Exhibit 1.1
iMEDIA BRANDS, INC.
$75,000,000
8.50% Senior Unsecured Notes Due 2026
Underwriting Agreement
September 23, 2021
B. Riley Securities, Inc.
299 Park Avenue, 21st Floor
New York, New York 10171
As the Representative of the several Underwriters
Ladies and Gentlemen:
iMedia Brands, Inc.,
a company incorporated in Minnesota (the “Company”), confirms its agreement with each of the Underwriters listed on
Schedule I hereto (the “Underwriters”), for whom B. Riley Securities, Inc. is acting as Representative
(in such capacity, the “Representative”), with respect to (i) the issuance and sale by the Company of $75,000,000
aggregate principal amount of its 8.50% senior unsecured notes due 2026 (the “Firm Notes”), and the purchase by the
Underwriters, acting severally and not jointly, of the respective aggregate principal amount of the Firm Notes set forth opposite the
names of each of the Underwriters listed in Schedule I hereto and (ii) the grant of the option described in Section 2(b) hereof
to purchase all or any part of $5,000,000 aggregate principal amount of additional 8.50% senior unsecured notes due 2026 (the “Option
Notes”) from the Company to the Underwriters, acting severally and not jointly. The Firm Notes to be purchased by the Underwriters
and all or any part of the Option Notes subject to the option described in Section 2(b) hereof are hereinafter called, collectively,
the “Notes.” The Notes will be issued pursuant to an indenture (the “Base Indenture”) between the
Company and U.S. Bank National Association, as trustee (the “Trustee”), as supplemented by a first supplemental indenture
(the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”) between the
Company and the Trustee.
The Company understands that
the Underwriters propose to make a public offering of the Notes as soon as the Underwriters deem advisable after this Underwriting Agreement
(the “Agreement”) has been executed and delivered.
The Company has filed
with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3
(No. 333-258519), including a related base prospectus, for the registration of the Notes under the Securities Act of 1933, as
amended, and the rules and regulations thereunder (the “Securities Act”). The registration statement has
been declared effective under the Securities Act by the Commission. Such registration statement, as of any time, means such
registration statement as amended by any post-effective amendments thereto to such time, including the exhibits and any schedules
thereto at such time, the documents incorporated by reference therein at such time pursuant to Item 12 of Form S-3 under the
Securities Act and the documents otherwise deemed to be a part thereof as of such time pursuant to Rule 430B
(“Rule 430B”) under the Securities Act (the “Rule 430B Information”), is referred to
herein as the “Registration Statement”; provided, however, that the “Registration Statement” without
reference to a time means such registration statement as amended by any post-effective amendments thereto as of the time of the
Initial Sale Time (as defined herein) for the Notes, which time shall be considered the “new effective date” of such
registration statement with respect to the Notes within the meaning of paragraph (f)(2) of Rule 430B of the Securities
Act, including the exhibits and schedules thereto as of such time, the documents incorporated by reference therein at such time
pursuant to Item 12 of Form S-3 under the Securities Act and the Rule 430B Information. Any registration statement filed
pursuant to Rule 462(b) of the Securities Act, if any, is hereinafter called the “Rule 462(b) Registration
Statement,” and after such filing the term “Registration Statement” shall include the
Rule 462(b) Registration Statement.
The base prospectus in the
form in which it has most recently been filed with the Commission on or prior to the date of this Agreement is herein called the “Base
Prospectus.” Each preliminary prospectus supplement to the Base Prospectus (including the Base Prospectus as so supplemented)
that describes the Notes and the offering thereof, that omitted the Rule 430B Information and that was used prior to the filing of
the final prospectus supplement referred to in the following sentence is herein called a “Preliminary Prospectus.”
Promptly after execution and delivery of this Agreement, the Company will prepare and file with the Commission a final prospectus supplement
to the Base Prospectus relating to the Notes and the offering thereof (including the terms reflected in the Final Term Sheet, as defined
herein) in accordance with the provisions of Rule 430B and Rule 424(b) of the Securities Act. Such final prospectus supplement
(including the Base Prospectus as so supplemented) in the form filed with the Commission pursuant to Rule 424(b) is herein called
the “Prospectus.” Any reference herein to the Base Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act as of
the date of such prospectus, including but are not limited to, the Current Report on Form 8-K (including exhibits attached thereof)
filed by the Company on September 22, 2021 (excluding any information furnished pursuant to Item 7.01).
For purposes of this
Agreement, all references to the Registration Statement, the Rule 462(b) Registration Statement, the Base Prospectus, any
Preliminary Prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy
filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System or any successor system thereto
(“EDGAR”). All references in this Agreement to financial statements and schedules and other information which is
“described,” “contained,” “included” or “stated” in the Registration Statement, the
Base Prospectus, any Preliminary Prospectus or the Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which is incorporated by reference in or otherwise deemed
by the Securities Act to be a part of or included in the Registration Statement, the Base Prospectus, any Preliminary Prospectus or
the Prospectus, as the case may be; and all references in this Agreement to amendments or supplements to the Registration Statement,
the Base Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to mean and include the subsequent filing of any
document under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the
“Exchange Act”), and which is deemed to be incorporated by reference therein or otherwise deemed by the
Securities Act to be a part thereof.
The term “Disclosure
Package” means (i) the Preliminary Prospectus, as most recently amended or supplemented immediately prior to the Initial
Sale Time, (ii) the Issuer Free Writing Prospectuses (as defined below), if any, identified in Schedule II hereto, (iii) any
other Free Writing Prospectus (as defined below) that the parties hereto shall hereafter expressly agree to treat as part of the Disclosure
Package, and (iv) the information set forth on the final term sheet substantially in the form of Exhibit A (the “Final
Term Sheet”).
The term “Issuer
Free Writing Prospectus” means any issuer free writing prospectus, as defined in Rule 433 of the Securities Act. The term
“Free Writing Prospectus” means any free writing prospectus, as defined in Rule 405 of the Securities Act.
1. Representations
and Warranties of the Company. The Company represents and warrants to, and agrees with, the Underwriters as set forth below in
this Section 1:
(a) Subsidiaries.
All of the direct and indirect material Subsidiaries (as defined below) of the Company are set forth in the SEC Reports (as defined below).
The Company owns, directly or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any
Liens (as defined below) (other than Liens securing obligations under each of (i) that certain Revolving Credit and Security Agreement,
dated February 9, 2012, as amended, among the Company, certain of the Company’s Subsidiaries party thereto as borrowers, and
PNC Bank, National Association, as the same may be further amended or supplemented from time to time (the “PNC Credit Agreement”),
(ii) that certain Loan and Security Agreement, dated July 30, 2021, by and among the Company, as the lead borrower, certain
of its subsidiaries party thereto as borrowers, Siena Lending Group LLC and the other financial institutions party thereto from time to
time, Siena Lending Group LLC, as agent, and VVI Fulfillment Center, Inc., EP Properties, LLC and Portal Acquisition Company, as
guarantors (the “Loan Agreement”) , and (iii) that certain Promissory Note Secured by Mortgages, dated July 30,
2021, by and among VVI Fulfilment Center, Inc. and EP Properties, LLC, as borrowers, and GreenLake Real Estate Finance LLC, as lender
(the “Term Loan” and together with the PNC Credit Agreement and the Loan Agreement, the “Credit Facilities”),
and all of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable
and free of preemptive and similar rights to subscribe for or purchase securities. If the Company has no subsidiary, which includes any
direct or indirect subsidiary of the Company formed or acquired after the date hereof (each, a “Subsidiary,” and collectively,
the “Subsidiaries”), all other references to the Subsidiaries or any of them in this Agreement and any other documents
or agreements executed in connection with the transactions contemplated hereunder (the “Transaction Documents”) shall
be disregarded.
(b) Organization
and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority to
own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any Subsidiary is in
violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational
or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good standing as a foreign
corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected
to result in a material adverse effect (i) on the legality, validity or enforceability of any Transaction Document, (ii) on
the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company and the Subsidiaries, taken
as a whole or (iii) on the Company’s ability to perform in any material respect on a timely basis its obligations under any
Transaction Document (a “Material Adverse Effect”), and no action, claim, suit, investigation or proceeding (including,
without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced or threatened (each, a “Proceeding”),
has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority
or qualification.
(c) Authority.
The Company has the requisite corporate power and authority to execute and deliver, and perform its obligations under this Agreement,
the Indenture, and the Notes.
(d) S-3
Eligibility. The Company meets the requirements for use of Form S-3 under the Securities Act, including Instruction I.B.1 thereof;
each of the Registration Statement and any Rule 462(b) Registration Statement has become effective under the Securities Act
and no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been
issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company,
are threatened by the Commission; and the Company has complied to the Commission’s satisfaction with any request on the part of
the Commission for additional information. The Commission has not issued any order preventing or suspending the use of any Preliminary
Prospectus.
(e) Compliance
with Law. The Preliminary Prospectus when filed and the Registration Statement as of each effective date (including each deemed
effective date with respect to the Underwriters pursuant to Rule 430B or otherwise under the Securities Act) and as of the date
hereof, complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement, the
Preliminary Prospectus or the Prospectus will, when they become effective or are filed with the Commission, as the case may be,
comply, in all material respects with the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended, and
the rules and regulations of the Commission thereunder (the “Trust Indenture Act”). The documents
incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they
were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the
Exchange Act.
(f) No
Material Misstatement and Omission. The Registration Statement, as of each effective date (including each deemed effective date with
respect to the Underwriters pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof and at the Closing
Date or any Option Closing Date, each as defined herein, did not, and does not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Preliminary
Prospectus does not, and the Prospectus or any amendment or supplement thereto will not, as of the applicable filing date, the date hereof
and at the Closing Date and on each Option Closing Date (if any), contain an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided,
however, that the Company makes no warranty or representation with respect to (A) any statement contained in or omitted from the
Registration Statement, the Preliminary Prospectus or the Prospectus in reliance upon and in conformity with the information concerning
the Underwriters and furnished in writing by or on behalf of the Underwriters by the Representative to the Company expressly for use therein
(that information being limited to that described in the last sentence of the first paragraph of Section 7(b) hereof)
or (B) the part of the Registration Statement that constitutes the Statement of Eligibility (Form T-1 under the Trust Indenture
Act of the Trustee); the documents incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus,
at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission,
as the case may be, when read together with the other information in the Registration Statement, the Disclosure Package or the Prospectus,
as the case may be, did not and will not include an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
(g) Accuracy
of Disclosure. As of 4:40 p.m. (Eastern time) on September 23, 2021 (the “Initial Sale Time”), the Disclosure
Package did not, and at the time of each sale of Notes and at the Closing Date and each Option Closing Date, the Disclosure Package will
not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or
representation with respect to (A) any statement contained in or omitted from the Disclosure Package in reliance upon and in conformity
with the information concerning the Underwriters and furnished in writing by or on behalf of the Underwriters by the Representative to
the Company expressly for use therein (that information being limited to that described in the last sentence of the first paragraph of
Section 7(b) hereof), or (B) the part of the Registration Statement that constitutes the Statement of Eligibility (Form T-1
under the Trust Indenture Act) of the Trustee.
(h) Distribution
of Offering Materials. In connection with this offering, the Company has not offered and will not offer the Notes in a manner in
violation of the Securities Act; and the Company has not distributed and will not distribute any offering material in connection
with the offer and sale of the Notes except for the Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus or the
Registration Statement or for communications satisfying the requirements of Rule 134 under the Securities Act.
(i) No
Conflicting Free Writing Prospectus. Each Issuer Free Writing Prospectus (including the Final Term Sheet), if any, as of its issue
date and at all subsequent times through the completion of the public offer and sale of the Notes did not, does not and will not include
any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement, Preliminary
Prospectus or the Prospectus, including any document incorporated by reference therein, and any preliminary or other prospectus deemed
to be a part thereof that has not been superseded or modified.
(j) Eligibility
to Use Free Writing Prospectus. The Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant
to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) under
the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each
Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act
or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements
of the Securities Act. Except for the Issuer Free Writing Prospectuses identified in Schedule II hereto, the information set forth on
Exhibit A and any electronic road show relating to the public offering of the Notes contemplated herein, the Company has not
prepared, used or referred to, and will not, without the prior consent of the Representative, prepare, use or refer to, any Free Writing
Prospectus.
(k) Conformity
with EDGAR Filing. The Preliminary Prospectus, the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer
Free Writing Prospectus was required to be filed with the Commission) delivered to the Underwriters for use in connection with the public
offering of the Notes contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission
for filing via EDGAR, except to the extent permitted by Regulation S-T of the Securities Act.
(l) Registration
Statement. The Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus in connection
with the public offering of the Notes contemplated herein.
(m) Stop
Order. The Commission has not issued any order preventing or suspending the use of any Preliminary Prospectus.
(n) Capitalization.
The capitalization of the Company is as set forth in the SEC Reports. The Company has not issued any capital stock since its most
recently filed periodic report under the Exchange Act, other than as disclosed in the SEC Reports or pursuant to the exercise of
employee stock options under the Company’s stock option or other equity compensation plans, the issuance of shares of common
stock of the Company (“Common Stock”) to employees pursuant to the Company’s employee stock purchase
plans and pursuant to the conversion and/or exercise of Common Stock equivalents outstanding as of the date of the most recently
filed periodic report under the Exchange Act. No individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or
other entity of any kind (each, a “Person”) has any right of first refusal, preemptive right, right of
participation, or any similar right to participate in the transactions contemplated by the Transaction Documents. Except as set
forth in the SEC Reports, there are no outstanding securities or instruments of the Company or any Subsidiary that contain any
redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or
any Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary.
(o) Conformity.
The Notes conform in all material respects to the descriptions thereof contained in the Registration Statement, the Prospectus and the
Disclosure Package; the Indenture conforms in all material respects to the descriptions thereof contained in the Registration Statement,
the Disclosure Package and the Prospectus; and the statements in the Registration Statement, the Disclosure Package and the Prospectus
under the headings “Material U.S. Federal Income Tax Considerations” fairly summarize in all material respects the legal matters
therein described.
(p) Authorization
of Agreement. This Agreement has been duly and validly authorized, executed and delivered by the Company.
(q) Authorization
of the Indenture. The Indenture has been duly and validly authorized by the Company and, when duly executed and delivered by the Company,
and assuming due authorization, execution, delivery, validity, legally binding effect and enforceability thereof by the Trustee, will
constitute a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws
relating to or affecting creditors’ rights generally and by general equitable principles, regardless whether enforcement is considered
in a proceeding in equity or at law, that may limit the right to specific enforcement of remedies, and except as rights to indemnity or
contribution may be limited by federal or state securities laws and the public policy underlying such laws.
(r) Authorization.
The Notes to be issued and sold by the Company to the Underwriters hereunder have been duly and validly authorized and, when issued, authenticated
and delivered against payment therefor in accordance with this Agreement and the Indenture, will constitute valid and legally binding
obligations of the Company, except as may be limited by applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium
and other laws relating to or affecting creditors’ rights generally and by general equitable principles, regardless whether enforcement
is considered in a proceeding in equity or at law, that may limit the right to specific enforcement of remedies, and except as rights
to indemnity or contribution may be limited by federal or state securities laws and the public policy underlying such laws; and will be
in the form contemplated by, and entitled to the benefits of, the Indenture.
(s) Consents.
No approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission,
board, body, authority or agency is required in connection with the execution, delivery and performance of this Agreement or the Indenture
by the Company, as applicable, the consummation of the transactions contemplated herein or thereunder (including the Company’s sale
and delivery of the Notes), other than (A) such as have been obtained, or will have been obtained at the Closing Date or the relevant
Option Closing Date, as the case may be, under the Securities Act, the Trust Indenture Act and the Exchange Act, (B) such approvals
as have been obtained in connection with the approval of the listing of the Notes on Nasdaq, (C) such approvals as have been obtained
under the rules and regulations of FINRA and (D) any necessary qualification under the securities or blue sky laws of the various
jurisdictions in which the Notes are being offered by the Underwriters (collectively, the “Required Approvals”).
(t) No
Conflicts. Neither the issuance and sale of the Notes, the execution, delivery or performance of this Agreement or the Indenture by
the Company, nor the consummation by the Company of the transactions herein or therein contemplated (i) conflicts or will conflict
with or constitutes or will constitute a breach of the charter, bylaws or other organizational documents of the Company, (ii) conflicts
or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other
instrument to which the Company or any Subsidiary is a party or by which it or any of its properties may be bound, except for such conflicts
that would not reasonably be expected to result in a Material Adverse Effect or (iii) violates or will violate any material statute,
law, regulation or filing or judgment, injunction, order or decree applicable to the Company or any Subsidiary or any of their properties
or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary
pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property
or assets of the Company or any Subsidiary is subject, except for such violations that would not reasonably be expected to result in a
Material Adverse Effect.
(u) SEC
Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be
filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof,
for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material)
(the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together with the Preliminary
Prospectus, the Prospectus and any prospectus supplement, being collectively referred to herein as the “SEC Reports”)
on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration
of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities
Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Reports
comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect
thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with United States generally accepted
accounting principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise
specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes
required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries
as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited
statements, to normal, immaterial, year-end audit adjustments. The agreements and documents described in the Registration Statement,
the Preliminary Prospectus, the Prospectus and the SEC Reports conform to the descriptions thereof contained therein and there are no
agreements or other documents required by the Securities Act and the rules and regulations thereunder to be described in the Registration
Statement, the Preliminary Prospectus, the Prospectus or the SEC Reports or to be filed with the Commission as exhibits to the Registration
Statement, that have not been so described or filed. Each agreement or other instrument (however characterized or described) to which
the Company is a party or by which it is or may be bound or affected and (i) that is referred to in the Registration Statement,
the Prospectus or the SEC Reports, or (ii) is material to the Company’s business, has been duly authorized and validly executed
by the Company, is in full force and effect in all material respects and is enforceable against the Company and, to the Company’s
knowledge, the other parties thereto, in accordance with its terms, except (x) as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights generally, (y) as enforceability of any indemnification
or contribution provision may be limited under the federal and state securities laws, and (z) that the remedy of specific performance
and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before
which any proceeding therefore may be brought. None of such agreements or instruments has been assigned by the Company, and neither the
Company nor, to the best of the Company’s knowledge, any other party is in default thereunder and, to the best of the Company’s
knowledge, no event has occurred that, with the lapse of time or the giving of notice, or both, would constitute a default thereunder.
To the best of the Company’s knowledge, performance by the Company of the material provisions of such agreements or instruments
will not result in a violation of any existing applicable law, rule, regulation, judgment, order or decree of any governmental agency
or court, domestic or foreign, having jurisdiction over the Company or any of its assets or businesses, including, without limitation,
those relating to environmental laws and regulations, except for violations that would not reasonably be expected to result in a Material
Adverse Effect.
(v) Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included within
the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date hereof, (i) there has been
no event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse Effect, (ii) the
Company has not incurred any material liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred
in the ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the
Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company has not
altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property
to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock, (v) the
Company has not issued any equity securities to any officer, director or Affiliate, except pursuant to existing Company stock option
or other equity compensation plans and (vi) no officer or director of the Company has resigned from any position with the Company.
The Company does not have pending before the Commission any request for confidential treatment of information. Except for the issuance
of the Notes contemplated by this Agreement, no event, liability, fact, circumstance, occurrence or development has occurred or exists
or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries or their respective businesses, prospects,
properties, operations, assets or financial condition that would be required to be disclosed by the Company under applicable securities
laws at the time this representation is made or deemed made that has not been publicly disclosed prior to the date that this representation
is made. Unless otherwise disclosed in an SEC Report filed prior to the date hereof, the Company has not: (i) issued any securities
or incurred any liability or obligation, direct or contingent, for borrowed money; or (ii) declared or paid any dividend or made
any other distribution on or in respect to its capital stock.
