              
              Acceptance
      of Appointment by Successor
            43
              
              43




Section
      6.9.
            Merger,
      Conversion, Consolidation or Succession to Business
            44




Section
      6.10.
            Not
      Responsible for Recitals or Issuance of Securities
            44




Section
      6.11.
            Appointment
      of Authenticating Agent
            44




ARTICLE VII
            HOLDER’S
      LISTS AND REPORTS BY COMPANY
            46




Section
      7.1.
            Company
      to Furnish Trustee Names and Addresses of Holders
            46




Section
      7.2.
            Preservation
      of Information, Communications to Holders
            46




Section
      7.3.
            Reports
      by Company
            46




ARTICLE VIII
            CONSOLIDATION,
      MERGER, CONVEYANCE, TRANSFER OR LEASE
            47




Section
      8.1.
            Company
      May Consolidate, Etc., Only on Certain Terms
            47




Section
      8.2.
            Successor
      Company Substituted
            48




ARTICLE IX
            SUPPLEMENTAL
      INDENTURES
            49




Section
      9.1.
            Supplemental
      Indentures without Consent of Holders
            49




Section
      9.2.
            Supplemental
      Indentures with Consent of Holders
            49




Section
      9.3.
            Execution
      of Supplemental Indentures
            50




Section
      9.4.
            Effect
      of Supplemental Indentures
            50




Section
      9.5.
            Reference
      in Securities to Supplemental Indentures
            51




ARTICLE X
            COVENANTS
            51




Section
      10.1.
            Payment
      of Principal, Premium, if any, and Interest
            51




Section
      10.2.
            Money
      for Security Payments to be Held in Trust
            51




Section
      10.3.
            Statement
      as to Compliance
            52




Section
      10.4.
            Calculation
      Agent
            52




Section
      10.5.
            Additional
      Tax Sums
            53




Section
      10.6.
            Additional
      Covenants
            53




Section
      10.7.
            Waiver
      of Covenants
            54




Section
      10.8.
            Treatment of Securities
            55




ARTICLE XI
            REDEMPTION
      OF SECURITIES
            
            55




Section
      11.1.
            Optional
      Redemption
            55




Section
      11.2.
            Special
      Event Redemption
            55




Section
      11.3.
            Election
      to Redeem; Notice to Trustee
            55




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Section
      11.4.
              
              Section
      11.5.
            Notice
      of Redemption
              
              Selection
      of Securities to be
      Redeemed
            56
              
              56




Section
      11.6.
            Deposit
      of Redemption Price
            57




Section
      11.7.
            Payment
      of Securities Called for Redemption
            57




ARTICLE XII
            SUBORDINATION
      OF SECURITIES
            
            58




Section
      12.1.
            Securities
      Subordinate to Senior Debt
            58




Section
      12.2.
            No
      Payment When Senior Debt in Default; Payment Over of Proceeds Upon
      Dissolution, Etc.
            58




Section
      12.3.
            Payment
      Permitted If No Default
            59




Section
      12.4.
            Subrogation
      to Rights of Holders of Senior Debt
            60




Section
      12.5.
            Provisions
      Solely to Define Relative Rights
            60




Section
      12.6.
            Trustee
      to Effectuate Subordination
            60




Section
      12.7.
            No
      Waiver of Subordination Provisions
            61




Section
      12.8.
            Notice
      to Trustee
            61




Section
      12.9.
            Reliance
      on Judicial Order or Certificate of Liquidating Agent
            62




Section
      12.10.
            Trustee
      Not Fiduciary for Holders of Senior Debt
            62




Section
      12.11.
            Rights
      of Trustee as Holder of Senior Debt; Preservation of Trustee’s Rights
            62




Section
      12.12.
            Article
      Applicable to Paying Agents
            62




SCHEDULES




Schedule
A  –  Determination of LIBOR




Exhibit
A      –  Form of Officer’s Financial
Certificate




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This
Amended & Restated Junior Subordinated Indenture (as amended and restated,
the “Indenture”), dated
as of September 26, 2005, between Bimini Mortgage Management, Inc., a Maryland
corporation (the “Company”), and JPMorgan Chase
Bank, National Association, a national banking association, as Trustee (in
such capacity, the “Trustee”).




