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Exhibit 4.1
BANKUNITED FINANCIAL
CORPORATION
$120,000,000
3.125% Convertible Senior
Notes due 2034
SECOND SUPPLEMENTAL
INDENTURE
Dated as of
February 20, 2008
to
INDENTURE
Dated as of
February 27, 2004
U.S. BANK NATIONAL
ASSOCIATION
as Trustee
SECOND SUPPLEMENTAL
INDENTURE, effective as of February 20, 2008 (this
“Second Supplemental Indenture”), to that
certain Indenture, dated as of February 27, 2004, as
supplemented by the First Supplemental Indenture, dated as of
December 28, 2004 (collectively, the
“Indenture”) between BANKUNITED FINANCIAL
CORPORATION, a Florida Corporation (the
“Company”), and U.S. BANK NATIONAL ASSOCIATION,
a national banking association duly organized and existing under
the laws of the United States as trustee (the
“Trustee”). All terms used herein and not
otherwise defined herein shall have the same respective meanings as
in the Indenture.
RECITALS:
A. The Company has heretofore
executed and delivered the Indenture providing for the issuance of
3.125% Convertible Senior Notes due 2034 (the
“Securities”);
B. Section ll.l(j) of the
Indenture provides that, except as otherwise provided in the
Indenture, the Company and the Trustee may amend, modify or
supplement the Indenture without the consent of any Security Holder
to cure any ambiguity, correct or supplement any provision in the
Indenture which may be inconsistent with any other provisions in
the Indenture or which is otherwise defective, or to make any other
provisions with respect to matters or questions arising under the
Indenture which the Company may deem necessary or desirable and
which shall not be inconsistent with the provisions of the
Indenture, provided, however, that such action does not adversely
affect the interests of the Holders of the Securities.
C. Section 12.1(b)(i) of
the Indenture provides that in certain events, including a
distribution by the Company to all holders of Class A Common
Stock rights or warrants (other than pursuant to a stockholder
rights plan) entitling them to purchase Class A Common Stock
at less than the Sale Price of the Class A Common Stock at the
time of the distribution of the rights or warrants:
“the Company must
notify, in writing, Holders of Securities of the occurrence of such
an event at least 20 days prior to the Ex-Dividend Date for any
such distribution. Once the Company has given such notice, Holders
may surrender their Securities for conversion at any time until the
earlier of the close of business on the Business Day immediately
preceding the Ex-Dividend Date or the date of announcement by the
Company that the distribution will not take place. No Holder may
convert its Securities pursuant to this Section 12.1(b) if the
Holder may participate i
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