(w) Litigation.
There is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Company, threatened
against or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator, governmental
or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”)
which (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the Notes
or (ii) could, if there were an unfavorable decision, reasonably be expected to result in a Material Adverse Effect. Neither the
Company nor any Subsidiary, nor, to the knowledge of the Company, any director or officer thereof, is or has been the subject of any Action
involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. There has
not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the Commission involving the
Company or any current or former director or officer of the Company. The Commission has not issued any stop order or other order suspending
the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act.
(x) Labor
Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of the
Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its
Subsidiaries’ employees is a member of a union that relates to such employee’s relationship with the Company or such
Subsidiary, and neither the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and
its Subsidiaries believe that their relationships with their employees are good. To the knowledge of the Company, no executive
officer of the Company or any Subsidiary, is, or is now expected to be, in violation of any material term of any employment
contract, confidentiality, disclosure or proprietary information agreement or non-competition agreement, or any other contract or
agreement or any restrictive covenant in favor of any third party, and the continued employment of each such executive officer does
not subject the Company or any of its Subsidiaries to any liability with respect to any of the foregoing matters. The Company and
its Subsidiaries are in compliance with all U.S. federal, state, local and foreign laws and regulations relating to employment and
employment practices, terms and conditions of employment and wages and hours, except where the failure to be in compliance could
not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(y) Compliance.
Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been waived
that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or
any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement
or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default
or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator or other governmental
authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental authority, including
without limitation all foreign, federal, state and local laws relating to taxes, environmental protection, occupational health and safety,
product quality and safety and employment and labor matters, except in each case as could not have or reasonably be expected to result
in a Material Adverse Effect.
(z) Regulatory
Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports, except
where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (each, a “Material
Permit”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification
of any Material Permit. The disclosures in the Registration Statement concerning the effects of Federal, State, local and all foreign
regulation on the Company’s business as currently contemplated are correct in all material respects.
(aa) Title
to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to, or have valid and marketable rights to
lease or otherwise use, all real property and all personal property that is material to the business of the Company and the Subsidiaries,
in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries, (ii) Liens for
the payment of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP, and the
payment of which is neither delinquent nor subject to penalties, and (iii) Liens securing obligations under the Credit Facilities.
Any real property and facilities held under lease by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable
leases with which the Company and the Subsidiaries are in material compliance.
(bb) Intellectual
Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks, trademark applications,
service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights and similar rights
necessary or required for use in connection with their respective businesses as described in the SEC Reports and which the failure to
do so could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). None of, and neither
the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired,
terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date of this Agreement,
except for expirations, terminations or abandonments that, individually or in the aggregate, would not have or reasonably be expected
to result in a Material Adverse Effect. Neither the Company nor any Subsidiary has received, since the date of the latest audited financial
statements included within the SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property
Rights violate or infringe upon the rights of any Person, except as would not, individually or in the aggregate, have or reasonably be
expected to result in a Material Adverse Effect. To the knowledge of the Company, all such Intellectual Property Rights are enforceable
and there is no existing infringement by another Person of any of the Intellectual Property Rights, except as would not, individually
or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect. The Company and its Subsidiaries have taken
reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual properties, except where failure
to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(cc) Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including, but not limited
to, directors and officers insurance coverage. Neither the Company nor any Subsidiary has any reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business without a significant increase in cost.
(dd) Transactions
With Affiliates and Employees. Except as set forth in the SEC Reports, none of the officers or directors of the Company or any Subsidiary
and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction with
the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, providing
for the borrowing of money from or lending of money to or otherwise requiring payments to or from, any officer, director or such employee
or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial interest or is
an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment of salary
or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other
employee benefits, including stock option agreements under any stock option or other equity compensation plans of the Company.
(ee) Sarbanes-Oxley;
Internal Accounting Controls. The Company and the Subsidiaries are in material compliance with any and all applicable requirements
of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations promulgated
by the Commission thereunder that are effective as of the date hereof and as of the Closing Date. The Company and the Subsidiaries maintain
a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance
with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP, except as may be otherwise specified in such financial statements or the notes thereto and
except that unaudited financial statements may not contain all footnotes required by GAAP, and to maintain asset accountability, (iii) access
to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
The Company and the Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls and procedures to ensure that information required
to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported,
within the time periods specified in the Commission’s rules and forms. The Company’s certifying officers have evaluated
the effectiveness of the disclosure controls and procedures of the Company and the Subsidiaries as of the end of the period covered by
the most recently filed periodic report under the Exchange Act (such date, the “Evaluation Date”). The Company presented
in its most recently filed periodic report under the Exchange Act the conclusions of the certifying officers about the effectiveness of
the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been
no changes in the internal control over financial reporting (as such term is defined in the Exchange Act) of the Company and its Subsidiaries
that have materially affected, or is reasonably likely to materially affect, the internal control over financial reporting of the Company
and its Subsidiaries.
(ff) Certain
Fees. Except as set forth in the Prospectus, no brokerage or finder’s fees or commissions are or will be payable by the Company,
any Subsidiary or Affiliate of the Company to any broker, financial advisor or consultant, finder, placement agent, investment banker,
bank or other Person with respect to the transactions contemplated by the Transaction Documents. To the Company’s knowledge, there
are no other arrangements, agreements or understandings of the Company or, to the Company’s knowledge, any of its stockholders that
may affect the Underwriters’ compensation, as determined by FINRA. Except as disclosed in the Company’s SEC Reports, the Company
has not made any direct or indirect payments (in cash, securities or otherwise) to: (i) any person, as a finder’s fee, consulting
fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons who raised or
provided capital to the Company; (ii) any FINRA member; or (iii) any person or entity that has any direct or indirect affiliation
or association with any FINRA member, within the twelve months prior to the execution and delivery of this Agreement. None of the net
proceeds of this offering will be paid by the Company to any participating FINRA member or its affiliates, except as specifically authorized
herein.
(gg) Investment
Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Notes will not be or be
an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. The Company
shall conduct its business in a manner so that it will not become an “investment company” subject to registration under the
Investment Company Act of 1940, as amended.
(hh) Registration
Rights. Except as set forth in the SEC Reports, no Person has any right to cause the Company or any Subsidiary to effect the registration
under the Securities Act of any securities of the Company or any Subsidiary.
(ii) Listing
and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act, and the Company
has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common
Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating such registration.
Except as set forth in the SEC Reports, the Company has not, in the 12 months preceding the date hereof, received notice from any trading
market on which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance with the listing
or maintenance requirements of such trading market. The Company is, and has no reason to believe that it will not in the foreseeable future
continue to be, in compliance with all such listing and maintenance requirements. The Common Stock is currently eligible for electronic
transfer through the Depository Trust Company (“DTC”) or another established clearing corporation and the Company is
current in payment of the fees of DTC (or such other established clearing corporation) in connection with such electronic transfer.
(jj) Application
of Takeover Protections. Any control share acquisition, business combination, poison pill (including any distribution under a rights
agreement) or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents)
or the laws of its state of incorporation shall not be applicable as a result of the consummation of the transactions contemplated under
this Agreement.
(kk) No
Integrated Offering. Neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or
indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause
this offering of the Notes to be integrated with prior offerings by the Company for purposes of any applicable shareholder approval provisions
of any trading market on which any of the securities of the Company are listed or designated.
(ll) Solvency.
Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the receipt by the Company
of the proceeds from the sale of the Notes hereunder, (i) the fair saleable value of the Company’s assets exceeds the amount
that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including known contingent
liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry on its business
as now conducted and as proposed to be conducted including its capital needs taking into account the particular capital requirements
of the business conducted by the Company, consolidated and projected capital requirements and capital availability thereof, and (iii) the
current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all of its assets, after
taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when
such amounts are required to be paid. The Company does not intend to incur debts beyond its ability to pay such debts as they mature
(taking into account the timing and amounts of cash to be payable on or in respect of its debt). The Company has no knowledge of any
facts or circumstances which lead it to believe that it will file for reorganization or liquidation under the bankruptcy or reorganization
laws of any jurisdiction within one year from the Closing Date. The SEC Reports sets forth as of the date hereof all outstanding secured
and unsecured Indebtedness (as defined below) of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments.
Neither the Company nor any Subsidiary is in default with respect to (a) any liabilities for borrowed money or amounts owed in excess
of $50,000 (other than trade accounts payable incurred in the ordinary course of business), (b) all guaranties, endorsements and
other contingent obligations in respect of indebtedness of others, whether or not the same are or should be reflected in the Company’s
consolidated balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection
or similar transactions in the ordinary course of business; and (c) the present value of any lease payments in excess of $50,000
due under leases required to be capitalized in accordance with GAAP (collectively, the “Indebtedness”).
(mm) Tax
Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material
Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local income and
all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has
paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns,
reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material taxes
for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material
amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know of no
basis for any such claim. The provisions for taxes payable, if any, shown on the financial statements filed with or as part of the Registration
Statement are sufficient for all accrued and unpaid taxes, whether or not disputed, and for all periods to and including the dates of
such consolidated financial statements. The term “taxes” mean all federal, state, local, foreign, and other net income, gross
income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll,
employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments,
or charges of any kind whatsoever, together with any interest and any penalties, additions to tax, or additional amounts with respect
thereto. The term “returns” means all returns, declarations, reports, statements, and other documents required to be filed
in respect to taxes.
(nn) Foreign
Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any agent or other
person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful contributions,
gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment
to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds,
(iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf
of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of the Foreign
Corrupt Practices Act of 1977, as amended (the “FCPA”). The Company has taken reasonable steps to ensure that its accounting
controls and procedures are sufficient to cause the Company to comply in all material respects with the FCPA.
(oo) Accountants.
To the knowledge and belief of the Company, Deloitte & Touche LLP (the “Company Auditor”) is an independent
registered public accounting firm as required by the Exchange Act. The Company Auditor has not, during the periods covered by the financial
statements included in the Prospectus, provided to the Company any non-audit services, as such term is used in Section 10A(g) of
the Exchange Act, except for such non-audit services as have been approved in advance by the Company’s Audit Committee.
(pp) Stock
Option Plans. Each stock option granted by the Company under the Company’s 2020 Equity Incentive Plan or 2011 Omnibus Incentive
Plan was granted (i) in accordance with the terms of the Company’s respective equity incentive plan and (ii) with an exercise
price at least equal to the fair market value of the Common Stock on the date such stock option would be considered granted under GAAP
and applicable law. No stock option granted under the Company’s equity incentive plans has been backdated. The Company has not knowingly
granted, and there is no and has been no Company policy or practice to knowingly grant stock options prior to, or otherwise knowingly
coordinate the grant of stock options with, the release or other public announcement of material information regarding the Company or
its Subsidiaries or their financial results or prospects.
(qq) Office
of Foreign Assets Control. Neither the Company nor any Subsidiary, nor any of the Company’s executive officers and directors,
and to the knowledge of the Company, no agent, other employee or affiliate of the Company (who are not executive officers or directors)
and no Subsidiary is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury
Department.
(rr) U.S.
Real Property Holding Corporation. The Company is not and, to the Company’s knowledge, has never been a U.S. real property holding
corporation within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify
upon the Representative’s request.
(ss) Bank
Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company Act of
1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System
(the “Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly
or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or
more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the
Company nor any of its Subsidiaries or Affiliates exercises a controlling influence over the management or policies of a bank or any
entity that is subject to the BHCA and to regulation by the Federal Reserve.
(tt) Money
Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in material compliance with
applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering
Laws”), and no Action or Proceeding by or before any court or governmental agency, authority or body or any arbitrator involving
the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary,
threatened.
(uu) D&O
Questionnaires. To the Company’s knowledge, all information contained in the questionnaires previously completed by each of
the Company’s directors and officers prior to the offering provided to the Underwriters is true and correct in all respects and
the Company has not become aware of any information which would cause the information disclosed in such questionnaires to become inaccurate
and incorrect.
(vv) FINRA
Affiliation. To the Company’s knowledge, no officer, director or any beneficial owner of 10% or more of the Company’s
unregistered securities has any direct or indirect affiliation or association with any FINRA member (as determined in accordance with
the rules and regulations of FINRA) that is participating in the Offering. The Company will advise the Representative if it learns
that any officer, director or owner of 10% or more of the Company’s outstanding shares of Common Stock or Common Stock equivalents
is or becomes an affiliate or associated person of a FINRA member firm.
(ww) Officers’
Certificate. Any certificate signed by any duly authorized officer of the Company and delivered to the Representative shall be deemed
a representation and warranty by the Company to the Underwriters as to the matters covered thereby.
(xx) Board
of Directors. The Board of Directors is comprised of the persons set forth in the Company’s definitive proxy statement for
the fiscal year ended January 30, 2021 under the caption “Proposal No. 1: Election of Directors.” The
qualifications of the persons serving as board members and the overall composition of the Board of Directors comply with the
Sarbanes-Oxley Act of 2002 and the rules promulgated thereunder applicable to the Company and the rules of Nasdaq. At
least one member of the Board of Directors qualifies as a “financial expert” as such term is defined under the
Sarbanes-Oxley Act of 2002 and the rules promulgated thereunder and the rules of Nasdaq. In addition, at least a
majority of the persons serving on the Board of Directors qualify as “independent” as defined under the rules of
Nasdaq.
2. Purchase
and Sale.
(a) Firm
Notes. Upon the basis of the representations and warranties and other terms and conditions herein set forth, the Company agrees to
issue and sell to the Underwriters, severally and not jointly, the Firm Notes, and each Underwriter agrees, severally and not jointly,
to purchase from the Company, the aggregate principal amount of the Firm Notes at the purchase price equal to $24.00 per Note, the Company
agrees to issue and sell to the Underwriters, severally and not jointly, the Firm Notes, and each Underwriter agrees, severally and not
jointly, to purchase from the Company the principal amount of the Firm Notes set forth in Schedule I opposite such Underwriter’s
name, plus any additional aggregate principal amount of the Firm Notes which such Underwriter may become obligated to purchase pursuant
to the provisions of Section 8 hereof, subject in each case, to such adjustments among the Underwriters as the Representative in
its sole discretion shall make to eliminate any sales or purchases of the Firm Notes in denominations other than $25.00.
(b) Option
Notes. In addition, upon the basis of the representations and warranties and other terms and conditions herein set forth, the Company
hereby grants an option to the Underwriters, acting severally and not jointly, to purchase from the Company, all or any part of the Option
Notes at the same purchase price to be paid by the Underwriters for the Firm Notes, plus any additional aggregate principal amount of
Option Notes in the same proportion which such Underwriter may become obligated to purchase pursuant to the provisions of Section 8
hereof. The option hereby granted will expire 30 days after the date hereof and may be exercised in whole or in part from time to time
within such 30-day period upon notice by the Representative to the Company setting forth the aggregate principal amount of Option Notes
as to which the several Underwriters are then exercising the option and the time and date of payment and delivery for such Option Notes.
Any such time and date of delivery (an “Option Closing Date”) shall be determined by the Representative, but shall
not be later than five full business days (or earlier, without the consent of the Company, than two full business days) after the exercise
of such option, nor in any event prior to the Closing Date. If the option is exercised as to all or any portion of the Option Notes, each
of the Underwriters, acting severally and not jointly, will purchase its proportionate share of the aggregate principal amount of Option
Notes then being purchased based on its proportionate share of the aggregate principal amount of Firm Notes set forth in Schedule I
opposite the name of such Underwriter, subject in each case, to such adjustments among the Underwriters as the Representative in its sole
discretion shall make to eliminate any sales or purchases of the Option Notes in denominations other than $25.00.
3. Delivery
and Payment.
(a) Firm
Notes. One or more global notes representing the Firm Notes (collectively, the “Firm Global Note”), shall be
delivered by or on behalf of the Company to the nominee of The Depository Trust Company (“DTC”) for the
respective accounts of the Underwriters, with any transfer taxes payable in connection with the sale of the Firm Notes duly paid by
the Company, against payment by or on behalf of the Underwriters of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified to the Representative by the Company. The time and date of such delivery and payment shall
be 10:00 a.m., New York City time, at the office of Faegre Drinker Biddle & Reath LLP, 2200 Wells Fargo Center, 90 South
Seventh Street, Minneapolis, MN 55402-3901 (the “Designated Office”), on September 28, 2021, or at such time
or place on the same or such other date, not later than the fifth business day thereafter, as shall be agreed to by the
Representative and the Company. The time and date at which such delivery and payment are actually made is hereinafter called the
“Closing Date.” The Firm Global Note will be made available for inspection by the Representative not later than
1:00 p.m., New York City time, on the business day prior to the Closing Date.
(b) Option
Notes. One or more global notes (collectively, the “Option Global Note”) shall be delivered by or on behalf of
the Company to the nominee of DTC for the respective accounts of the Underwriters, with any transfer taxes payable in connection with
the sale of the Option Notes duly paid by the Company, against payment by or on behalf of the Underwriters of the purchase price therefor
by wire transfer of Federal (same-day) funds to the account specified to the Representative by the Company. The time and date of such
delivery and payment shall be 10:00 a.m., New York City time, at the Designated Office, on the date specified by the Representative in
the notice given by the Representative to the Company of the Underwriters’ election to purchase such Option Notes or on such other
time and date as the Company and the Representative may agree upon in writing. The Option Global Note will be made available for inspection
by the Representative not later than 1:00 p.m., New York City time, on the business day prior to the Option Closing Date.
4. Agreements
of the Company. The Company agrees with each Underwriter:
(a) The
Company shall furnish such information as may be required and otherwise to cooperate in qualifying the Notes for offering and sale under
(or otherwise obtaining exemptions from the application of) the securities or blue sky laws of such jurisdictions (both domestic and foreign)
as the Representative may designate and to maintain such qualifications in effect as long as requested by the Representative for the distribution
of the Notes; provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process
under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Notes) where it is not
presently qualified.
(b) If,
at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to
be declared effective before the offering of the Notes may commence, the Company will use its reasonable best efforts to cause such post-effective
amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative,
will confirm such advice in writing, when such post-effective amendment has become effective.
(c) The
Company shall prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under
the Securities Act not later than 5:30 p.m. (New York City time), on September 27, 2021 or on such other day as the parties
may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 5:30 p.m. New
York City time) on the day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree
to the Underwriters copies of the Prospectus (or of the Prospectus as amended or supplemented if the Company shall have made any amendments
or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters
may reasonably request for the purposes contemplated by the Securities Act, which Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the version transmitted to the Commission for filing via EDGAR, except to the extent
permitted by Regulation S-T of the Securities Act.
(d) The
Company shall file the Final Term Sheet pursuant to Rule 433(d) under the Securities Act as promptly as possible, but in any
case not later than the time required by such rule.
(e) The
Company shall advise the Representative promptly and (if requested by the Representative) to confirm such advice in writing, when any
post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(f) The
Company shall furnish a copy of each proposed Issuer Free Writing Prospectus, if any, to the Representative and counsel for the Underwriters
and obtain the consent of the Representative (which consent will not be unreasonably withheld or delayed) prior to referring to, using
or filing with the Commission any Issuer Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than
the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto and the Final Term Sheet.
(g) The
Company shall comply with the requirements of Rules 164 and 433 of the Securities Act applicable to any Issuer Free Writing Prospectus,
including timely filing with the Commission, legending and record keeping, as applicable.