Recitals
of the Company




Whereas,
the Company and the Trustee previously entered into an Indenture, dated as of
May 17, 2005, in order to provide for the issuance of its unsecured junior
subordinated interest notes (the “Securities”) issued to
evidence loans made to the Company of the proceeds from the issuance by
BiminiCapital
Trust I, 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;




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




Whereas,
the Company has duly authorized the execution and delivery of this Amended and
Restated Indenture to provide for two separate series of the Securities (“Series A Securities” and
“Series B Securities”),
the only difference between each such Series being the difference in certain
dates related to the Trust Securities, including, but not limited to, the
Interest Payment Dates, the Expiration Dates,the Fixed Rate Periods and
the Stated Maturity dates.




Now,
therefore, this Indenture Witnesseth:




For and
in consideration of the premises herein set forth, the receipt and sufficiency
of which is hereby acknowledged, 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 not otherwise defined herein have the meanings assigned to them
in accordance with GAAP;




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(d)  unless
the context otherwise requires, any reference to an “Article” or a “Section”
refers to an Article or a Section, 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.




“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.




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“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.




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




“Common Stock”means the common stock,
par value $0.01 per share, of the Company.




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




“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 600 Travis, 50th Floor,
Houston, Texas 77019 Attn: Worldwide Securities Services— BiminiCapital Trust
I.




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




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




“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.




“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.




“Fixed Rate Period” shall have
the meaning in the form of Security set forth in Section
2.1.




“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 (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




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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.




“Interest Payment
Date(s)”means the Series A
Interest Payment Dates and the Series B Interest Payment Dates, as
applicable.




“Interest Payment
Period” means  with respect to any Interest Payment
Date, the period commencing on the immediately preceding Interest Payment
Date  (or, in the case of the Interest Payment Period relating to
the first Interest Payment Date, commencing on the Closing Date) and
ending on the day immediately preceding such Interest Payment Date; provided, that, with respect
to Series B Notes, for the Interest Payment Date in October
2005, the Interest Payment Period shall commence June 30, 2005.




“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 Trust 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 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,”when used with respect
to any Security, means 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.




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“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”
means the Series A Optional Redemption Price and/or the Series B Optional
Redemption Price, as applicable, as set forth in Section
11.1.




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




“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
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




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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, or 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.




“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.




“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 Worldwide Securities
Services department of the Trustee having direct responsibility for the
administration of this Indenture.




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




“Securities”or “Security”means any debt
securities or debt security, including both Series A Securities and Series B
Securities, as the case may be, authenticated and delivered under this
Indenture; provided, however, that except as expressly provided for in this
Indenture, the Series A Securities and Series B Securities shall be pari passu in all
respects.




“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.




“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 guaranteed by the Company pursuant to an
instrument that ranks pari
passu with or junior in right of payment to this Indenture.




“Series A Interest Payment
Date(s)”means March 30, June
30, September 30 and December 30 of each year during the term of this
Indenture.




“Series B Interest Payment
Date(s)”means January 30, April
30, July 30 and October 30 of each year during the term of this
Indenture.




“Series A Optional Redemption Price”
has the meaning set forth in Section 11.1(a)
hereto.




“Series B Optional Redemption Price”
has the meaning set forth in Section 11.1(b)
hereto.




“Series A Security” and “Series A Securities” has the
meaning set forth in the second recital hereto, as set forth in more detail in
Section 2.1
hereto, in the aggregate principal amount of $1,001,000.




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“Series B Security” and “Series B Securities” has the
meaning set forth in the second recital hereto, as set forth in more detail in
Section 2.1
hereto, in the aggregate principal amount of $50,549,000.




“Series A Special Redemption Price” has
the meaning set forth in Section 11.2(a)
hereto.




“Series B Special Redemption Price” has
the meaning set forth in Section 11.2(b)
hereto.




“Series A Stated Maturity”
means March 30, 2035.




“Series B Stated Maturity” means April
30, 2035.




“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.




“Special Redemption Price”
means the Series A Special Redemption Price or the Series B Special Redemption
Price, as applicable, as set forth in Section
11.2.




“Stated Maturity” means the
Series A Stated Maturity and the Series B Stated Maturity, as
applicable.




“Subsidiary” means a Person
more than fifty percent (50%) of the outstanding voting stock or other voting
interests of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other
Subsidiaries.  For purposes of this definition, “voting stock” means stock
that ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.