(h) The
Company shall advise the Representative immediately, confirming such advice in writing, of (i) the receipt of any comments
from, or any request by, the Commission for amendments or supplements to the Registration Statement, the Preliminary Prospectus, the
Prospectus or any Issuer Free Writing Prospectus, or for additional information with respect thereto, (ii) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the
use of the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or of the suspension of the qualification
of the Notes for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such
purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable
effort to obtain the lifting or removal of such order as soon as possible, (iii) any examination pursuant to Section 8(e) of
the Securities Act concerning the Registration Statement, or (iv) if the Company becomes subject to a proceeding under
Section 8A of the Securities Act in connection with the public offering of Notes contemplated herein, and shall advise the
Representative promptly of any proposal to amend or supplement the Registration Statement, the Preliminary Prospectus, the
Prospectus or any Issuer Free Writing Prospectus and, during the time when a Prospectus relating to the Notes (or in lieu thereof
the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Securities Act, to
file no such amendment or supplement to which the Representative shall reasonably object in writing.
(i) The
Company shall advise the Underwriters promptly of the occurrence of any event or development known to the Company within the time during
which a Prospectus relating to the Notes (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act)
is required to be delivered under the Securities Act which, in the judgment of the Company, (i) would require the making of any change
in the Registration Statement, the Prospectus or the Disclosure Package so that the Registration Statement, the Prospectus or the Disclosure
Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of
which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating
to the Notes, or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package to comply with
any law and, during such time, to promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before
filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company’s own expense to the
Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request
of an appropriate amendment or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package
as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under
the Securities Act) is so delivered, be misleading or, in the case of any Issuer Free Writing Prospectus, conflict with the information
contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law.
(j) The
Company shall file promptly with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus,
the Prospectus or any Issuer Free Writing Prospectus that may, in the reasonable judgment of the Company or the Representative, be required
by the Securities Act or requested by the Commission.
(k) The
Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation and filing of the
Registration Statement, the Preliminary Prospectus and the Prospectus, any Issuer Free Writing Prospectus and each amendment or
supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges
for counting and packaging) of such copies of the Prospectus, Issuer Free Writing Prospectus and the Registration Statement and
all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering
and sale of the Notes; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Notes,
including any stamp or transfer taxes in connection with the original issuance and sale of the Notes to the Underwriters;
(iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or
documents printed (or reproduced) and delivered in connection with the offering of the Notes; (v) any expenses and fees for the
cost of ratings agencies; (vi) any registration or qualification of the Notes for offer and sale under the securities or blue
sky laws of the several states (including filing fees and the reasonable and documented fees and expenses of counsel for the
Underwriters relating to such registration and qualification and the preparation of the blue sky memorandum); (vii) any filings
required to be made with the Commission and FINRA (including filing fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such filings); (viii) all “road show” costs and expenses for the offering (regardless of
the form in which the “road show” is conducted), and all costs of the Company and Underwriters’ personnel,
including but not limited to, commercial or charter air travel, local hotel accommodations, transportation and other expenses;
(ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special
counsel) for the Company; (x) the costs and expenses of causing the Notes to be eligible for clearance and settlement through
DTC; (xi) out-of-pocket, accountable, bona fide expenses actually incurred by the Representative in connection with this
offering, including any fees and disbursements of legal counsel to the Underwriters, up to an aggregate amount not to exceed
$175,000, in each case to the extent permitted by FINRA regulations; (xii) the costs and expenses of background investigations;
(xiii) a structuring fee to be paid to the Representative at the Closing Date in an amount equal to 1.0% of the gross proceeds
of this offering ; (xiv) a backstop fee to be paid to the Representative at the Closing Date in an amount equal to $1.6
million, (or 2.0% of $80 million); and (xv) all other costs and expenses incident to the performance by the Company of its
obligations hereunder.
(l) Prior
to filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or
any Issuer Free Writing Prospectus, during the time when a Prospectus relating to the Notes (or in lieu thereof the notice referred to
in Rule 173(a) under the Securities Act) is required to be delivered under the Securities Act, the Company shall furnish a copy
thereof to the Representative and counsel for the Underwriters and obtain the consent of the Representative (which consent shall not be
unreasonably withheld or delayed) to the filing.
(m) During
the period referred to in paragraph (h) above, the Company shall file all such documents in the manner and within the time periods
required by the Exchange Act.
(n) The
Company shall apply the net proceeds of the sale of the Notes in accordance with its statements under the caption “Use of Proceeds”
in the Registration Statement, the Prospectus and the Disclosure Package.
(o) The
Company shall make generally available to its security holders as soon as practicable, but in any event not later than the end of
the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement, an earnings
statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the
Company, complying with the provisions of Rule 158 of the Securities Act) covering a period of 12 months beginning after the
effective date of the Registration Statement.
(p) The
Company will not, without the prior written consent of the Representative, offer, sell, contract to sell, pledge, or otherwise dispose
of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or otherwise) by the Company, directly or indirectly, including the
filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act) any
senior unsecured notes (other than the Notes sold to the Underwriters pursuant to this Agreement) or publicly announce an intention to
effect any such transaction for a period beginning on the date hereof and extending through the 90th day hereafter.
(q) The
Company will not take, directly or indirectly, without giving effect to activities by the Underwriter, as to which the Company makes no
representation, any action designed to or that would reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Notes.
(r) The
Company is not and, after giving effect to the offering and sale of the Notes, will not be an “investment company” as such
terms are defined in the Investment Company Act of 1940, as amended.
5. Conditions
to the Obligation of the Underwriters. The obligation of the Underwriters to purchase the Notes at the Closing Date or on each
Option Closing Date, as applicable, shall be subject to the accuracy of the representations and warranties on the part of the Company
contained herein as of the Initial Sale Time, the Closing Date and each Option Closing Date, to the accuracy of the statements of the
Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and
to the following additional conditions at the Closing Date or on each Option Closing Date, as applicable (except to the extent that any
such conditions may have been waived in writing by the Underwriters on or prior to such respective dates):
(a) The
Underwriters shall have received an opinion and negative assurance letter of Faegre Drinker Biddle & Reath LLP, counsel for the
Company, dated the Closing Date or the Option Closing Date, as applicable, covering such matters as the Underwriters shall reasonably
request, in each case in the form and substance satisfactory to the Underwriters.
(b) The
Underwriters shall have received an opinion and negative assurance letter of Morgan, Lewis & Bockius LLP, counsel for the Underwriters,
dated the Closing Date or the Option Closing Date, as applicable, covering such matters as the Underwriters shall reasonably request,
in each case in the form and substance satisfactory to the Underwriters.
(c) The
Company shall have furnished to the Underwriters certificates, signed by the Chief Executive Officer and the principal financial or accounting
officer of the Company, all dated the Closing Date or the Option Closing Date, as applicable, to the effect that the signers of such certificates
have carefully examined the Disclosure Package, Prospectus, any supplements or amendments to the Registration Statement and this Agreement
and that:
(i) The
representations and warranties of the Company in this Agreement are true and correct with the same effect as if made at the Closing Date
or the Option Closing Date, as applicable, and the Company has complied with all the agreements and satisfied all the conditions on its
part that are required to be performed or satisfied by it at or prior to the Closing Date or the Option Closing Date, as applicable;
(ii) No
stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no proceedings for that
purpose have been instituted or are pending or, to the best of their knowledge, threatened under the Securities Act;
(iii) They
have examined the Registration Statement, the Disclosure Package and the Prospectus and, in their opinion, the Disclosure Package, as
of the Initial Sale Time, the Registration Statement and the Prospectus, as of their dates and as of the Closing Date or the Option Closing
Date, as applicable, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material
fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since
the date of the most recent financial statements included in the Registration Statement, the Disclosure Package and the Prospectus, there
has been no Material Adverse Effect.
(d) The
Company shall have received from the Chief Executive Officers and Chief Financial Officer, at the Initial Sale Time, at the Closing Date
and at each Option Closing Date, a certificate confirming certain matters, including but are not limited to, the accuracy and validity
of certain financial information disclosed in the Company’s filings with the SEC, in form and substance heretofore approved by the
Representative (the “CFO Certificate”).
(e) The
Company shall have received from Deloitte & Touche LLP, at the Initial Sale Time, at the Closing Date and at each Option Closing
Date, an accountant’s “comfort letter” to the Underwriters delivered according to Statement of Auditing Standards No. 72
(or any successor bulletin), dated respectively as of the Initial Sale Time, the Closing Date and each Option Closing Date, in form and
substance heretofore approved by the Representative.
(f) The
Company shall have received from Mazars USA LLP, at the Initial Sale Time, at the Closing Date and at each Option Closing Date, an
accountant’s “comfort letter” to the underwriters delivered according to applicable U.S. or non-U.S. audit
standards, dated respectively as of the Initial Sale Time, the Closing Date and each Option Closing Date, in form and substance
heretofore approved by the Representative.
(g) No
amendment or supplement to the Registration Statement, the Prospectus or any document in the Disclosure Package shall have been filed
to which the Underwriters shall have objected in writing.
(h) Prior
to the Closing Date and each Option Closing Date: (i) no stop order suspending the effectiveness of the Registration Statement or
any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued, and no
proceedings for such purpose shall have been initiated or, to the Company’s knowledge, threatened, by the Commission, and no suspension
of the qualification of the Notes for offering or sale in any jurisdiction, or the initiation or, to the Company’s knowledge, threatening
of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission
shall have been complied with to the reasonable satisfaction of the Representative; (iii) the Registration Statement shall not contain
an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made,
not misleading.
(i) All
filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Date shall have been
made within the applicable time period prescribed for such filing by such Rule.
(j) The
Notes to be delivered on the Closing Date or the Option Closing Date, as the case may be, shall have been approved for listing on Nasdaq,
subject to notice of issuance.
(k) Subsequent
to the Initial Sale Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any supplement
thereto), the Prospectus and the Registration Statement (exclusive of any supplement thereto), there shall not have been (i) any
material adverse change specified in the letter or letters referred to in paragraph (c) of this Section 5 delivered at the Closing
Date or the Option Closing Date, as applicable, from the letter delivered at the Initial Sale Time or (ii) any material adverse change
in the business, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a whole, whether
or not arising from transactions in the ordinary course of business except as set forth in or contemplated in the Registration Statement,
the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the sole judgment of the Representative, makes it impractical or inadvisable to proceed with the offering
or delivery of the Notes as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement
thereto).
(l) Prior
to the Closing Date and each Option Closing Date, the Company shall have furnished to the Underwriters such further information, certificates
and documents as the Underwriters may reasonably request.
(m) Subsequent
to the Initial Sale Time, if there are any debt securities of the Company, there shall not have been any decrease in the rating of any
debt securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as
defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or
of a possible change in any such rating that does not indicate the direction of the possible change.
(n) The
Notes shall be eligible for clearance and settlement through DTC and at the Closing Date and each Option Closing Date the Notes shall
be cleared and settled through DTC.
(o) The
Company shall have executed and delivered the Sale and Purchase Agreement, dated September 22, 2021, relating to the acquisition
and purchase of all of the issued and outstanding equity interests of 123tv Invest GmbH and 123tv Holding GmbH and the related Vendor
Loan Agreement.
If any of the conditions specified
in this Section 5 shall not have been fulfilled when and as provided for in this Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the
Closing Date and each Option Closing Date, as applicable, by the Representative (unless any such conditions have been waived in writing
by the Representative on or prior to the Closing Date or the Option Closing Date, as applicable). Notice of such cancellation shall be
given to the Company in writing or by telephone or facsimile confirmed in writing.
The documents required to
be delivered by this Section 5 shall be delivered at the office of Morgan, Lewis & Bockius LLP, counsel for the Underwriters,
at 1400 Page Mill Road, Palo Alto, CA 94304, Attention: Albert Lung, at the Closing Date and each Option Closing Date.
6. Reimbursement
of Underwriters’ Expenses. If the sale of the Notes provided for herein is not consummated (i) because the Company
for any reason fails to tender the Notes for delivery to the Underwriters, (ii) because the Underwriters decline to purchase the
Notes for any reason permitted under this Agreement, (iii) because of any termination of this Agreement pursuant to Section 8
hereof or (iv) because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply
with any provision hereof, the Company, without duplication, will reimburse the Underwriters on demand for all out-of-pocket expenses
(including reasonable and documented fees and disbursements of counsel) that the Company is required to pay pursuant to Section 4(k) hereof.
7. Indemnification
and Contribution.
(a) The
Company agrees to indemnify, defend and hold harmless each Underwriter and any person who controls any Underwriter within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act, and the respective “affiliates” (within the
meaning of Rule 405 of the Securities Act), directors and officers of each Underwriter from and against any loss, expense, liability,
damage or claim (including the reasonable cost of investigation) which, jointly or severally, any such indemnified party may incur arising
under the Securities Act, the Exchange Act or otherwise, insofar as such loss, expense, liability, damage or claim arises out of or is
based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any
amendment), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary
in order to make the statements therein, not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (or any amendment or supplement thereto), any “issuer information” filed or required to be filed
pursuant to Rule 433(d) under the Securities Act, or in any materials or information provided to investors by, or with the approval
of, the Company in connection with the marketing of the offering of the Notes, including any roadshow or investor presentations made to
investors by the Company (the “Marketing Materials”) or, the Disclosure Package (including any amendments thereto),
or caused by any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims, damages or liabilities
arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating the Underwriters furnished to the Company in writing by such Underwriters expressly for use therein,
it being understood and agreed that the only such information furnished by the Underwriters consist of the information described as such
in subsection (b) below.
If any action is brought
against an Underwriter or controlling person in respect of which indemnity may be sought against the Company pursuant to the foregoing
paragraph, such Underwriter or controlling person shall promptly notify the Company in writing of the institution of such action, and
the Company shall assume the defense of such action, including the employment of counsel and payment of expenses; provided, however,
that any failure or delay to so notify the Company will not relieve the Company of any obligation hereunder, except to the extent that
its ability to defend is actually impaired by such failure or delay. Such Underwriter or controlling person shall have the right to employ
its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter or such
controlling person unless the employment of such counsel shall have been authorized in writing by the Company in connection with the
defense of such action, or the Company shall not have employed counsel to have charge of the defense of such action within a reasonable
time or such indemnified party or parties shall have reasonably concluded (based on the advice of counsel) that there may be defenses
available to it or them which are different from or additional to those available to the Company (in which case the Company shall not
have the right to direct the defense of such action on behalf of the indemnified party or parties or the named parties in any such proceeding
(including any impleaded parties included by the Company and the indemnified person)) or representation by both parties by the same counsel
would be inappropriate due to a conflict or potential differing interests between such parties, in any of which events such fees and
expenses shall be borne by the Company and paid as incurred (it being understood, however, that the Company shall not be liable for the
expenses of more than one separate firm of attorneys for the Underwriters or controlling persons in any one action or series of related
actions in the same jurisdiction (other than local counsel in any such jurisdiction) representing the indemnified parties who are parties
to such action). Anything in this paragraph to the contrary notwithstanding, the Company shall not be liable for any settlement of any
such claim or action effected without its written consent.
(b) Each
Underwriter agrees, severally and not jointly, to indemnify, defend and hold harmless the Company, the Company’s directors, the
Company’s officers, any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, and the successors and assigns of all of the foregoing persons, to the same extent as the indemnity set forth in
paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any
untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating
to such Underwriter furnished to the Company in writing by such Underwriter expressly for use in the Registration Statement, the Prospectus
(or any amendment or supplement thereto), any Marketing Materials, or the Disclosure Package (including any amendments thereto), it being
understood and agreed upon that the only such information furnished by the Underwriters consists of the following information in the Prospectus
furnished on behalf of the Underwriters: the information contained in the seventh paragraph in the section entitled “Underwriting,”
the information relating to stabilizing transactions contained under the caption “Price Stabilization, Short Positions” in
the section entitled “Underwriting” and the information relating to conflicts of interest contained under the caption “Additional
Relationships and Conflicts of Interest” in the section entitled “Underwriting.”
If any action is brought
against the Company or any such person in respect of which indemnity may be sought against any Underwriter pursuant to the foregoing
paragraph, the Company or such person shall promptly notify the Representative in writing of the institution of such action and the Representative,
on behalf of the Underwriters, shall assume the defense of such action, including the employment of counsel reasonably satisfactory to
the indemnified party and payment of any and all expenses related to such Proceeding or incurred in connection with such indemnified
party’s successful enforcement of this Section 7(b); provided, however, that any failure or delay to so notify the Representative
will not relieve the Underwriters of any obligation hereunder, except to the extent that its ability to defend is actually impaired by
such failure or delay. The Company or such person shall have the right to employ its own counsel in any such case, but the fees and expenses
of such counsel shall be at the expense of the Company or such person unless the employment of such counsel shall have been authorized
in writing by the Representative in connection with the defense of such action or the Representative shall not have employed counsel
to have charge of the defense of such action within a reasonable time or such indemnified party or parties shall have reasonably concluded
(based on the advice of counsel) that there may be defenses available to it or them which are different from or additional to those available
to the Underwriters (in which case the Representative shall not have the right to direct the defense of such action on behalf of the
indemnified party or parties or the named parties in any such proceeding (including any impleaded parties included by an Underwriter
and the indemnified person)), or representation by both parties by the same counsel would be inappropriate due to a conflict or potential
differing interests between such parties, in any of which events such fees and expenses shall be borne by such Underwriter and paid as
incurred (it being understood, however, that the Underwriters shall not be liable for the expenses of more than one separate firm of
attorneys in any one action or series of related actions in the same jurisdiction (other than local counsel in any such jurisdiction)
representing the indemnified parties who are parties to such action). Anything in this paragraph to the contrary notwithstanding, no
Underwriter shall be liable for any settlement of any such claim or action effected without the written consent of the Representative
and the Underwriters shall not, without the prior written consent of the indemnified party, effect any settlement, compromise or consent
to the entry of judgment in any pending or threatened action in respect of which any indemnified party is or could have been a party
and indemnity was or could have been sought hereunder by such indemnified party, unless such settlement, compromise or consent includes
an unconditional release of such indemnified party from all liability on claims that are the subject matter of such action and does not
include an admission of fault or culpability or a failure to act by or on behalf of such indemnified party.
(c) If
the indemnification provided for in this Section 7 is unavailable or insufficient to hold harmless an indemnified party under subsections
(a) and (b) of this Section 7 in respect of any losses, expenses, liabilities, damages or claims referred to therein, then
each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, expenses, liabilities, damages or claims (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company and the Underwriters from the offering of the Notes or (ii) if (but only
if) the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and of the Underwriters
in connection with the statements or omissions which resulted in such losses, expenses, liabilities, damages or claims, as well as any
other relevant equitable considerations. The relative benefits received by the Company and the Underwriters shall be deemed to be in the
same proportion as the total proceeds from the offering (net of underwriting discounts and commissions but before deducting expenses)
received by the Company bear to the underwriting discounts and commissions received by the Underwriters. The relative fault of the Company
and of the Underwriters shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement
of a material fact or omission or alleged omission relates to information supplied by the Company or by the Underwriters and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses, claims, damages and liabilities referred to above shall be deemed to include any legal or
other fees or expenses reasonably incurred by such party in connection with investigating or defending any claim or action.
(d) The
Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred to in subsection (c)(i) and, if applicable
(ii), above.
Notwithstanding the provisions
of this Section 7, no Underwriter shall be required to contribute any amount in excess of the underwriting discounts and commissions
applicable to the Notes purchased by such Underwriter pursuant to this Agreement. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 7 are several in proportion
to their respective underwriting commitments and not joint.
8. Termination.
(a) This
Agreement shall be subject to termination in the absolute discretion of the Underwriters, without liability on the part of the Underwriters
to the Company, by written notice given to the Company prior to delivery of and payment for the Notes, if at any time prior to such time
(i) there has been, since the Initial Sale Time, any material adverse change in the business, financial position, results of operations
or prospects of the Company and its Subsidiaries taken as a whole, which would, in the reasonable judgment of the Representative, make
it impractical to proceed with the sale or delivery of the Notes as contemplated by the Registration Statement, the Disclosure Package
or the Prospectus (exclusive of any supplement thereto), (ii) trading in securities generally on Nasdaq or the New York Stock Exchange
shall have been suspended or limited or minimum prices shall have been established on such exchange, (iii) a banking moratorium shall
have been declared either by federal or New York State authorities, (iv) a material disruption has occurred in securities settlement
or securities clearance in the United States or (v) there shall have occurred any outbreak or escalation of hostilities, declaration
by the United States of a national emergency or war, or other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Representative, impractical or inadvisable to proceed with the sale or delivery of the Notes as contemplated
by the Registration Statement, the Disclosure Package or the Prospectus (exclusive of any supplement thereto).