“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.




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




“Trust Agreement” means the
Second Amended and Restated Trust Agreement executed and delivered by the
Company, the Property Trustee, Chase Bank USA, National Association,
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 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.




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.




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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.




(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




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      04310929


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 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 or
the Company, as the case may be, 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




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      04310929


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 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 3305 Flamingo Dr., Vero
Beach, FL 32963, Attention:  Jeffrey J. Zimmer, with a copy
to:  Clifford Chance US LLP, 31 West 52nd Street,
New York, New York 10019, Attention:  Robert E. Kind, Jr., 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




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      04310929


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 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, 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).




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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 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:




BIMINI MORTGAGE MANAGEMENT,
INC.




Floating
Rate Junior Subordinated Note due 2035




No.
_____________                                                                                                           $
___________




Bimini
Mortgage Management, 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 JPMorgan Chase Bank, National Association,
not in its individual capacity, but solely as trustee for Bimini Capital Trust
I, or registered assigns, the principal sum of [Amount] Thousand Dollars
($[__________]) [if the Security
is a Global Security, then insert—or such other principal amount
represented hereby as may be set forth in the records of the Securities
Registrar hereinafter referred to in accordance with the Indenture] on
[in the case of Series A Securities, March 30, 2035/in the case of Series B
Securities, April 30, 2035].  The Company




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further
promises to pay interest on said principal sum from May 17, 2005, or from the
most recent date on and to which interest has been paid or duly provided for,
quarterly in arrears on [for Series A Securities, March 30, June 30, September
30 and December 30/for Series B Securities, January 30, April 30, July 30 and
October 30] of each year, 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 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 7.61% per
annum through the Interest Payment Date on [in the case of Series A Securities,
March 30, 2010/in the case of Series B Securities, April 30, 2010] (“Fixed Rate Period”)
and thereafter at a variable rate equal to LIBOR plus 3.30% per annum, together
with 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 7.61%
through the Interest Payment Date on [in the case of Series A Securities, March
30, 2010/in the case of Series B Securities, April 30, 2010] (‘Fixed Rate
Period”) and thereafter at a variable rate equal to LIBOR plus 3.30% per annum
(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 Period, 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 Period, 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.




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




5093320
      04310929


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
September 26, 2005 (the “Indenture”), between the
Company and JPMorgan Chase Bank, National Association, 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 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 May 17, 2005 (as modified, amended or
supplemented from time to time, the “Trust Agreement”), relating
to the BiminiCapital Trust I (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 [For Series A Securities, March 30, 2010/for Series B
Securities, April 30, 2010] 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,




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      04310929


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.




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 “Qualified
Purchasers” (as such term is defined in the Investment Company Act of 1940, as
amended,) 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.




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      04310929


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 may 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.




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__.




Bimini
Mortgage Management, 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




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      04310929


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 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 (A) SUCH SECURITIES MAY BE OFFERED, RESOLD OR OTHERWISE
TRANSFERRED ONLY (I) TO THE COMPANY OR (II) 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 (B) THE HOLDER WILL
NOTIFY ANY PURCHASER OF ANY SECURITIES FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE.






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




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      04310929




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,
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:




JPMorgan
Chase Bank, National Association, not in its individual capacity, but solely as
Trustee




By:  __________________________________


Authorized
Signatory







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.




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      04310929


(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 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.




(a)           Payment of Principal and
Interest.




(i)  Series A Securities: The
unpaid principal amount of the Securities shall bear interest at a fixed rate
equal to7.61% per
annum through the Interest Payment Date on March 30, 2010 and thereafter at a
variable rate of LIBOR plus 3.30% per annum until paid or duly provided for,
such interest to accrue from the Original Issue Date or from the most recent
date on and 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 rate equal to a
fixed rate equal to7.61% per annum through
the Interest Payment Date on March 30, 2010 and thereafter at a variablerate of LIBOR plus
3.30%per annum,
compounded quarterly from the dates such amounts are due until they are paid or
funds for the payment thereof are made available for payment.