(b) If
any one or more Underwriters shall fail to purchase and pay for any of the Notes agreed to be purchased by such Underwriter
hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up and pay for the Notes which the defaulting Underwriter
or Underwriters agreed but failed to purchase; provided, however, that in the event that the aggregate principal amount of Notes
which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate amount of Notes set
forth in Schedule I hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Notes, and if such non-defaulting Underwriters do not purchase all the Notes, this Agreement will
terminate without liability to any non-defaulting Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Section 8(b), the Closing Date or the Option Closing Date, as applicable, shall be postponed for such period, not
exceeding seven Business Days, as the non-defaulting Underwriters and the Company shall agree in order that the required changes in
the Registration Statement or the Prospectus or in any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company or any non-defaulting Underwriter for
damages occasioned by its default hereunder.
9. Representations
and Indemnities to Survive. The respective agreements, representations, warranties, indemnities, contribution provisions and other
statements of each of the Company or its officers and of the Underwriters set forth in or made pursuant to this Agreement (including the
provisions of 6 and 7) will remain operative and in full force and effect, regardless of (i) any investigation made by or on behalf
of the Underwriters or any person controlling the Underwriters, the Company or their trustees, directors, managers, members, officers,
employees or agents or any person controlling the Company (control to be determined within the meaning of the Securities Act or the Exchange
Act), (ii) delivery and acceptance of any Notes and payment therefor hereunder and (iii) any termination or cancellation of
this Agreement.
10. Absence
of Fiduciary Relationship. The Company acknowledges and agrees that:
a. The
purchase and sale of the Notes pursuant to this Agreement is an arm’s length commercial transaction between the Company, on the
one hand, and the Underwriters and any affiliate through which they may be acting, on the other;
b. The
Underwriters are acting solely as agent in connection with the public offering of the Notes and in connection with each transaction contemplated
by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of
its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and the
Underwriters, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective
of whether or not the Underwriters have advised or is advising the Company on other matters, and the Underwriters have no obligation to
the Company with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
c. it
is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated
by this Agreement;
d. the
Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated by this Agreement
and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
e. it
is aware that the Underwriters and its affiliates are engaged in a broad range of transactions which may involve interests that differ
from those of the Company and the Underwriters have no obligation to disclose such interests and transactions to the Company by virtue
of any fiduciary, advisory or agency relationship or otherwise; and
f. it
waives, to the fullest extent permitted by law, any claims it may have against the Underwriters for breach of fiduciary duty or alleged
breach of fiduciary duty in connection with the sale of Notes under this Agreement and agrees that the Underwriters shall not have any
liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any person
asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect
of the Underwriters’ obligations under this Agreement and to keep information provided by the Company to the Underwriters and its
counsel confidential to the extent not otherwise publicly-available.
11. Integration.
This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters,
or any of them, with respect to the subject matter hereof.
12. Notices.
All notices or other communications required or permitted to be given by any party to any other party pursuant to the terms of this Agreement
shall be in writing, unless otherwise specified, and if sent to the Underwriters, shall be delivered to:
B. Riley Securities, Inc.
299 Park Avenue, 21st Floor
New York, NY 10171
Attention: General
Counsel
Telephone: (212) 457-9947
Email: dpalmadesso@brileyfin.com
with a copy to:
Morgan Lewis & Bockius LLP
1400 Page Mill Road
Palo Alto, CA 94304
Attention: Albert
Lung
Telephone: (650)
843-7263
Email: albert.lung@morganlewis.com
and if to the Company, shall be delivered
to:
iMedia Brands, Inc.
6740 Shady Oak Road
Eden
Prairie, MN 55344-3433
Attention: Chief Executive Officer
Telephone: (800) 938-9707
Email: tpeterman@imediabrands.com
with a copy to:
Faegre Drinker Biddle & Reath LLP
2200 Wells Fargo Center
90 South Seventh Street
Minneapolis,
MN 55402-3901
Attention: Jonathan R. Zimmerman
Telephone: (612) 766-8419
Email: jon.zimmerman@faegredrinker.com
Each party to this Agreement may change such address
for notices by sending to the parties to this Agreement written notice of a new address for such purpose. Each such notice or other communication
shall be deemed given (i) when delivered personally, by email, or by verifiable facsimile transmission on or before 4:30 p.m., New
York City time, on a Business Day or, if such day is not a Business Day, on the next succeeding Business Day, (ii) on the next Business
Day after timely delivery to a nationally-recognized overnight courier and (iii) on the Business Day actually received if deposited
in the U.S. mail (certified or registered mail, return receipt requested, postage prepaid). For purposes of this Agreement, “Business
Day” shall mean any day on which the Exchange and commercial banks in the City of New York are open for business.
13. Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers, trustees,
directors, managers, members, employees, agents and controlling persons referred to in Section 7 hereof, and no other person will
have any right or obligation hereunder.
14. Applicable
Law; Waiver of Jury Trial. This Agreement will be governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New York. The parties hereby waive any right to trial by jury in
any action, proceeding or counterclaim arising out of or relating to this Agreement or the transactions contemplated hereby.
15. Counterparts.
This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute
one and the same agreement.
16. Headings.
The section headings used herein are for convenience only and shall not affect the construction hereof.
17. Partial
Unenforceability. The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall not affect
the validity or enforceability of any other section, paragraph or provision hereof. If any section, paragraph or provision of this Agreement
is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor
changes) as are necessary to make it valid and enforceable.
18. Recognition
of the U.S. Special Resolution Regimes.
(a) In
the event that any Underwriter that is a Covered Entity (as defined below) becomes subject to a proceeding under a U.S. Special Resolution
Regime (as defined below), the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement,
will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and
any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In
the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate (as defined below) of such Underwriter becomes subject
to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined below) under this Agreement that may be exercised against
such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special
Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this Agreement,
(A) “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted
in accordance with, 12 U.S.C. § 1841(k); (B) “Covered Entity” means any of the following: (i) a “covered
entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank”
as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as
that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b); (C) “Default Right” has
the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable;
and (D) “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations
promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated
thereunder.
If the foregoing is in accordance
with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance
shall represent a binding agreement among the Company and the Underwriters.
[Signature Pages Follow]
|
|
Very truly yours,
|
|
|
|
|
|
IMEDIA BRANDS, INC.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Timothy A.
Peterman
|
|
|
|
Name:
|
Timothy A. Peterman
|
|
|
|
Title:
|
Chief Executive Officer
|
[Signature
Page to the Underwriting Agreement]
|
Accepted and agreed to as of the date first above written, on behalf of themselves and the Underwriters named herein:
|
|
|
|
|
|
B. Riley Securities, Inc.
|
|
|
|
|
|
|
|
|
By:
|
/s/ Patrice McNicoll
|
|
|
|
Name:
|
Patrice McNicoll
|
|
|
|
Title:
|
Co-Head of Investment Banking
|
|
[Signature
Page to the Underwriting Agreement]
Schedule I
|
Underwriters
|
|
Aggregate
Principal
Amount of
Firm Notes to
Be Purchased
|
|
|
Aggregate
Principal
Amount of
Option Notes to
Be Purchased
|
|
|
B. Riley Securities, Inc.
|
|
$
|
30,187,500
|
|
|
$
|
2,012,500
|
|
|
D.A. Davidson & Co.
|
|
$
|
17,625,000
|
|
|
$
|
1,175,000
|
|
|
Ladenburg Thalmann & Co. Inc.
|
|
$
|
10,687,500
|
|
|
$
|
712,500
|
|
|
InspereX LLC
|
|
$
|
4,687,500
|
|
|
$
|
312,500
|
|
|
Aegis Capital Corp.
|
|
$
|
2,250,000
|
|
|
$
|
150,000
|
|
|
Alexander Capital L.P.
|
|
$
|
937,500
|
|
|
$
|
62,500
|
|
|
Newbridge Securities Corporation
|
|
$
|
1,875,000
|
|
|
$
|
125,000
|
|
|
Revere Securities LLC
|
|
$
|
4,687,500
|
|
|
$
|
312,500
|
|
|
B.C. Ziegler & Company
|
|
$
|
2,062,500
|
|
|
$
|
137,500
|
|
|
Total
|
|
$
|
75,000,000
|
|
|
$
|
5,000,000
|
|
Schedule II
OTHER ISSUER WRITTEN COMMUNICATIONS
None.
Exhibit A
Final Term Sheet
See attached.
Exhibit 4.1
IMEDIA BRANDS, INC.
TO
U.S. BANK NATIONAL
ASSOCIATION
Trustee
INDENTURE
Dated as of September 28, 2021
Senior Debt Securities
iMedia Brands, Inc.
Reconciliation and tie between Trust Indenture
Act of 1939 and
Indenture, dated as of September 28, 2021
|
Trust Indenture
Act Section
|
Indenture
Section
|
|
|
|
|
§310(a)(1)
|
609
|
|
(a)(2)
|
609
|
|
(a)(3)
|
Not Applicable
|
|
(a)(4)
|
Not Applicable
|
|
(a)(5)
|
609
|
|
(b)
|
608, 610
|
|
§311(a)
|
613
|
|
(b)
|
613
|
|
§312(a)
|
701, 702(a)
|
|
(b)
|
702(b)
|
|
(c)
|
702(c)
|
|
§313(a)
|
703(a)
|
|
(b)
|
703(a)
|
|
(c)
|
703(a)
|
|
(d)
|
703(b)
|
|
§314(a)
|
704, 1005
|
|
(b)
|
Not Applicable
|
|
(c)(1)
|
102
|
|
(c)(2)
|
102
|
|
(c)(3)
|
Not Applicable
|
|
(d)
|
Not Applicable
|
|
(e)
|
102
|
|
§315(a)
|
601
|
|
(b)
|
602
|
|
(c)
|
601
|
|
(d)
|
601
|
|
(e)
|
514
|
|
§316(a)
|
101
|
|
(a)(1)(A)
|
104(h), 502, 512
|
|
(a)(1)(B)
|
104(h), 513
|
|
(a)(2)
|
Not Applicable
|
|
(b)
|
508
|
|
(c)
|
104(h)
|
|
§317(a)(1)
|
503
|
|
(a)(2)
|
504
|
|
(b)
|
1003
|
|
§318(a)
|
107
|
|
(c)
|
107
|
Note: This reconciliation and tie shall
not, for any purpose, be deemed to be part of the Indenture.
TABLE OF CONTENTS
|
|
Page
|
|
|
|
|
ARTICLE ONE Definitions and Other Provisions of General Application
|
1
|
|
|
|
|
Section 101. Definitions
|
1
|
|
Act
|
2
|
|
Affiliate
|
2
|
|
Bearer Security
|
2
|
|
Board of Directors
|
2
|
|
Board Resolution
|
2
|
|
Business Day
|
2
|
|
Clearstream
|
2
|
|
Commission
|
2
|
|
Company
|
3
|
|
Company Request and Company
Order
|
3
|
|
corporation
|
3
|
|
coupon
|
3
|
|
Debt Securities
|
3
|
|
Defaulted Interest
|
3
|
|
Depositary
|
3
|
|
Designated Currency
|
3
|
|
Dollar or $
|
3
|
|
Eligible Instruments
|
3
|
|
Euro
|
3
|
|
Euroclear
|
4
|
|
Event of Default
|
4
|
|
Exchange Act
|
4
|
|
Exchange Rate
|
4
|
|
Exchange Rate Agent
|
4
|
|
Exchange Rate Officer’s
Certificate
|
4
|
|
Foreign Currency
|
4
|
|
Global Exchange Agent
|
4
|
|
Global Exchange Date
|
4
|
|
Global Security
|
4
|
|
Holder
|
4
|
|
Indenture
|
4
|
|
interest
|
4
|
|
Interest Payment Date
|
4
|
|
Maturity
|
4
|
|
Officers’ Certificate
|
5
|
|
Opinion of Counsel
|
5
|
|
Original Issue Discount
Security
|
5
|
|
Outstanding
|
5
|
|
Paying Agent
|
5
|
|
Person
|
5
|
|
Place of
Payment
|
5
|
|
Predecessor Security
|
5
|
|
Redemption Date
|
6
|
|
Redemption Price
|
6
|
|
Registered Security
|
6
|
|
Regular Record Date
|
6
|
|
Remarketing Entity
|
6
|
|
Repayment Date
|
6
|
|
Repayment Price
|
6
|
|
Responsible Officer
|
6
|
|
Security Register
|
6
|
|
Special Record Date
|
6
|
|
Stated Maturity
|
6
|
|
Trust Indenture Act
|
7
|
|
Trustee
|
7
|
|
United States
|
7
|
|
United States Alien
|
7
|
|
U.S. Government Obligations
|
7
|
|
Section 102.
|
Compliance Certificates and Opinions
|
7
|
|
Section 103.
|
Form of Documents Delivered to Trustee
|
8
|
|
Section 104.
|
Acts of Holders
|
8
|
|
Section 105.
|
Notices,etc., to Trustee and Company
|
10
|
|
Section 106.
|
Notice to Holders; Waiver
|
10
|
|
Section 107.
|
Conflict with Trust Indenture Act
|
11
|
|
Section 108.
|
Effect of Headings and Table of Contents
|
11
|
|
Section 109.
|
Successors and Assigns
|
11
|
|
Section 110.
|
Separability Clause
|
11
|
|
Section 111.
|
Benefits of Indenture
|
11
|
|
Section 112.
|
Governing Law
|
12
|
|
Section 113.
|
Legal Holidays
|
12
|
|
Section 114.
|
Counterparts
|
12
|
|
Section 115.
|
Exemption from Individual Liability
|
12
|
|
|
|
|
ARTICLE TWO
Debt Security Forms
|
13
|
|
|
|
|
Section 201.
|
Forms Generally
|
13
|
|
Section 202.
|
Form of Trustee’s Certificate of Authentication
|
14
|
|
Section 203.
|
Debt Securities in Global Form
|
14
|
|
|
|
|
ARTICLE THREE The
Debt Securities
|
15
|
|
|
|
|
Section 301.
|
Amount Unlimited; Issuance in Series
|
15
|
|
Section 302.
|
Denominations
|
18
|
|
Section 303.
|
Execution, Authentication, Delivery and Dating
|
18
|
|
Section 304.
|
Temporary Debt Securities
|
21
|
|
Section 305.
|
Registration; Registration of Transfer and Exchange
|
24
|
|
Section 306.
|
Mutilated, Destroyed, Lost and Stolen Debt Securities
|
27
|
|
Section 307.
|
Payment of Interest; Interest Rights Preserved
|
28
|
|
Section 308.
|
Persons Deemed Owners
|
30
|
|
Section 309.
|
Cancellation
|
31
|
|
Section 310.
|
Computation of Interest
|
31
|
|
Section 311.
|
Certification by a Person Entitled to Delivery of a Bearer Security
|
31
|
|
Section 312.
|
Judgments
|
31
|
|
ARTICLE FOUR
Satisfaction and Discharge
|
32
|
|
|
|
|
Section 401.
|
Satisfaction and Discharge of Indenture
|
32
|
|
Section 402.
|
Application of Trust Money and Eligible Instruments
|
34
|
|
Section 403.
|
Satisfaction, Discharge and Defeasance of Debt Securities of any Series
|
34
|
|
|
|
|
ARTICLE FIVE Remedies
|
37
|
|
|
|
|
Section 501.
|
Events of Default
|
37
|
|
Section 502.
|
Acceleration of Maturity; Rescission and Annulment
|
38
|
|
Section 503.
|
Collection of Indebtedness and Suits for Enforcement by Trustee
|
39
|
|
Section 504.
|
Trustee May File Proofs of Claim
|
40
|
|
Section 505.
|
Trustee May Enforce Claims without Possession of Debt Securities or Coupons
|
41
|
|
Section 506.
|
Application of Money Collected
|
41
|
|
Section 507.
|
Limitation on Suits
|
42
|
|
Section 508.
|
Unconditional Right of Holders to Receive Principal, Premium and Interest
|
42
|
|
Section 509.
|
Restoration of Rights and Remedies
|
43
|
|
Section 510.
|
Rights and Remedies Cumulative
|
43
|
|
Section 511.
|
Delay or Omission Not Waiver
|
43
|
|
Section 512.
|
Control by Holders of Debt Securities
|
43
|
|
Section 513.
|
Waiver of Past Defaults
|
43
|
|
Section 514.
|
Undertaking for Costs
|
44
|
|
Section 515.
|
Waiver of Stay or Extension Laws
|
44
|
|
|
|
|
ARTICLE SIX The
Trustee
|
44
|
|
|
|
|
Section 601.
|
Certain Duties and Responsibilities
|
44
|
|
Section 602.
|
Notice of Default
|
45
|
|
Section 603.
|
Certain Rights of Trustee
|
45
|
|
Section 604.
|
Not Responsible for Recitals or Issuance of Debt Securities
|
47
|
|
Section 605.
|
May Hold Debt Securities or Coupons
|
47
|
|
Section 606.
|
Money Held in Trust
|
47
|
|
Section 607.
|
Compensation and Reimbursement
|
47
|
|
Section 608.
|
Disqualification; Conflicting Interests
|
48
|
|
Section 609.
|
Corporate Trustee Required; Eligibility
|
48
|
|
Section 610.
|
Resignation and Removal; Appointment of Successor
|
48
|
|
Section 611.
|
Acceptance of Appointment by Successor
|
49
|
|
Section 612.
|
Merger, Conversion, Consolidation or Succession to Business
|
50
|
|
Section 613.
|
Preferential Collection of Claims Against Company
|
50
|
|
Section 614.
|
Authenticating Agent
|
51
|
|
|
|
|
ARTICLE SEVEN Holders’
Lists and Reports By Trustee and Company
|
52
|
|
|
|
|
Section 701.
|
Company to Furnish Trustee Names and Addresses of Holders
|
52
|
|
Section 702.
|
Preservation of Information; Communications to Holders
|
53
|
|
Section 703.
|
Reports by Trustee
|
53
|
|
Section 704.
|
Reports by Company
|
53
|
|
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
|
54
|
|
|
|
|
Section 801.
|
Company May Consolidate,etc. Only on Certain Terms
|
54
|
|
Section 802.
|
Successor Corporation Substituted
|
54
|
|
|
|
|
ARTICLE NINE Supplemental
Indentures
|
55
|
|
|
|
|
Section 901.
|
Supplemental Indentures without Consent of Holders
|
55
|
|
Section 902.
|
Supplemental Indentures with Consent of Holders
|
56
|
|
Section 903.
|
Execution of Supplemental Indentures
|
57
|
|
Section 904.
|
Effect of Supplemental Indentures
|
58
|
|
Section 905.
|
Conformity with Trust Indenture Act
|
58
|
|
Section 906.
|
Reference in Debt Securities to Supplemental Indentures
|
58
|
|
|
|
|
ARTICLE TEN Covenants
|
58
|
|
|
|
|
Section 1001.
|
Payment of Principal, Premium and Interest
|
58
|
|
Section 1002.
|
Maintenance of Office or Agency
|
59
|
|
Section 1003.
|
Money for Debt Securities Payments to Be Held in Trust
|
60
|
|
Section 1004.
|
Payment of Additional Amounts
|
61
|
|
Section 1005.
|
Officers’ Certificate as to Default
|
62
|
|
Section 1006.
|
Waiver of Certain Covenants
|
62
|
|
|
|
|
ARTICLE ELEVEN Redemption
of Debt Securities
|
62
|
|
|
|
|
Section 1101.
|
Applicability of Article
|
62
|
|
Section 1102.
|
Election to Redeem; Notice to Trustee
|
63
|
|
Section 1103.
|
Selection by Trustee of Debt Securities to be Redeemed
|
63
|
|
Section 1104.
|
Notice of Redemption
|
63
|
|
Section 1105.
|
Deposit of Redemption Price
|
64
|
|
Section 1106.
|
Debt Securities Payable on Redemption Date
|
65
|
|
Section 1107.
|
Debt Securities Redeemed in Part
|
65
|
|
|
|
|
ARTICLE TWELVE Sinking
Funds
|
66
|
|
|
|
|
Section 1201.
|
Applicability of Article
|
66
|
|
Section 1202.
|
Satisfaction of Sinking Fund Payments with Debt Securities
|
66
|
|
Section 1203.
|
Redemption of Debt Securities for Sinking Fund
|
67
|
|
|
|
|
ARTICLE THIRTEEN
Repayment at the Option of Holders
|
67
|
|
|
|
|
Section 1301.
|
Applicability of Article
|
67
|
|
Section 1302.
|
Repayment of Debt Securities
|
67
|
|
Section 1303.
|
Exercise of Option; Notice
|
67
|
|
Section 1304.
|
Election of Repayment by Remarketing Entities
|
69
|
|
Section 1305.
|
Securities Payable on the Repayment Date
|
69
|
|
ARTICLE FOURTEEN
Meetings of Holders of Debt Securities
|
69
|
|
|
|
|
Section 1401.
|
Purposes for Which Meetings May Be Called
|
69
|
|
Section 1402.
|
Call, Notice and Place of Meetings
|
69
|
|
Section 1403.
|
Persons Entitled to Vote at Meetings
|
70
|
|
Section 1404.
|
Quorum; Action
|
70
|
|
Section 1405.
|
Determination of Voting Rights; Conduct and Adjournment of Meetings
|
71
|
|
Section 1406.
|
Counting Votes and Recording Action of Meetings
|
72
|
|
|
|
|
ARTICLE FIFTEEN
Defeasance
|
72
|
|
|
|
|
Section 1501.
|
Termination of Company’s Obligations
|
72
|
|
Section 1502.
|
Repayment to Company
|
73
|
|
Section 1503.
|
Indemnity for Eligible Instruments
|
74
|
Exhibit A-1
Exhibit A-2
Exhibit B
INDENTURE (the “Indenture”)
dated as of September 28, 2021, between IMEDIA BRANDS, INC., a Minnesota corporation (hereinafter called the “Company”),
having its principal place of business at 6740 Shady Oak Road, Eden Prairie, MN and U.S. BANK NATIONAL ASSOCIATION, (hereinafter called
the “Trustee”), a national banking association duly organized and validly existing under the laws of the United States of
America having its Corporate Trust Office at 60 Livingston Avenue, St. Paul, MN 55107.
RECITALS OF THE COMPANY
The Company has duly authorized
the execution and delivery of this Indenture to provide for the issuance from time to time of its debentures, notes, bonds and other
evidences of indebtedness (herein called the “Debt Securities”).
All things necessary have been
done to make this Indenture a valid agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE
WITNESSETH:
For and in consideration of
the premises and the purchase of the Debt Securities of any series created and issued on or after the date hereof by the Holders thereof,
it is mutually covenanted and agreed for the benefit of all Holders of such Debt Securities or of any such series, as follows:
ARTICLE ONE
Definitions and Other Provisions of General
Application
Section 101. Definitions.
For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(1)
the terms defined in this Article have the meanings assigned to them in this Article,
and include the plural as well as the singular;
(2) all
other terms used herein which are defined in the Trust Indenture Act or by Commission rule or regulation under the Trust Indenture
Act, either directly or by reference therein, as in force at the date as of which this instrument was executed, except as provided in
Section 905, have the meanings assigned to them therein;
(3) all
accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles,
and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any
computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States at the
date of such computation;
(4) the
words “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; and
(5) unless
otherwise provided in this Indenture or in any Debt Security, the words “execute,” “execution,” “signed,”
and “signature” and words of similar import used in or related to any document to be signed in connection with this Indenture,
any Debt Security or any of the transactions contemplated hereby (including amendments, waivers, consents and other modifications) shall
be deemed to include electronic signatures and the keeping of records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature in ink or the use of a paper-based recordkeeping system, as applicable, to
the fullest extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce
Act, the New York State Electronic Signatures and Records Act, and any other similar state laws based on the Uniform Electronic Transactions
Act, provided that, notwithstanding anything herein to the contrary, the Trustee is not obligated to agree to accept electronic signatures
in any form or in any format unless expressly agreed to by the Trustee pursuant to procedures approved by the Trustee.
Certain terms, used principally
in Article Six, are defined in that Article.
“Act” when used
with respect to any Holder has the meaning specified in Section 104.
“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.
“Bearer Security”
means any Debt Security established pursuant to Section 201 which is payable to bearer including, without limitation, unless the
context otherwise indicates, a Debt Security in global bearer form.
“Board of Directors”
means either the board of directors of the Company, or the executive or any other committee of that board duly authorized to act in respect
hereof.
“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, and delivered to the Trustee. Where any provision
of this Indenture refers to action to be taken pursuant to a Board Resolution (including the establishment of any series of the Debt
Securities and the forms and terms thereof), such action may be taken by any committee of the Board of the Company or any officer or
employee of the Company authorized to take such action by a Board Resolution.
“Business Day”,
when used with respect to any Place of Payment, means any day which is not a Saturday or Sunday and which is not a legal holiday or a
day on which banking institutions or trust companies in that Place of Payment are authorized or obligated by law or executive order to
close.
“Clearstream” means
Clearstream Banking S.A.
“Commission” means
the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or if at any time after the
execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties on such date.
“Company” means
the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“Company Request”
and “Company Order” mean, respectively, except as otherwise provided in this Indenture, a written request or order signed
in the name of the Company by the Chairman of the Board, a Vice Chairman of the Board, the Chief Executive Officer, the President or
a Vice President (any references to a Vice President of the Company herein shall be deemed to include any Vice President of the Company
whether or not designated by a number or word or words added before or after the title “Vice President”), the Treasurer,
an Assistant Treasurer, the Controller, an Assistant Controller, Secretary or an Assistant Secretary of the Company or by another officer
of the Company duly authorized to sign by a Board Resolution, 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 original execution of this Indenture is located at 60 Livingston Avenue, St. Paul, MN 55107.
The term “corporation”
includes corporations, associations, companies and business trusts.
The term “coupon”
means any interest coupon appertaining to a Bearer Security.
“Debt Securities”
has the meaning stated in the first recital of this Indenture and more particularly means any Debt Securities authenticated and delivered
under this Indenture.
“Defaulted Interest”
has the meaning specified in Section 307.
“Depositary” means,
with respect to the Debt Securities of any series issuable or issued in the form of a Global Security, the Person designated as Depositary
by the Company pursuant to Section 301 until a successor Depositary shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter “Depositary” shall mean or include each person who is then a Depositary hereunder, and
if at any time there is more than one such Person, “Depositary” as used with respect to the Debt Securities of any such series
shall mean the Depositary with respect to the Debt Securities of that series.
“Designated Currency”
has the meaning specified in Section 312.
“Dollar” or “$”
means the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private
debts.
“Eligible Instruments”
means monetary assets, money market instruments and securities that are payable in Dollars only and essentially risk free as to collection
of principal and interest, including U.S. Government Obligations.
“Euro” means the
single currency of the European Monetary Union as defined under EC Regulation 1103/97 adopted under Article 235 of the EU Treaty
and under EC Regulation 974/98 adopted under Article 109l(4) of the EU Treaty or under any successor European legislation from
time to time.
“Euroclear” means
Euroclear Bank S.A./N.V., as operator of the Euroclear System.
“Event of Default”
has the meaning specified in Section 501.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“Exchange Rate”
shall have the meaning specified as contemplated in Section 301.
“Exchange Rate Agent”
shall have the meaning specified as contemplated in Section 301.
“Exchange Rate Officer’s
Certificate”, with respect to any date for the payment of principal of (and premium, if any) and interest on any series of Debt
Securities, means a certificate setting forth the applicable Exchange Rate and the amounts payable in Dollars and Foreign Currencies
in respect of the principal of (and premium, if any) and interest on Debt Securities denominated in Euro, any other composite currency
or Foreign Currency, and signed by the Chairman of the Board, a Vice Chairman of the Board, the Chief Executive Officer, the President,
a Vice President, the Treasurer or any Assistant Treasurer of the Company or the Exchange Rate Agent appointed pursuant to Section 301,
and delivered to the Trustee.
“Foreign Currency”
means a currency issued by the government of any country other than the United States of America.
“Global Exchange Agent”
has the meaning specified in Section 304.
“Global Exchange Date”
has the meaning specified in Section 304.
“Global Security”
means a Debt Security issued to evidence all or part of a series of Debt Securities in accordance with Section 303.
“Holder”, with
respect to a Registered Security, means a Person in whose name such Registered Security is registered in the Security Register and, with
respect to a Bearer Security or a coupon, means the bearer thereof.
“Indenture” means
this instrument as originally executed or as it may from time to time be supplemented, amended or restated by or pursuant to one or more
indentures supplemental hereto entered into pursuant to the applicable provisions hereof and, unless the context otherwise requires,
shall include the terms of a particular series of Debt Securities established as contemplated by Section 301.
The term “interest”,
when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable
after Maturity.
“Interest Payment Date”,
with respect to any Debt Security, means the Stated Maturity of an installment of interest on such Debt Security.
“Maturity”, when
used with respect to any Debt Security, means the date on which the principal of such Debt Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, repayment at the option of
the Holder or otherwise.
“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 Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, 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 (except as otherwise expressly provided in this Indenture) be an employee of or counsel for
the Company, or who may be other counsel, which is delivered to the Trustee.
“Original Issue Discount
Security” means any Debt Security which provides for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
“Outstanding”,
when used with respect to Debt Securities means, as of the date of determination, all Debt Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Debt
Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(ii) Debt
Securities or portions thereof for whose payment or redemption money or Eligible Instruments 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 shall act as its own Paying Agent) for the Holders of such Debt Securities and any coupons appertaining thereto; provided,
however, that if such Debt 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) Debt
Securities in exchange for or in lieu of which other Debt Securities have been authenticated and delivered, or which have been paid,
pursuant to this Indenture;
provided,
however, that in determining whether the Holders of the requisite principal amount of Debt Securities Outstanding have given
any request, demand, authorization, direction, notice, consent or waiver hereunder, Debt Securities owned by the Company or any other
obligor upon the Debt Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying upon such request, demand, authorization, direction, notice,
consent or waiver, only Debt Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded.
Debt Securities so owned which 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 Debt Securities and that the pledgee is not the Company or any
other obligor upon the Debt Securities or any Affiliate of the Company or of such other obligor.
“Paying Agent”
means any Person authorized by the Company to pay the principal of (and premium, if any) or interest on any Debt Securities on behalf
of the Company.
“Person” means
any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
“Place of Payment”,
when used with respect to the Debt Securities of any series means any place where the principal of (and premium, if any) and interest
on the Debt Securities of that series are payable as specified as contemplated by Section 301.
“Predecessor Security”
of any particular Debt Security means every previous Debt Security evidencing all or a portion of the same debt as that evidenced by
such particular Debt Security; and, for the purposes of this definition, any Debt Security authenticated and delivered under Section 306
in lieu of a lost, destroyed or stolen Debt Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Debt
Security.
“Redemption Date”,
when used with respect to any Debt Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price”,
when used with respect to any Debt Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
“Registered Security”
means any Debt Security in the form of Registered Securities established pursuant to Section 201 which is registered in the Security
Register.
“Regular Record Date”
for the interest payable on any Interest Payment Date on the Registered Securities of any series means the date specified for that purpose
as contemplated by Section 301.
“Remarketing Entity”,
when used with respect to Debt Securities of any series which are repayable at the option of the Holders thereof before their Stated
Maturity, means any person designated by the Company to purchase any such Debt Securities.
“Repayment Date”,
when used with respect to any Debt Security to be repaid upon exercise of an option for repayment by the Holder, means the date fixed
for such repayment pursuant to this Indenture.
“Repayment Price”,
when used with respect to any Debt Security to be repaid upon exercise of an option for repayment by the Holder, means the price at which
it is to be repaid pursuant to this Indenture.
“Responsible Officer”
when used with respect to the Trustee, means any vice president, any assistant vice president, any senior trust officer or assistant
trust officer, any trust officer, or any other officer associated with the corporate trust department of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of such person’s knowledge of and familiarity with the particular
subject.
“Security Register”
and “Security Registrar” have the respective meanings specified in Section 305.
“Special Record Date”
for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 307.
“Stated Maturity,”
when used with respect to any Debt Security or any installment of interest thereon, means the date specified in such Debt Security or
a coupon representing such installment of interest as the fixed date on which the principal of such Debt Security or such installment
is due and payable.
“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended, as in force at the date as of which this instrument was executed, except as provided
in Section 905.
“Trustee” means
the Person named as the “Trustee” in the first paragraph of this instrument 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, and if at any time there is more than one such Person, “Trustee” as used with respect to the Debt
Securities of any series shall mean the Trustee with respect to Debt Securities of that series.
“United States”
means the United States of America (including the District of Columbia) and its possessions.
“United States Alien”
means any Person who, for United States Federal income tax purposes, is a foreign corporation, a non-resident alien individual, a
non-resident alien fiduciary of a foreign estate or trust, or a foreign partnership one or more of the members of which is, for United
States Federal income tax purposes, a foreign corporation, a non-resident alien individual or a non-resident alien fiduciary
of a foreign estate or trust.
“U.S. Government Obligations”
means direct obligations of the United States for the payment of which its full faith and credit is pledged, or obligations of a person
controlled or supervised by and acting as an agency or instrumentality of the United States the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States, and shall also include a depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S. Government Obligation held by such custodian for the account
of the holder of such depository receipt, 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 depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of principal of or interest on the U.S. Government Obligation evidenced by such depository
receipt.
Section 102. Compliance
Certificates and Opinions.
Upon any application or request
by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee, if
so requested by the Trustee, an Officers’ Certificate stating that all conditions 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, if any, have been complied with, except that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(1) a
statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating
thereto;
(2) a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a
statement that, in the opinion of each 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
(4) a
statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 103. Form of
Documents Delivered to Trustee.
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.
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 in the exercise of reasonable care should know, that the certificate or opinion or representations
with respect to the 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 in the exercise of reasonable care should know, that the certificate or opinions or representations with respect to such matters
are erroneous.
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.
Section 104. Acts
of Holders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given 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 duly appointed in writing. If Debt Securities of a series are issuable in whole or in part as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders
may, alternatively, be embodied in and evidenced by the record of Holders of Debt Securities voting in favor thereof, either in person
or by proxies duly appointed in writing, at any meeting of Holders of Debt Securities duly called and held in accordance with the provisions
of Article Fourteen, or a combination of such instruments and any such record. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments or record or both are delivered to the Trustee, and, where it is hereby
expressly required, to the Company. Such instrument or instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments and so voting
at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or the holding by any Person
of a Debt Security, shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section. The record of any meeting of Holders of Debt Securities shall
be proved in the manner provided in Section 1406.
(b) The
fact and date of the execution by any Person of any such instrument or writing may be proved in any manner which the Trustee deems sufficient.
(c) The
ownership of Registered Securities shall be proved by the Security Register.
(d) The
principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory, showing that at the date therein mentioned such Person
had on deposit with such depositary, or exhibited to it, the Bearer Securities in the amount and with the serial numbers therein described;
or such facts may be proved by the certificate or affidavit of the Person holding such Bearer Securities, if such certificate
or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later date issued in respect of the same Bearer Security is produced,
or (2) such Bearer Security is produced to the Trustee by some other person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer Outstanding.
(e) The
fact and date of execution of any such instrument or writing, the authority of the Person executing the same and the principal amount
and serial numbers of Bearer Securities held by the Person so executing such instrument or writing and the date of holding the same may
also be proved in any other manner which the Trustee deems sufficient; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(f) Any
request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Debt Security shall bind every future
holder of the same Debt Security and the Holder of every Debt Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, suffered or omitted by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Debt Security.
(g) For
purposes of determining the principal amount of Outstanding Debt Securities of any series the Holders of which are required, requested
or permitted to give any request, demand, authorization, direction, notice, consent, waiver or take any other Act under this Indenture,
(i) each Original Issue Discount Security shall be deemed to have the principal amount determined by the Trustee that could be declared
to be due and payable pursuant to the terms of such Original Issue Discount Security as of the date there is delivered to the Trustee
and, where it is hereby expressly required, to the Company, such Act by Holders of the required aggregate principal amount of the Outstanding
Debt Securities of such series and (ii) each Debt Security denominated in a Foreign Currency or composite currency shall be deemed
to have the principal amount determined by the Exchange Rate Agent by converting the principal amount of such Debt Security in the currency
in which such Debt Security is denominated into Dollars at the Exchange Rate as of the date such Act is delivered to the Trustee and,
where it is hereby expressly required, to the Company, by Holders of the required aggregate principal amount of the Outstanding Debt
Securities of such series (or, if there is no such rate on such date, such rate on the date determined as specified as contemplated in
Section 301).
(h) The
Company may set a record date for purposes of determining the identity of Holders of Debt Securities of any series entitled to vote or
consent to any action by vote or consent authorized or permitted by Section 512 or Section 513. Such record date shall be the
later of 30 days prior to the first solicitation of such consent or the date of the most recent list of Holders of such Debt Securities
furnished to the Trustee pursuant to Section 701 prior to such solicitation.
Section 105. Notices, etc.,
to Trustee and Company.
Any request, demand, authorization,
direction, notice, consent, waiver or other Act of Holders or other document provided or permitted by this Indenture to be made upon,
given or furnished to, or filed with,
(1) the
Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided),
if made, given, furnished or filed in writing (which may be via original or facsimile) to or with the Trustee at its Corporate Trust
Office and which shall be deemed delivered when actually received by a Responsible Officer of the Trustee, or
(2) the
Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company addressed to the attention of its Secretary at the address
of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to
the Trustee by the Company.
The Trustee agrees to accept
and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar
unsecured electronic methods; provided, however, that (a) the party providing such electronic instructions or directions,
subsequent to the transmission thereof, shall provide the originally executed instructions or directions to the Trustee in a timely manner
and (b) such originally executed instructions or directions shall be signed by an authorized representative of the party providing
such instructions or directions. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from
the Trustee’s reliance upon and compliance with such instructions or directions notwithstanding such instructions or directions
conflict or are inconsistent with a subsequent written instruction or direction or if the subsequent written instruction or direction
is never received. The party providing instructions or directions by unsecured e-mail, facsimile transmission or other similar unsecured
electronic methods, as aforesaid, agrees to assume all risks arising out of the use of such electronic methods to submit instructions
and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk
of interception and misuse by third parties.
Section 106. Notice
to Holders; Waiver.
Except as otherwise expressly
provided herein, where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given to Holders
of Registered Securities if in writing and mailed, first-class postage prepaid (or, with respect to Global Securities, delivered
in accordance with the Depositary’s applicable procedures), to each Holder of a Registered Security affected by such event, at
such Holder’s address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice.
In any case where notice to
Holders of Registered Securities is to be given by mail, (a) 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 of Registered Securities
when said notice is required to be given pursuant to any provision of this Indenture or of the Debt Securities, 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 and (b) neither the
failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered Securities.
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.
Any request, demand, authorization,
direction, notice, consent, election, waiver or other Act required or permitted under this Indenture shall be in the English language.