(ii)Series B
Securities:   The unpaid principal amount of the
Securities shall bear interest at a fixed rate equal to 7.61% per annum through
the Interest Payment Date on April 30, 2010 and thereafter at a variable rate of
LIBOR plus 3.30% per annum until paid or duly provided for, such interest to
accrue from the Original Issue Date or from the most recent date on and 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 rate equal to a fixed rate equal to
7.61%




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      04310929


per annum
through the Interest Payment Date on April 30, 2010 and thereafter at a
variablerate of
LIBOR plus 3.30%per annum compounded
quarterly from the dates such amounts are due until they are paid or funds for
the payment thereof are made 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.




(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.  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,




5093320
      04310929


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 Period, 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 Period, 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)           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.




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
Fifty One Million Five Hundred Fifty Thousand Dollars ($51,550,000) 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




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      04310929


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 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.




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      04310929


(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
Trustees 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,
accompanied by registration instructions, the Company shall execute and the
Trustee shall 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




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      04310929


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 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 authenticate and deliver, in the name of the




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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 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.




(h)           The
Company shall designate an office or offices or agency or agencies where
Securities may be surrendered for registration or 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 a “Qualified Purchaser” as such term is
defined in Section 2(a)(51) of the Investment Company 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 United States Internal
Revenue Code of 1986, as amended, 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




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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 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 written request
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.




(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.




(g)           The
Securities may only be transferred to a “Qualified Purchaser” as such term is
defined in Section 2(a)(51) of the Investment Company Act.




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.




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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.




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.




SECTION
3.13.  Replacement
Securities.




As of the
date hereof, the Company shall execute and deliver to the Trustee Floating Rate
Series A Junior Subordinated Note in the principal sum of One Million One
Thousand Dollars ($1,001,000) and Floating Rate Series B Junior Subordinated
Note in the principal sum of Fifty Million Five Hundred Forty Nine Thousand
Dollars ($50,549,000) against the receipt by the Company of the Floating Rate
Junior Subordinated Note in the principal sum of Fifty One Million Five Hundred
Fifty Thousand Dollars ($51,550,000).




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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 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




(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




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(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 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 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 in any material respect, 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;




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(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, 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 Indenture Trustee, or the holders of a
majority in aggregate Liquidation Amount of the Preferred Securities, by
written




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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




(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




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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 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 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.




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;




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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.




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




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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 discontinued or abandoned for any reason, or has been
determined adversely to the Trustee, 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, 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, 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




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(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 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 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.




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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.




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 organized and doing
business under the laws of the United States or of any state thereof, authorized
to exercise corporate trust powers, having 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 corporation
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 corporation 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




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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 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




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(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 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




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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;




(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;




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(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 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
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,  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




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(iii)  to
the fullest extent permitted by applicable law, to indemnify the Trustee 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 trust or the performance of the Trustee’s duties
hereunder, including 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




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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 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 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 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




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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 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 a corporation 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.




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(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 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:




JPMORGAN
CHASE BANK, National Association, 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




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(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,




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.




(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) Taberna Capital Management, LLC,
450 Park, 23rd Floor,
New York, NY 10022, Attn:  Mitchell Kahn (or such other address
as designated by Taberna Capital Management, LLC) and (iv) any beneficial owner
of the Securities reasonably identified to the Company (which identification may
be made either by such beneficial owner or by Taberna Capital Management, LLC),
a duly completed and executed certificate substantially and substantively 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.  The delivery requirements
under this Section 7.3(b) may be satisfied by compliance with Section 8.16(b) of
the Trust Agreement.




(c)           If
the Company intends to file its annual and quarterly information with the
Securities and Exchange Commission (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




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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 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.




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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




(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




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this
clause (b) 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 (c) 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 (d) 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




(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;




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




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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.




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.




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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 a
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 so to
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 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




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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 covering the preceding calendar 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.  The delivery requirements of this Section 10.3 may be
satisfied by compliance with Section 8.16(a) of the Trust
Agreement.




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 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.




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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 shares of the Company’s capital stock
(for the avoidance of doubt, the term “capital stock” includes both common stock
and preferred stock of the Company), (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 such subsidiaries preferred
stock (for the avoidance of doubt, whether such preferred stock is 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 shares of capital
stock of the Company in connection with any 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 plan or in connection with the issuance of capital
stock of the Company (or securities convertible into or exercisable for such
capital stock) 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 capital stock (or any capital stock of a
Subsidiary of the Company) for any class or series of the Company’s capital
stock or of any class or series of the Company’s indebtedness for any class or
series of the Company’s capital stock, (C) the purchase of fractional interests
in shares of the Company’s capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged,
(D) any declaration of a dividend in connection with any Rights Plan, the
issuance of rights, stock or other property under any Rights Plan or the
redemption or repurchase of rights pursuant thereto or (E) any dividend in the
form of




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stock,
warrants, options or other rights where the dividend stock or the stock issuable
upon exercise of such warrants, options or other rights is the same stock as
that on which the dividend is being paid or ranks pari passu with or junior to
such stock).