Notwithstanding any other provision
of this Indenture or any Debt Security, where this Indenture or any Debt Security provides for notice of any event or any other communication
(including any notice of redemption or repurchase) to a Holder of a Global Security (whether by mail or otherwise), such notice shall
be sufficiently given if given to the Depositary (or its designee) pursuant to the standing instructions from the Depositary or its designee,
including by electronic mail in accordance with accepted practices at the Depositary.
Section 107. Conflict
with Trust Indenture Act.
If any provision hereof limits,
qualifies or conflicts with another provision hereof which is required to be included in this Indenture by any of the provisions of the
Trust Indenture Act, such required provision shall control.
Section 108. 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 hereof.
Section 109. Successors
and Assigns.
All covenants and agreements
in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
Section 110. Separability
Clause.
In case any provision in this
Indenture or in the Debt Securities or any coupons 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.
Section 111. Benefits
of Indenture.
Nothing in this Indenture or
in the Debt Securities or any coupons, express or implied, shall give to any Person, other than the parties hereto and their successors
hereunder, any Paying Agent and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 112. Governing
Law.
This Indenture and the Debt
Securities and any coupons shall be governed by and construed in accordance with the laws of the State of New York.
Section 113. Legal
Holidays.
In any case where any Interest
Payment Date, Redemption Date, Repayment Date or Stated Maturity of any Debt Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Debt Securities or coupons) payment of interest or principal (and
premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such
Place of Payment with the same force and effect as if made on the Interest Payment Date, Redemption Date, Repayment Date or at the Stated
Maturity, and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption
Date, Repayment Date or Stated Maturity, as the case may be.
Section 114. Counterparts.
This Indenture 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 Indenture.
Section 115. Exemption
from Individual Liability.
No recourse under or upon any
obligation, covenant or agreement of this Indenture, or of any Debt Security or any coupon, or for any claim based thereon or otherwise
in respect thereof, shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations of the Company, and that no such personal liability whatever shall attach to, or is
or shall be incurred by, the incorporators, stockholders, officers or directors, as such, of the Company or any successor corporation,
or any of them, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or
agreements contained in this Indenture or in any of the Debt Securities or any coupon or implied therefrom; and that any and all such
personal liability, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director, as such, because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Debt Securities or any coupon
or implied, therefrom are hereby expressly waived and released as a condition of and as a consideration for, the execution of this Indenture
and the issue of such Debt Securities.
ARTICLE TWO
Debt Security Forms
Section 201. Forms
Generally.
The Registered Securities,
if any, and the Bearer Securities and related coupons, if any, of each series shall be in substantially the form (including temporary
or permanent global form) as shall be established in or pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture,
and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon, as may be required
to comply with the rules of any securities exchange, or as may, consistent herewith, be determined by the officers executing such
Debt Securities or coupons, as evidenced by their signatures on the Debt Securities or coupons. If the form of Debt Securities of any
series or coupons (including any such Global Security) is established by action taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such Debt Securities
or coupons.
Unless otherwise specified
as contemplated by Section 301, Debt Securities in bearer form other than Debt Securities in temporary or permanent global form
shall have coupons attached.
The definitive Debt Securities
and coupons, if any, shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Debt Securities, as evidenced by the execution of such Debt Securities and coupons.
Section 202. Form of
Trustee’s Certificate of Authentication.
This is one of the Debt Securities,
of the series designated herein, described in the within-mentioned Indenture.
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U.S. BANK NATIONAL ASSOCIATION,
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as Trustee
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By
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Authorized
Signatory
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Dated
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Section 203. Debt
Securities in Global Form.
If Debt Securities of a series
are issuable in whole or in part in global form, as specified as contemplated by Section 301, then, notwithstanding clause (10) of
Section 301 and the provisions of Section 302, such Global Security shall represent such of the outstanding Debt Securities
of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Debt Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding Debt Securities represented thereby may from time to
time be reduced to reflect exchanges. Any endorsement of a Global Security to reflect the amount, or any increase or decrease in the
amount, of Outstanding Debt Securities represented thereby shall be made in such manner and upon instructions given by such Person or
Persons as shall be specified therein or in the Company Order to be delivered to the Trustee pursuant to Section 303 or Section 304.
The provisions of the last
sentence of Section 303(g) shall apply to any Debt Securities represented by a Debt Security in global form if such Debt Security
was never issued and sold by the Company and the Company delivers to the Trustee the Debt Security in global form together with written
instructions (which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) with respect to the reduction
in the principal amount of Debt Securities represented thereby, together with the written statement contemplated by the last sentence
of Section 303(g).
Global Securities may be issued
in either registered or bearer form and in either temporary or permanent form.
ARTICLE THREE
The Debt Securities
Section 301. Amount
Unlimited; Issuance in Series.
The aggregate principal amount
of Debt Securities which may be authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be
issued in one or more series. There shall be established in or pursuant to a Board Resolution, and set forth in an Officers’ Certificate,
or established in one or more indentures supplemental hereto, prior to the issuance of Debt Securities of any series:
(1) the
title of the Debt Securities of the series;
(2) the
limit, if any, upon the aggregate principal amount of the Debt Securities of the series which may be authenticated and delivered under
this Indenture (except for Debt Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Debt Securities of the series pursuant to Section 304, 305, 306, 906, 1107 or 1303 and except for any Debt Securities
which, pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder);
(3) the
date or dates on which the principal and premium, if any, of the Debt Securities of the series are payable;
(4) the
rate or rates, if any, at which the Debt Securities of the series shall bear interest, or the method or methods by which such rate or
rates may be determined, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall
be payable, the Regular Record Date for the interest payable on any Registered Security on any Interest Payment Date and the circumstances,
if any, in which the Company may defer interest payments;
(5) the
place or places where, subject to the provisions of Section 1002, the principal of (and premium, if any) and interest on Debt Securities
of the series shall be payable, any Registered Securities of the series may be surrendered for registration of transfer, Debt Securities
of the series may be surrendered for exchange and notices and demands to or upon the Company in respect of the Debt Securities of the
series and this Indenture may be served;
(6) if
applicable, the period or periods within which or the date or dates on which, the price or prices at which and the terms and conditions
upon which Debt Securities of the series may be redeemed, in whole or in part, at the option of the Company;
(7) the
obligation, if any, of the Company to redeem, repay or purchase Debt Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and
conditions upon which Debt Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;
(8) whether
Debt Securities of the series are to be issuable as Registered Securities, Bearer Securities or both, whether Debt Securities of the
series are to be issuable with or without coupons or both and, in the case of Bearer Securities, the date as of which such Bearer Securities
shall be dated if other than the date of original issuance of the first Debt Security of such series of like tenor and term to be issued;
(9) whether
the Debt Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities and, in such case,
the Depositary for such Global Security or Securities, whether such global form shall be permanent or temporary and, if applicable, the
Global Exchange Date and Global Exchange Agent;
(10) if
Debt Securities of the series are to be issuable initially in the form of a temporary Global Security, the circumstances under which
the temporary Global Security can be exchanged for definitive Debt Securities and whether the definitive Debt Securities will be Registered
and/or Bearer Securities and will be in global form and whether interest in respect of any portion of such Global Security payable in
respect of an Interest Payment Date prior to the Global Exchange Date shall be paid to any clearing organization with respect to a portion
of such Global Security held for its account and, in such event, the terms and conditions (including any certification requirements)
upon which any such interest payment received by a clearing organization will be credited to the Persons entitled to interest payable
on such Interest Payment Date if other than as provided in this Article Three;
(11) whether,
and under what conditions, additional amounts will be payable to Holders of Debt Securities of the series pursuant to Section 1004;
(12) the
denominations in which any Registered Securities of the series shall be issuable, if other than denominations of $1,000 and any integral
multiple thereof, and the denominations in which any Bearer Securities of such series shall be issuable, if other than the denomination
of $5,000;
(13) if
other than the principal amount thereof, the portion of the principal amount of Debt Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to Section 502;
(14) the
currency or currencies of denomination of the Debt Securities of any series, which may be in Dollars, any Foreign Currency or any composite
currency, including but not limited to the Euro, and, if any such currency of denomination is a composite currency other than the Euro,
the agency or organization, if any, responsible for overseeing such composite currency;
(15) the
currency or currencies in which payment of the principal of (and premium, if any) and interest on the Debt Securities will be made, the
currency or currencies, if any, in which payment of the principal of (and premium, if any) or the interest on Registered Securities,
at the election of each of the Holders thereof, may also be payable and the periods within which and the terms and conditions upon which
such election is to be made, and the Exchange Rate and the person who shall be the Exchange Rate Agent for the Debt Securities of such
series;
(16) if
payments of principal of (and premium, if any) or interest on the Debt Securities of the series are to be made in a Foreign Currency
other than the currency in which such Debt Securities are denominated, the manner in which the Exchange Rate with respect to such payments
shall be determined;
(17) any
Events of Default with respect to Debt Securities of such series, if not set forth herein;
(18) any
other covenant or warranty included for the benefit of the Debt Securities of the series in addition to (and not inconsistent with) those
set forth herein for the benefit of Debt Securities of all series, or any other covenant or warranty included for the benefit of Debt
Securities of the series in lieu of any covenant or warranty set forth herein for the benefit of Debt Securities of all series, or any
provision that any covenant or warranty set forth herein for the benefit of Debt Securities of all series shall not be for the benefit
of Debt Securities of such series, or any combination of such covenants, warranties or provisions and whether the provisions of Section 1006
will not apply such covenants and warranties;
(19) if
the Debt Securities of the series are to be convertible into or exchangeable for any securities or property of any person (including
the Company), the terms and conditions upon which such Debt Securities will be so convertible or exchangeable, and any additions or changes,
if any, to permit or facilitate such conversion or exchange;
(20) the
terms and conditions, if any, pursuant to which the Company’s obligations under this Indenture may be terminated through the deposit
of money or Eligible Instruments as provided in Articles Four and Fifteen;
(21) the
Person or Persons who shall be Security Registrar for the Debt Securities of such series if other than the Trustee, and the place or
places where the Security Register for such series shall be maintained and the Person or Persons who will be the initial Paying Agent
or Agents, if other than the Trustee; and
(22) any
other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture).
All Debt Securities of any
one series and the coupons appertaining to Bearer Securities of such series, if any, shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise be provided in or pursuant to such Board Resolution and
set forth in such Officers’ Certificate or in any such indenture supplemental hereto.
Debt Securities of any particular
series may be issued at various times, with different dates on which the principal or any installment of principal is payable, with different
rates of interest, if any, or different methods by which rates of interest may be determined, with different dates on which such interest
may be payable and with different Redemption or Repayment Dates and may be denominated in different currencies or payable in different
currencies.
If any of the terms of a series
of Debt Securities are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall
be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the
Officers’ Certificate setting forth the terms of the series.
Section 302. Denominations.
Debt Securities of each series
shall be issuable in such form and denominations as shall be specified in the form of Debt Security for such series approved or established
pursuant to Section 201 or in the Officers’ Certificate delivered pursuant to Section 301. In the absence of any specification
with respect to the Debt Securities of any series, the Registered Securities of such series, if any, shall be issuable in denominations
of $1,000 and any integral multiple thereof and the Bearer Securities of such series, if any, shall be issuable in denominations of $5,000.
Section 303. Execution,
Authentication, Delivery and Dating.
(a) The
Debt Securities shall be executed on behalf of the Company by its Chairman of the Board, a Vice Chairman of the Board, the Chief Executive
Officer, the President or a Vice President, and by its Treasurer or one of its Assistant Treasurers or its Secretary or one of its Assistant
Secretaries under its corporate seal reproduced thereon. The signature of any of these officers on the Debt Securities may be manual,
facsimile or electronic. Coupons shall bear the facsimile signature of an authorized officer of the Company.
Debt Securities and coupons
bearing the manual, facsimile or electronic 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 Debt Securities or coupons of any series or did not hold such offices at the date of such Debt Securities or coupons.
(b) At
any time and from time to time after the execution and delivery of this Indenture, Debt Securities of any series may be executed by the
Company and delivered to the Trustee for authentication, and, except as otherwise provided in this Article Three, shall thereupon
be authenticated and delivered by the Trustee upon Company Order, without any further action by the Company; provided, however,
that, in connection with its original issuance, a Bearer Security may be delivered only outside the United States and, except in the
case of a temporary Global Security, only if the Company or its agent shall have received the certification required pursuant to Sections 304(b)(iii) and
(iv), unless such certification shall have been provided earlier pursuant to section 304(b)(v) hereof, and only if the Company
has no reason to know that such certification is false.
To the extent authorized in
or pursuant to a Board Resolution and set forth in an Officers’ Certificate, or established in one or more indentures supplemental
hereto, such Company Order may be given by any one officer or employee of the Company, may be electronically transmitted, and may provide
instructions as to registration of holders, principal amounts, rates of interest, maturity dates and other matters contemplated by such
Board Resolution and Officers’ Certificate or supplemental indenture to be so instructed in respect thereof. Before authorizing
and delivering the first Debt Securities of any series (and upon request of the Trustee thereafter), the Company shall deliver to the
Trustee (i) the certificates called for under Sections 201 and 301 hereof and (ii) an Opinion of Counsel described in
the next sentence.
In authenticating such Debt
Securities, and accepting the additional responsibilities under this Indenture in relation to any such Debt Securities, the Trustee shall
be entitled to receive, prior to the initial authentication of such Debt Securities, and (subject to Section 601) shall be fully
protected in relying upon:
(i) a
Board Resolution relating thereto and, if applicable, an appropriate record of any action taken pursuant to such resolution certified
by the Secretary or an Assistant Secretary of the Company;
(ii) an
executed supplemental indenture, if any, relating thereto;
(iii) an
Officers’ Certificate setting forth the form and terms of the Debt Securities of such series and coupons, if any, pursuant to Sections 201
and 301 (unless the form and terms have been established in a Board Resolution or in a supplemental indenture) and stating that all conditions
precedent provided for in this Indenture relating to the issuance of such Debt Securities have been complied with; and
(iv) an
Opinion of Counsel stating
(A) that
the form of such Debt Securities and coupons, if any, has been established in or pursuant to a Board Resolution or by a supplemental
indenture as permitted by Section 201 in conformity with the provisions of this Indenture;
(B) that
the terms of such Debt Securities and coupons, if any, have been established in or pursuant to a Board Resolution or by a supplemental
indenture as permitted by Section 301 in conformity with the provisions of this Indenture; and
(C) that
such Debt Securities and coupons, if any, 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 legal, valid and binding obligations of the Company,
enforceable in accordance with their terms, subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors’ rights generally and the application of general principles of equity and except further
as enforcement thereof may be limited by (i) requirements that a claim with respect to any Debt Securities denominated other than
in Dollars (or a Foreign Currency or currency unit judgment in respect of such claim) be converted into Dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or (ii) governmental authority to limit, delay or prohibit the making
of payments in Foreign Currencies or currency units or payments outside the United States.
(c) If
the Company shall establish pursuant to Section 301 that the Debt Securities of a series are to be issued in whole or in part in
the form of one or more Global Securities, then the Company shall execute and the Trustee shall, in accordance with this Section and
the Company Order with respect to such series, authenticate and deliver one or more Global Securities in permanent or temporary form
that (i) shall represent and shall be denominated in an aggregate amount equal to the aggregate principal amount of the Outstanding
Debt Securities of such series to be represented by one or more Global Securities, (ii) shall be registered in the name of the Depositary
for such Global Security or Securities or the nominee of such Depositary and (iii) shall be delivered by the Trustee to such Depositary
or pursuant to such Depositary’s instructions.
(d) The
Trustee shall have the right to decline to authenticate and deliver any Debt Securities under this Section 303 if the issuance of
such Debt Securities will adversely affect the Trustee’s own rights, duties or immunities under the Debt Securities and this Indenture
or otherwise in a manner which is not reasonably acceptable to the Trustee.
(e) If
all the Debt Securities of any series are not to be issued at one time, it shall not be necessary to deliver an Opinion of Counsel at
the time of issuance of each Debt Security, but such Opinion of Counsel, with appropriate modifications, may instead be delivered at
or prior to the time of the first issuance of Debt Securities of such series.
(f) Each
Registered Security shall be dated the date of its authentication. Each Bearer Security shall be dated as of the date specified as contemplated
by Section 301.
(g) No
Debt Security or coupon attached thereto shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose,
unless there appears on such Debt Security a certificate of authentication substantially in the form provided for herein executed by
the Trustee, and such certificate upon any Debt Security shall be conclusive evidence, and the only evidence, that such Debt Security
has been duly authenticated and delivered hereunder. Except as permitted by Section 306, the Trustee shall not authenticate and
deliver any Bearer Security unless all related coupons for interest then matured have been detached and cancelled. Notwithstanding the
foregoing, if any Debt Security or portion thereof shall have been duly authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Debt Security to the Trustee for cancellation as provided in Section 309 together
with a written statement (which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) stating that
such Debt Security or portion thereof has never been issued and sold by the Company, for all purposes of this Indenture such Debt Security
shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
(h) Each
Depositary designated pursuant to Section 301 for a Global Security in registered form must, at the time of its designation and
at all times while it serves as Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute or
regulation.
Section 304. Temporary
Debt Securities.
(a) Pending
the preparation of definitive Debt Securities of any series, the Company may execute, and upon receipt of documents required by Sections 301
and 303, together with a Company Order, the Trustee shall authenticate and deliver, temporary Debt Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any denomination, substantially of the tenor and terms of the definitive Debt Securities
in lieu of which they are issued in registered form or, if authorized, in bearer form with one or more coupons or without coupons, and
with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Debt Securities may determine,
as evidenced by their signatures on such Debt Securities. In the case of Debt Securities of any series issuable as Bearer Securities,
such temporary Debt Securities may be in global form, representing all or any part of the Outstanding Debt Securities of such series.
(b) Unless
otherwise provided pursuant to Section 301:
(i) Except
in the case of temporary Debt Securities in global form, if temporary Debt Securities of any series are issued, the Company will cause
definitive Debt Securities of such series to be prepared without unreasonable delay. After the preparation of definitive Debt Securities
of such series, the related temporary Debt Securities shall be exchangeable for such definitive Debt Securities upon surrender of the
temporary Debt Securities of such series at the office or agency of the Company in the Place of Payment for such series, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary Debt Securities of any series (accompanied, if applicable,
by all unmatured coupons and all matured coupons in default appertaining thereto), the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a like principal amount of definitive Debt Securities of the same series of like tenor and terms and
of authorized denominations; provided, however, that no Bearer Security shall be delivered in exchange for a Registered Security;
and provided, further, that a Bearer Security shall be delivered in exchange for a Bearer Security only in compliance with the
conditions set forth in Section 305.
(ii) If
Debt Securities of any series are issued in temporary global form, any such temporary Global Security shall, unless otherwise provided
pursuant to Section 301, be delivered to the Depositary for the benefit of Euroclear and Clearstream, for credit to the respective
accounts of the beneficial owners of such Debt Securities (or to such other accounts as they may direct).
(iii) Without
unnecessary delay but in any event not later than the date specified in, or determined pursuant to the terms of, any such temporary Global
Security (the “Global Exchange Date”), the Company shall deliver definitive Debt Securities to the Trustee or the agent appointed
by the Company pursuant to Section 301 to effect the exchange of the temporary Global Security for definitive Debt Securities (the
“Global Exchange Agent”), in an aggregate principal amount equal to the principal amount of such temporary Global Security,
executed by the Company. On or after the Global Exchange Date, such temporary Global Security shall be surrendered by the Depositary
to the Global Exchange Agent, to be exchanged, in whole or from time to time in part, for definitive Debt Securities without charge and
the Trustee or the Global Exchange Agent, if authorized by the Trustee pursuant to Section 614, shall authenticate and deliver,
in exchange for each portion of such temporary Global Security, an equal aggregate principal amount of definitive Debt Securities of
the same series of authorized denominations and of like tenor and terms as the portion of such temporary Global Security to be exchanged.
Upon any exchange of a part of such temporary Global Security for definitive Debt Securities, the portion of the principal amount and
any interest thereon so exchanged shall be endorsed by the Global Exchange Agent on a schedule to such temporary Global Security, whereupon
the principal amount and interest payable with respect to such temporary Global Security shall be reduced for all purposes by the amount
so exchanged and endorsed. The definitive Debt Securities to be delivered in exchange for any such temporary Global Security shall be
in bearer form, registered form, global registered form or global bearer form, or any combination thereof, as specified as contemplated
by Section 301, and, if any combination thereof is so specified, as requested by the beneficial owner thereof; provided, however,
that, in the case of the exchange of the temporary Global Security for definitive Bearer Securities (including a definitive Global
Bearer Security), upon such presentation by the Depositary, such temporary Global Security shall be accompanied by a certificate signed
by Euroclear as to the portion of such temporary Global Security held for its account then to be exchanged and a certificate signed
by Clearstream as to the portion of such temporary Global Security held for its account then to be exchanged, each in the form set forth
in Exhibit B to this Indenture, unless such certificate(s) shall have been provided earlier pursuant to section 304(b)(v) hereof;
and provided, further, that definitive Bearer Securities (including a definitive Global Bearer Security) shall be delivered in
exchange for a portion of a temporary Global Security only in compliance with the requirements of Section 303.
(iv) The
interest of a beneficial owner of Debt Securities of a series in a temporary Global Security shall be exchanged for definitive Debt Securities
of the same series and of like tenor and terms following the Global Exchange Date when the account holder instructs Euroclear or Clearstream,
as the case may be, to request such exchange on such account holder’s behalf and, in the case of the exchange of the temporary
Global Security for definitive Bearer Securities (including a definitive Global Bearer Security), unless such certificate(s) shall
have been provided earlier pursuant to Section 304(b)(v) hereof, the account holder delivers to Euroclear or Clearstream, as
the case may be, a certificate in the form set forth in Exhibit A-1 and, if applicable, A-2 to this Indenture, dated no
earlier than 15 days prior to the Global Exchange Date, copies of which certificate shall be available from the offices of Euroclear
and Clearstream, the Global Exchange Agent, any authenticating agent appointed for such series of Debt Securities and each Paying Agent.
Unless otherwise specified in such temporary Global Security, any such exchange shall be made free of charge to the beneficial owners
of such temporary Global Security, except that a Person receiving definitive Debt Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take delivery of such definitive Debt Securities in person at the
offices of Euroclear and Clearstream. Definitive Debt Securities in bearer form to be delivered in exchange for any portion of a temporary
Global Security shall be delivered only outside the United States.
(v) Until
exchanged in full as hereinabove provided, the temporary Debt Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Debt Securities of the same series and of like tenor and terms authenticated and delivered
hereunder, except that interest payable on a temporary Global Security on an Interest Payment Date shall be payable to Euroclear and
Clearstream on such Interest Payment Date only if there has been delivered by Euroclear and Clearstream to the Global Exchange Agent
a certificate or certificates in the form set forth in Exhibit B to this Indenture dated no earlier than the first Interest Payment
Date, for credit without further interest on or after such Interest Payment Date to the respective accounts of the Persons who are the
beneficial owners of such temporary Global Security on such Interest Payment Date and who have each delivered to Euroclear or Clearstream,
as the case may be, a certificate in the form set forth in Exhibit A-1 and, if applicable, A-2 to this Indenture dated no
earlier than the first Interest Payment Date. Any interest so received by Euroclear and Clearstream and not paid as herein provided
prior to the Global Exchange Date shall be returned to the Global Exchange Agent which, upon expiration of two years after such Interest
Payment Date, shall repay such interest to the Company in accordance with Section 1003.
Section 305. Registration;
Registration of Transfer and Exchange.
The Company shall cause to
be kept at one of the offices or agencies to be maintained by the Company in accordance with the provisions of this Section 305
and Section 1002, with respect to the Debt Securities of each series which are Registered Securities, a register (herein sometimes
referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Registered Securities and of transfers of Registered Securities. Pursuant to Section 301,
the Company shall appoint, with respect to Debt Securities of each series which are Registered Securities, a “Security Registrar”
for the purpose of registering such Debt Securities and transfers and exchanges of such Debt Securities as herein provided.
Upon surrender for registration
of transfer of any Registered Security of any series at the office or agency of the Company maintained for such purpose, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new
Registered Securities of the same series of any authorized denomination or denominations, of like tenor and terms and aggregate principal
amount.
At the option of the Holder,
Registered Securities of any series may be exchanged for other Registered Securities of the same series of any authorized form and denomination,
of like tenor and terms and aggregate principal amount, upon surrender of the Registered Securities to be exchanged at such office or
agency. Bearer Securities may not be delivered in exchange for Registered Securities.
At the option of the Holder,
Registered Securities or Bearer Securities of any series may be issued in exchange for Bearer Securities (except as otherwise specified
as contemplated by Section 301 with respect to a Bearer Security in global form) of the same series, of any authorized denominations
and of like tenor and terms and aggregate principal amount, upon surrender of the Bearer Securities to be exchanged at any such office
or agency, with all unmatured coupons and all matured coupons in default thereto appertaining. If the Holder of a Bearer Security is
unable to produce any such unmatured coupon or coupons or matured coupon or coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company and the Trustee in an amount equal to the face amount
of such missing coupon or coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if
there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such missing coupon in respect of which such a payment shall have
been made, such Holder shall be entitled to receive the amount of such payment; provided, however, that, except as otherwise provided
in Section 1002, interest represented by coupons shall be payable only upon presentation and surrender of those coupons at an office
or agency located outside the United States. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at
any such office or agency in exchange for a Registered Security of the same series and like tenor and terms after the close of business
at such office or agency on (i) any Regular Record Date and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related
date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the coupon relating to such Interest Payment
Date or proposed date of payment, as the case may be.
Whenever any Debt Securities
are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Debt Securities which
the Holder making the exchange is entitled to receive.
If at any time the Depositary
for the Debt Securities of a series notifies the Company that it is unwilling or unable to continue as Depositary for the Debt Securities
of such series or if at any time the Depositary for the Debt Securities of such series shall no longer be eligible under Section 303(h),
the Company shall appoint a successor Depositary with respect to the Debt Securities of such series. If a successor Depositary for the
Debt Securities of such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company’s election pursuant to Section 301(9) shall no longer be effective with respect to
the Debt Securities of such series and the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of definitive Debt Securities of such series, will authenticate and deliver, Debt Securities of such series in definitive
form in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in
exchange for such Global Security or Securities.
The Company may at any time
and in its sole discretion determine that the Debt Securities of any series issued in the form of one or more Global Securities shall
no longer be represented by such Global Security or Securities. In such event the Company will execute, and the Trustee, upon receipt
of a Company Order for the authentication and delivery of definitive Debt Securities of such series, will authenticate and deliver, Debt
Securities of such series in definitive form and in an aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such series in exchange for such Global Security or Securities.
If specified by the Company
pursuant to Section 301 with respect to a series of Debt Securities, the Depositary for such series of Debt Securities may surrender
a Global Security for such series of Debt Securities in exchange in whole or in part for Debt Securities of such series of like tenor
and terms and in definitive form on such terms as are acceptable to the Company and such Depositary. Thereupon, the Company shall execute,
and the Trustee shall authenticate and deliver, without charge to any Holder,
(a) to
each Person specified by such Depositary a new Debt Security or Securities of the same series, of like tenor and terms and of any authorized
denominations as requested by such person in aggregate principal amount equal to and in exchange for such Person’s beneficial interest
in the Global Security; and
(b) to
such Depositary a new Global Security of like tenor and terms and in a denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal amount of Debt Securities delivered to Holders thereof.
In any exchange provided for
in any of the preceding three paragraphs, the Company will execute and the Trustee will authenticate and deliver Debt Securities (a) in
definitive registered form in authorized denominations, if the Debt Securities of such series are issuable as Registered Securities,
(b) in definitive bearer form in authorized denominations, with coupons attached, if the Debt Securities of such series are issuable
as Bearer Securities or (c) as either Registered or Bearer Securities, as shall be specified by the beneficial owner thereof, if
the Debt Securities of such series are issuable in either form; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Global Security unless the Company or its agent shall have received from the person entitled to
receive the definitive Bearer Security a certificate substantially in the form set forth in Exhibit A-1 and, if applicable,
A-2 hereto; and provided further that delivery of a Bearer Security shall occur only outside the United States; and provided
further that no definitive Bearer Security will be issued if the Company has reason to know that any such certificate is false.
Upon the exchange of a Global
Security for Debt Securities in definitive form, such Global Security shall be cancelled by the Trustee. Registered Securities issued
in exchange for a Global Security pursuant to this Section shall be registered in such names and in such authorized denominations
as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct
the Trustee. The Trustee shall deliver such Registered Securities to the persons in whose names such Debt Securities are so registered.
The Trustee shall deliver Bearer Securities issued in exchange for a Global Security pursuant to this Section to the persons, and
in such authorized denominations, as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee; provided, however, that no definitive Bearer Security shall be delivered in exchange
for a temporary Global Security unless the Company or its agent shall have received from the person entitled to receive the definitive
Bearer Security a certificate substantially in the form set forth in Exhibit A-1 and, if applicable, A-2 hereto; and provided
further that delivery of a Bearer Security shall occur only outside the United States; and provided further that no definitive
Bearer Security will be issued if the Company has reason to know that any such certificate is false.
All Debt Securities issued
upon any registration of transfer or exchange of Debt Securities shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Debt Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented
or surrendered for registration of transfer or for exchange shall (if so required by the Company, the Security Registrar or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company, the Security Registrar and
the Trustee duly executed, by the Holder thereof or such Holder’s attorney duly authorized in writing.
No charge to any Holder shall
be made for any registration of transfer or exchange of Debt 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, registration of transfer or exchange of Debt
Securities, other than exchanges expressly provided in this Indenture to be made at the Company’s own expense or without expense
or without charge to the Holders.
The Company shall not be required
(i) to issue, register the transfer of or exchange Debt Securities of any particular series to be redeemed for a period of fifteen
days preceding the first publication of the relevant notice of redemption or, if Registered Securities are outstanding and there is no
publication, the mailing of the relevant notice of redemption of Debt Securities of such series selected for redemption under Section 1103
and ending at the close of business on the day of such mailing, or (ii) to register the transfer of or exchange any Registered Security
so selected for redemption in whole or in part, except the unredeemed portion of such Registered Security being redeemed in part, or
(iii) to exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered
Security of like tenor and terms of that series, provided that such Registered Security shall be simultaneously surrendered for
redemption.
Notwithstanding anything herein
to the contrary, the exchange of Bearer Securities into Registered Securities shall be subject to applicable laws and regulations in
effect at the time of exchange; neither the Company, the Trustee nor the Security Registrar shall exchange any Bearer Securities into
Registered Securities if it has received an Opinion of Counsel that as a result of such exchanges the Company would suffer adverse consequences
under the United States Federal income tax laws and regulations then in effect and the Company has delivered to the Trustee a Company
Order directing the Trustee not to make such exchanges thereafter unless and until the Trustee receives a subsequent Company Order to
the contrary. The Company shall deliver copies of such Company Orders to the Security Registrar.
Section 306. Mutilated,
Destroyed, Lost and Stolen Debt Securities.
If (i) any mutilated Debt
Security or a Bearer Security with a mutilated coupon appertaining to it is surrendered to a Paying Agent outside the United States designated
by the Company, or, in the case of any Registered Security, to the Trustee, or (ii) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Debt Security or coupon, and there is delivered to the Company and the
Trustee such security or indemnity as may be required by them to save each of them harmless, then, in the absence of notice to the Company
and the Trustee that such Debt Security or coupon has been acquired by a bona fide purchaser, the Company shall execute and upon its
written request the Trustee shall authenticate and deliver, in exchange for any such mutilated Debt Security or Bearer Security with
a mutilated coupon appertaining to it or to which a destroyed, lost or stolen coupon appertains (with all related coupons not destroyed,
lost or stolen) or in lieu of any such destroyed, lost or stolen Debt Security, a new Debt Security of like tenor and terms and principal
amount, bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to such destroyed,
lost or stolen Debt Security or to the Debt Security to which such destroyed, lost or stolen coupon appertains; provided, however,
that any such new Bearer Security will be delivered only in compliance with the conditions set forth in Section 305.
In case any such mutilated,
destroyed, lost or stolen Debt Security or coupon has become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Debt Security, pay such Debt Security or coupon; provided, however, that payment of principal of (and
premium, if any) and any interest on Bearer Securities shall, except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States; and provided, further, that, with respect to any such coupons, interest represented
thereby (but not any additional amounts payable as provided in Section 1004), shall be payable only upon presentation and surrender
of the coupons appertaining thereto.
Upon the issuance of any new
Debt Security or coupons under this Section, 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 and printing expenses)
connected therewith.
Every new Debt Security of
any series, with its coupons, if any, issued pursuant to this Section in lieu of any destroyed, lost or stolen Debt Security, or
in exchange for a Bearer Security to which a destroyed, lost or stolen coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Debt Security and its coupons, if any, or the destroyed, lost
or stolen coupon shall be at any time enforceable by anyone, and any such new Debt Security and coupons, if any, shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all other Debt Securities of that series and their coupons,
if any, duly issued hereunder.
The provisions of this Section 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 Debt Securities or coupons.
Section 307. Payment
of Interest; Interest Rights Preserved.
Interest on any Registered
Security which 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 Registered Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date
for such interest. In case a Bearer Security of any series is surrendered in exchange for a Registered Security of such series after
the close of business (at an office or agency in a Place of Payment for such series) on any Regular Record Date and before the opening
of business (at such office or agency) on the next succeeding Interest Payment Date, such Bearer Security shall be surrendered without
the coupon relating to such Interest Payment Date and interest will not be payable on such Interest Payment Date in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon when due in accordance with
the provisions of this Indenture. At the option of the Company, payment of interest on any Registered Security may be made by check in
the currency designated for such payment pursuant to the terms of such Registered Security mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register or by wire transfer to an account in such currency designated by such Person
in writing not later than ten days prior to the date of such payment.
Any interest on any Registered
Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called
“Defaulted Interest”) shall forthwith cease to be payable to the registered Holder on the relevant Regular Record Date by
virtue of his having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided
in Clause (1) or (2) below:
(1) The
Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Registered Security of such series and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money and/or, to the extent such Debt Securities are denominated and payable in Dollars only,
Eligible Instruments the payments of principal and interest on which when due (and without reinvestment and providing no tax liability
will be imposed upon the Trustee or the Holder of such Registered Securities) will provide money in such amounts as will (together with
any money irrevocably deposited in trust with the Trustee, without investment) be 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 and/or Eligible Instruments when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the written notice of the proposed payment. The Trustee shall promptly notify the Company of such Special
Record Date. Unless the Trustee is acting as the Security Registrar, promptly after such Special Record Date, the Company shall furnish
the Trustee with a list, or shall make arrangements satisfactory to the Trustee with respect thereto, of the names and addresses of,
and principal amounts of Registered Securities of such series held by, the Holders appearing on the Security Register at the close of
business on such Special Record Date. In the name and at the expense of the Company, the Trustee 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 Registered
Securities of such series at his address as it appears in the Security Register, not less than 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 mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following
Clause (2). In case a Bearer Security of any series is surrendered at the office or agency in a Place of Payment for such series
in exchange for a Registered Security of such series after the close of business at such office or agency on any Special Record Date
and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such proposed date of payment and Defaulted Interest will not be payable
on such proposed date of payment in respect of the Registered Security issued in exchange for such Bearer Security, but will be payable
only to the Holder of such coupon when due in accordance with the provisions of this Indenture.
(2) The
Company may make payment of any Defaulted Interest on the Registered Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Registered Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions
of this Section, each Debt Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of
any other Debt Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Debt Security.
Subject to the limitations
set forth in Section 1002, the Holder of any coupon appertaining to a Bearer Security shall be entitled to receive the interest
payable on such coupon upon presentation and surrender of such coupon on or after the Interest Payment Date of such coupon at an office
or agency maintained for such purpose pursuant to Section 1002.
Section 308. Persons
Deemed Owners.
Prior to due presentment of
a Registered Security for registration of transfer, the Company, the Trustee and any agent of the Company or of the Trustee may treat
the Person in whose name such Registered Security is registered as the owner of such Registered Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to Section 307) interest on such Registered Security and for all other
purposes whatsoever, whether or not such Registered Security be overdue, and neither the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the contrary.
The Company, the Trustee and
any agent of the Company or the Trustee may treat the bearer of any Bearer Security and the bearer of any coupon as the absolute owner
of such Bearer Security or coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Bearer Security or coupon be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee,
any Paying Agent or the Security Registrar 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 for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
Section 309. Cancellation.
Unless otherwise provided with
respect to a series of Debt Securities, all Debt Securities and coupons surrendered for payment, redemption, repayment, transfer, exchange
or credit against any sinking fund payment pursuant to this Indenture, shall, if surrendered to the Company or any agent of the Company,
be delivered to the Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation
any Debt Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and
all Debt Securities so delivered shall be promptly cancelled by the Trustee. No Debt Securities shall be authenticated in lieu of or
in exchange for any Debt Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled
Debt Securities and coupons held by the Trustee shall be destroyed and certification of their destruction delivered to the Company unless
by a Company Order the Company shall direct that the cancelled Debt Securities or coupons be returned to it.
Section 310. Computation
of Interest.
Except as otherwise specified
as contemplated by Section 301 for Debt Securities of any series, interest on the Debt Securities of each series shall be computed
on the basis of a 360-day year of twelve 30-day months.
Section 311. Certification
by a Person Entitled to Delivery of a Bearer Security.
Whenever any provision of this
Indenture or a Debt Security contemplates that certification be given by a Person entitled to delivery of a Bearer Security, such certification
shall be provided substantially in the form of Exhibit A-1 and, if applicable, A-2 hereto, with only such changes as shall
be approved by the Company and consented to by the Trustee whose consent shall not unreasonably be withheld.
Section 312. Judgments.