(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)           The
Company also agrees to use its reasonable efforts to meet the requirements to
qualify, for the fiscal year ending December 31, 2004 and all future fiscal
years, as a real estate investment trust under the Internal Revenue Code of
1986, as amended.




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.




ARTICLE
XI









Redemption
of Securities




SECTION
11.1.Optional
Redemption.




(a)           Series
A Securities: The Company may, at its option, on any Interest Payment Date, on
or after March 30, 2010, redeem the Series A Securities in whole at any time or
in part




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from time
to time, at a Redemption Price equal to one hundred percent (100%) of the
principal amount thereof (or of the redeemed 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 “Series
A Optional Redemption
Price”).




(b)           Series
B Securities:  The Company may, at its option, on any Interest Payment
Date, on or after April 30, 2010, redeem the Series B 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 amount thereof (or of the redeemed 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 “Series B Optional Redemption
Price”).




SECTION
11.2.Special Event
Redemption.




(a)           Series
A Securities:  Prior to March 30, 2010, upon the occurrence and during
the continuation of a Special Event, the Company may, at its option, redeem the
Series A 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 “Series A
Special Redemption
Price”).




(b)           Series
B Securities:  Prior to April 30, 2010, upon the occurrence and during
the continuation of a Special Event, the Company may, at its option, redeem the
Series B 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 “Series B 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 Series A Securities or Series B Securities, as the case may
be, are to be redeemed, the particular Securities of such Series to be redeemed
shall be selected and




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




(b)           The
Trustee shall promptly notify the Company in writing of the Securities of such
Series selected for redemption and, in the case of any Securities of such Series
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 case of any
such redemption in part, the unredeemed 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..




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(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 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 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
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




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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.




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 capital stock 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 or
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




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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 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




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the
rights of the holders of such Senior Debt to receive payments and distributions
of cash, 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 of the
Holders of the Securities on the one hand and the holders of Senior Debt on the
other hand. 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




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the
Securities and without impairing or releasing the subordination provided in this
Article XII or
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




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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.




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.




* * *
*




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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.




BiminiMortgage Management,
Inc.











By:  ________________________________


Name:  Jeffrey
J. Zimmer




Title:  Chief
Executive Officer







JPMorgan
Chase Bank, National Association, as Trustee








By:  __________________________________


Name:




Title:







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      04310929
 
 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 an Interest Payment
Date (except with respect to the first Interest Payment Period, such date shall
be May 13, 2005)(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.




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                  Schedule
      A-
 
 Exhibit
A


Form
of Officer’s Financial Certificate




The
undersigned, the [Chief Financial Officer/Treasurer/Assistant Treasurer/
Secretary/ Assistant Secretary, Chairman/ViceChairman/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 September
[__], 2005 (the “Indenture”), among BiminiMortgage Management,
Inc. (the “Company”) and JPMorgan Chase Bank, National Association, as trustee,
that, as of [date], [20__], the Company and its Subsidiaries, if
applicable, had the following ratios and balances:




As of
[Quarterly/Annual Financial Date], 20__







Senior
      secured indebtedness for borrowed money (“Debt”)
            $_____Senior
      unsecured Debt
            $_____Subordinated
      Debt
            $_____Total
      Debt
            $
      _____Ratio
      of (x) senior secured and unsecured Debt to (y) total Debt
            _____%





·
            A
      table describing the quarterly report calculation procedures is provided
      on page 3 hereof




[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 [date], 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 ended [date], 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 [date], 20__, and such financial statements have been
prepared in accordance with GAAP consistently applied throughout the period
involved (expect as otherwise noted therein).




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




5093320
      04310929
 
 Exhibit
A







BiminiMortgage Management,
Inc.








_______________________________


By:


Name:




BiminiMortgage
      Management, Inc.


3305
      Flamingo Drive
              Vero Beach, FL 32963
              772-231-1400






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