The Company may provide, pursuant
to Section 301, for the Debt Securities of any series that, to the fullest extent possible under applicable law and except as may
otherwise be specified as contemplated in Section 301, (a) the obligation, if any, of the Company to pay the principal of (and
premium, if any) and interest on the Debt Securities of any series and any related coupons in a Foreign Currency, composite currency
or Dollars (the “Designated Currency”) as may be specified pursuant to Section 301 is of the essence and that judgments
in respect of such Debt Securities shall be given in the Designated Currency; (b) the obligation of the Company to make payments
in the Designated Currency of the principal of (and premium, if any) and interest on such Debt Securities and any related coupons shall,
notwithstanding any payment in any other currency (whether pursuant to a judgment or otherwise), be discharged only to the extent of
the amount in the Designated Currency that the Holder receiving such payment may, in accordance with normal banking procedures, purchase
with the sum paid in such other currency (after any premium and cost of exchange) in the country of issue of the Designated Currency
in the case of Foreign Currency or Dollars or in the international banking community in the case of a composite currency on the Business
Day immediately following the day on which such Holder receives such payment; (c) if the amount in the Designated Currency that
may be so purchased for any reason falls short of the amount originally due, the Company shall pay such additional amounts as may be
necessary to compensate for such shortfall; and (d) any obligation of the Company not discharged by such payment shall be due as
a separate and independent obligation and, until discharged as provided herein, shall continue in full force and effect.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. 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 Debt Securities herein
expressly provided for and rights to receive payments of principal and interest thereon and any right to receive additional amounts,
as provided in Section 1004) and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction
and discharge of this Indenture when
(1) either
(A) all
Debt Securities theretofore authenticated and delivered and all coupons appertaining thereto (other than (i) coupons appertaining
to Bearer Securities surrendered in exchange for Registered Securities and maturing after such exchange, surrender of which is not required
or has been waived as provided in Section 305, (ii) Debt Securities and coupons which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306, (iii) coupons appertaining to Bearer Securities called for redemption
or surrendered for repayment and maturing after the relevant Redemption Date or Repayment Date, as appropriate, surrender of which has
been waived as provided in Section 1106 or 1303 and (iv) Debt Securities and coupons for whose payment money and/or Eligible
Instruments have 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 1003) have been delivered to the Trustee cancelled or for cancellation; or
(B) all
such Debt Securities not theretofore delivered to the Trustee for cancellation
(i) have
become due and payable, or
(ii) will
become due and payable at their Stated Maturity within one year, or
(iii) 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 (B)(i), (B)(ii) or (B)(iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose money and/or, to the extent such Debt Securities are denominated and payable in Dollars only, Eligible
Instruments the payments of principal and interest on which when due (and without reinvestment and providing no tax liability will be
imposed upon the Trustee or the Holders of Debt Securities) will provide money in such amounts as will (together with any money irrevocably
deposited in trust with the Trustee, without investment) be sufficient to pay and discharge the entire indebtedness on such Debt Securities
and coupons of such series for principal (and premium, if any) and interest, and any mandatory sinking fund, repayment or analogous payments
thereon, on the scheduled due dates therefor to the date of such deposit (in the case of Debt Securities and coupons which have become
due and payable) or to the Stated Maturity or Redemption Date, if any, and all Repayment Dates (in the case of Debt Securities repayable
at the option of the Holders thereof); provided, however, that in the event a petition for relief under any applicable Federal
or state bankruptcy, insolvency, reorganization or other similar law is filed with respect to the Company within 91 days after the deposit,
the obligations of the Company under the Indenture with respect to the Debt Securities of such series shall not be deemed terminated
or discharged, and in such event the Trustee shall be required to return the deposited money and Eligible Instruments then held by the
Trustee to the Company;
(2) the
Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(3) 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 607 and, if money or Eligible Instruments shall have
been deposited with the Trustee pursuant to Subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive such satisfaction and discharge.
Section 402. Application
of Trust Money and Eligible Instruments.
(a) Subject
to the provisions of the last paragraph of Section 1003, all money and Eligible Instruments deposited with the Trustee pursuant
to Section 401, 403 or 1501 shall be held in trust and such money and the principal and interest received on such Eligible Instruments
shall be applied by it, in accordance with the provisions of the Debt Securities, any coupons and this Indenture, to the payment, 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 premium, if any) and interest for whose payment such money or Eligible Instruments have been
deposited with the Trustee.
(b) The
Trustee shall deliver or pay to the Company from time to time upon Company Request any Eligible Instruments or money held by it as provided
in Section 403 or 1501 which, in the opinion of a nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, are then in excess of the amount thereof which then would have been required
to be deposited for the purpose for which such Eligible Instruments or money were deposited or received.
(c) The
Trustee shall deliver to the Company from time to time upon Company Request any Eligible Instruments held by it as provided in Section 403
or 1501, provided that the Company in substitution therefor simultaneously delivers to the Trustee, money or other Eligible Instruments
which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee, would then be sufficient to satisfy the Company’s payment obligations in respect of the Debt Securities
in the manner contemplated by Section 403 or 1501.
Section 403. Satisfaction,
Discharge and Defeasance of Debt Securities of any Series.
If this Section 403 is
specified, as contemplated by Section 301, to be applicable to Debt Securities of any series, then, notwithstanding Section 401,
(i) the Company shall be deemed to have paid and discharged the entire indebtedness on all the Outstanding Debt Securities of any
such series and related coupons; (ii) the provisions of this Indenture as it relates to such Outstanding Debt Securities and related
coupons shall no longer be in effect (except as to the rights of Holders of Debt Securities to receive, from the trust fund described
in subparagraph (1) below, payment of (x) the principal of (and premium, if any) and any installment of principal of (and
premium, if any) or interest on such Debt Securities and related coupons on the Stated Maturity of such principal (and premium, if any)
or installment of principal (and premium, if any) or interest or (y) any mandatory sinking fund, repayment or analogous payments
applicable to the Debt Securities of that series on that day on which such payments are due and payable in accordance with the terms
of this Indenture and of such Debt Securities, the Company’s obligations with respect to such Debt Securities under Sections 304,
305, 306, 1002, 1003 and 1004 and the rights, powers, trusts, duties and immunities of the Trustee hereunder, including those under Section 607
hereof); and (iii) the Trustee, at the expense of the Company, shall, upon Company Order, execute proper instruments acknowledging
satisfaction and discharge of such indebtedness, when
(1) either
(A) with
respect to all Outstanding Debt Securities of such series and related coupons, with reference to this Section 403, the Company has
deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 609 who shall agree
to comply with the provisions of this Section 403 applicable to it) irrevocably, as trust funds in trust, money and/or, to the extent
such Debt Securities are denominated and payable in Dollars only, Eligible Instruments the payments of principal and interest on which
when due (and without reinvestment and providing no tax liability will be imposed upon the Trustee or the Holders of such Debt Securities)
will provide money in such amounts as will (together with any money irrevocably deposited in trust with the Trustee, without investment)
be sufficient to pay and discharge (i) the principal of (and premium, if any) and interest on the Outstanding Debt Securities of
that series and related coupons on the Stated Maturity of such principal or interest or, if such series may be redeemed by the Company
prior to the Stated Maturity thereof, and the Company shall have given irrevocable instructions to the Trustee to effect such redemption,
at the date fixed for such redemption pursuant to Article Eleven, and (ii) any mandatory sinking fund payments or analogous
payments applicable to Debt Securities of such series on the date on which such payments are due and payable in accordance with the terms
of this Indenture and of such Debt Securities; or
(B) the
Company has properly fulfilled such other means of satisfaction and discharge as is specified, as contemplated by Section 301, to
be applicable to the Debt Securities of such series;
(2) the
Company has paid or caused to be paid all sums payable with respect to the Outstanding Debt Securities of such series and related coupons;
(3) such
deposit will not result in a breach of, or constitute a default under, this Indenture or any other agreement or instrument to which the
Company is a party or by which it is bound;
(4) no
Event of Default or event which, with the giving of notice or lapse of time, or both, would become an Event of Default pursuant to Section 501(1),
(2), (3), (5) or (6) with respect to the Debt Securities of such series shall have occurred and be continuing on the date of
such deposit and no Event of Default under Section 501(5) or Section 501(6) or event which, with the giving of notice
or lapse of time, or both, would become an Event of Default under Section 501(5) or Section 501(6) shall have occurred
and be continuing on the 91st day after such date; provided, however, that should that condition fail to be
satisfied on or before such 91st day, the Trustee shall promptly, upon satisfactory receipt of evidence of such failure, return
such deposit to the Company;
(5) the
Company has delivered to the Trustee an Opinion of Counsel to the effect that (a) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (b) since the date of this Indenture there has been a change in applicable
Federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders
of Debt Securities and related coupons of such series will not recognize income, gain or loss for Federal income tax purposes as a result
of such deposit, defeasance and discharge and will be subject to Federal income tax on the same amount and in the same manner and
at the same times as would have been the case if such deposit, defeasance and discharge had not occurred;
(6) if
the Debt Securities of that series are then listed on any domestic or foreign securities exchange, the Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that such deposit, defeasance and discharge will not cause such Debt Securities to be
delisted;
(7) such
deposit shall have been effected in compliance with any additional terms, conditions or limitations which may be imposed on the Company
in connection therewith pursuant to Section 301; and
(8) 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 the entire indebtedness of all Outstanding Debt Securities and related
coupons have been complied with.
Any deposits with the Trustee
referred to in Section 403(1)(A) above shall be irrevocable and shall be made under the terms of an escrow or trust agreement
in form and substance satisfactory to the Trustee. If any Outstanding Debt Securities of such series are to be redeemed prior to their
Stated Maturity, whether pursuant to any optional redemption provisions or in accordance with any mandatory sinking fund requirement,
the applicable escrow or trust agreement shall provide therefor and the Company shall make such arrangements as are satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Upon the satisfaction of the
conditions set forth in this Section 403 with respect to all the Outstanding Debt Securities of any series, the terms and conditions
of such series, including the terms and conditions with respect thereto set forth in this Indenture, shall no longer be binding upon,
or applicable to, the Company; provided that the Company shall not be discharged from any payment obligations in respect of Debt
Securities of such series which are deemed not to be Outstanding under clause (iii) of the definition thereof if such obligations
continue to be valid obligations of the Company under applicable law.
Notwithstanding the cessation,
termination and discharge of all obligations, covenants and agreements (except as provided above in this Section 403) of the Company
under this Indenture with respect to any series of Debt Securities, the obligations of the Company to the Trustee under Section 607,
and the obligations of the Trustee under Section 402 and the last paragraph of Section 1003, shall survive with respect to
such series of Debt Securities.
ARTICLE FIVE
Remedies
Section 501. Events
of Default.
“Event of Default”,
wherever used herein with respect to Debt Securities of any series, means 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, pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default
in the payment of any interest upon any Debt Security of such series or a related coupon, if any, when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default
in the payment of the principal of (or premium, if any, on) any Debt Security of such series at its Maturity; or
(3) default
in the deposit of any sinking fund payment, when and as due by the terms of a Debt Security of such series; or
(4) default
in the performance, or breach, of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty a default
in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in
this Indenture solely for the benefit of Debt Securities of a series other than such series), and continuance of such default or breach
for a period of 90 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 25% in principal amount of the Outstanding Debt Securities of such series, 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;
or
(5) the
entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or state bankruptcy, insolvency, reorganization or other similar law or (B) 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 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 60 consecutive days; or
(6) the
commencement by the Company of a voluntary case or proceeding under any applicable Federal or state bankruptcy, insolvency, reorganization
or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the
entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or
state bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding
against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State
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 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, or the taking of corporate action by the Company in furtherance of any such action; or
(7) any
other Event of Default, if any, provided with respect to Debt Securities of such series specified as contemplated by Section 301.
Section 502. Acceleration
of Maturity; Rescission and Annulment.
If an Event of Default with
respect to Debt Securities of any series at the time Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of Outstanding Debt Securities of such series may declare the principal amount (or,
if the Debt Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be specified
in the terms of such series) of and all accrued but unpaid interest on all the Debt Securities of such series to be due and payable immediately,
by a notice in writing to the Company (and to the Trustee if given by such Holders), and upon any such declaration such principal amount
(or specified amount) shall become immediately due and payable. Upon payment of such amount, all obligations of the Company in respect
of the payment of principal of the Debt Securities of such series shall terminate.
At any time after such a declaration
of acceleration with respect to Debt Securities of any series has been made and before a judgment or decree for payment of the money
due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series, by written notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences if
(1) the
Company has paid or deposited with the Trustee a sum sufficient to pay
(A) all
overdue installments of interest on all Debt Securities of such series and any related coupons,
(B) the
principal of (and premium, if any, on) any Debt Securities of such series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates prescribed therefor in such Debt Securities,
(C) to
the extent that payment of such interest is lawful, interest upon overdue installments of interest on each Debt Security and any related
coupons at the rate or rates prescribed therefor in such Debt Securities, and
(D) all
sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel;
and
(2) all
Events of Default with respect to Debt Securities of such series, other than the non-payment of the principal of Debt Securities
of such series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent
default or impair any right consequent thereon.
Section 503. Collection
of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that
if:
(1) default
is made in the payment of any installment of interest on any Debt Security or any related coupon when such interest becomes due and payable
and such default continues for a period of 30 days, or
(2) default
is made in the payment of the principal of (or premium, if any, on) any Debt Security at the Maturity thereof,
the Company will, upon demand of the Trustee,
pay to it, for the benefit of the Holders of such Debt Securities and any related coupons, the amount then due and payable on such Debt
Securities and coupons for principal (and premium, if any) and interest and, to the extent that payment of such interest shall be legally
enforceable, interest upon the overdue principal (and premium, if any) and, upon overdue installments of interest, at the rate or rates
prescribed therefor in such Debt Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel.
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 Debt Securities and coupons and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company or any other obligor upon such Debt Securities and coupons,
wherever situated.
If an Event of Default with
respect to Debt Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Debt Securities of such series and any related coupons 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 504. Trustee
May File Proofs of Claim.
In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceedings,
or any voluntary or involuntary case under the Federal bankruptcy laws as now or hereafter constituted, relative to the Company or any
other obligor upon the Debt Securities of a particular series or any related coupons or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal of such Debt Securities shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceedings or otherwise,
(1) to
file and prove a claim for the whole amount of principal (and premium, if any) and interest owing and unpaid in respect of the Debt Securities
of such series and any related coupons and to file such other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial proceeding, and
(2) to
collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian,
liquidator, sequestrator or other similar official in any such 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 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 due the Trustee under Section 607.
Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Debt Securities or any coupons or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 505. Trustee
May Enforce Claims without Possession of Debt Securities or Coupons.
All rights of action and claims
under this Indenture or the Debt Securities or coupons may be prosecuted and enforced by the Trustee without the possession of any of
the Debt Securities or coupons 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, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable
benefit of the Holders of the Debt Securities and coupons in respect of which such judgment has been recovered.
Section 506. Application
of Money Collected.
Any money collected by the
Trustee pursuant to this Article 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 on account of principal (and premium, if any) or interest, upon presentation of the Debt Securities
or any coupons, or both, as the case may be, 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 under Section 607;
SECOND: To
the payment of the amounts then due and unpaid for principal of (and premium, if any) and interest on the Debt Securities and any coupons,
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 such Debt Securities and any coupons for principal (and premium, if any) and interest, respectively.
The Holders of each series of Debt Securities denominated in Euro, any other composite currency or a Foreign Currency and any matured
coupons relating thereto shall be entitled to receive a ratable portion of the amount determined by the Exchange Rate Agent by converting
the principal amount Outstanding of such series of Debt Securities and matured but unpaid interest on such series of Debt Securities
in the currency in which such series of Debt Securities is denominated into Dollars at the Exchange Rate as of the date of declaration
of acceleration of the Maturity of the Debt Securities; and
THIRD: The
balance, if any, to the Company.
Section 507. Limitation
on Suits.
No Holder of any Debt Securities
of any series or any related coupons shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such
Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Debt Securities of such
series;
(2) the
Holders of not less than 25% in principal amount of the Outstanding Debt Securities of such series 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;
(3) such
Holder or Holders have offered to the Trustee reasonable indemnity satisfactory to it against the costs, expenses and liabilities to
be incurred in compliance with such request;
(4) the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no
direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Debt Securities of such series;
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 of, any provision of this Indenture
to affect, disturb or prejudice the rights of any other such Holders, 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 of such Holders.
Section 508. Unconditional
Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision
in this Indenture, the Holder of any Debt Security or coupon shall have the right which is absolute and unconditional to receive payment
of the principal of (and premium, if any) and (subject to Section 307) interest on such Debt Security or payment of such coupon
on the respective Stated Maturity or Maturities expressed in such Debt Security or coupon (or, in the case of redemption or repayment,
on the Redemption Date or the Repayment Date, as the case may be) and to institute suit for the enforcement of any such payment, and
such right shall not be impaired without the consent of such Holder.
Section 509. Restoration
of Rights and Remedies.
If the Trustee or any Holder
has instituted any proceedings 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 or to such Holder, then and in every such case the Company, the Trustee
and the Holders shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 510. Rights
and Remedies Cumulative.
Except as otherwise provided
in Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to 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 511. Delay
or Omission Not Waiver.
No delay or omission of the
Trustee or of any Holder of any Debt Security or coupon 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 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient,
by the Trustee or by the Holders, as the case may be.
Section 512. Control
by Holders of Debt Securities.
The Holders of a majority in
principal amount of the Outstanding Debt Securities of any series 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 with respect to the
Debt Securities of such series, provided, that
(1) such
direction shall not be in conflict with any rule of law or with this Indenture;
(2) subject
to the provisions of Section 601, the Trustee shall have the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Responsible Officers of the Trustee, determine that the proceedings so directed would be unjustly
prejudicial to the Holders of Debt Securities of such series not joining in any such direction; and
(3) the
Trustee may take any other action deemed necessary by the Trustee which is not inconsistent with such direction.
Section 513. Waiver
of Past Defaults.
The Holders of not less than
a majority in principal amount of the Outstanding Debt Securities of any series may on behalf of the Holders of all the Debt Securities
of any such series and any related coupons waive any past default hereunder with respect to such series and its consequences, except
a default
(1) in
the payment of the principal of (or premium, if any) or interest on any Debt Security of such series, or
(2) in
respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder
of each Outstanding Debt Security of such series or coupons affected.
Upon any such waiver, such
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 default or impair any right consequent thereon.
Section 514. Undertaking
for Costs.
All parties to this Indenture
agree, and each Holder of any Debt Security or coupon by his 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, suffered 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 a due regard to the merits and good faith of the claims or defenses made by
such party litigant, but the provisions of this Section shall not apply to any suit instituted by the Company or the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding
Debt Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on any Debt Security or the payment of any coupons on or after the respective Stated Maturity or Maturities expressed
in such Debt Security or coupon (or, in the case of redemption or repayment, on or after the Redemption Date or Repayment Date, as the
case may be).
Section 515. Waiver
of 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 stay or extension law whenever 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 benefits
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 SIX
The Trustee
Section 601. Certain
Duties and Responsibilities.
(a) 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;
but in the case of any such certificates or opinions which 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 conform to the requirements of this Indenture
(but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(b) In
case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs.
(c) No
provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
(i) this
subsection shall not be construed to limit the effect of subsection (a) of this Section 601;
(ii) the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(iii) 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 a majority in principal amount of the Outstanding Debt Securities of any series, determined as provided in Sections 101,
104 and 512, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture with respect to the Debt Securities of such series; and
(iv) 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.
(d) 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.
Section 602. Notice
of Default.
If a default occurs hereunder
with respect to Debt Securities of any series the Trustee shall transmit by mail to all Holders of Debt Securities of such series notice
of such default as and to the extent provided by the Trust Indenture Act; provided, however, that in the case of any default of
the character specified in Section 501(4) with respect to Debt Securities of such series no such notice to Holders shall be
given until at least 30 days after the occurrence thereof; and provided further, that, except in the case of a default in the
payment of principal of (or premium, if any) or interest on any Debt Security of such series or related coupons or in the payment of
any sinking fund installment with respect to Debt Securities of such series, the Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive committee or a trust committee of directors and/or a Responsible Officer of the
Trustee in good faith determines that the withholding of such notice is in the interest of the Holders of the Debt Securities of such
series. For the purpose of this Section, the term “default” means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Debt Securities of such series.
Section 603. Certain
Rights of Trustee.
Except as otherwise provided
in Section 601:
(a) the
Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any signature, resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or document
(whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or
parties;
(b) any
request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(c) 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, rely upon an Officers’ Certificate;
(d) the
Trustee may consult with counsel 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 of Debt Securities of such series or any related coupons pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction;
(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, debenture, note, coupon, other evidence of indebtedness or other paper
or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney, other than any such books or records containing information
as to the affairs of the customers of the Company or any of its subsidiaries; provided that the Trustee may examine such books
and records relating to customers to the extent that such books and records contain information as to any payments made to such customers
in their capacity as Holders of Debt Securities; and provided further that the Trustee shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation;
(g) the
Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder; no Exchange Rate Agent, Global Exchange Agent, Depositary or Paying Agent shall be deemed an agent of the Trustee
and the Trustee shall not be responsible for any act or omission by any of them;
(h) the
Trustee shall not be charged with knowledge of any default or Event of Default with respect to the Debt Securities of any series for
which it is acting as Trustee unless either (i) a Responsible Officer of the Trustee shall have actual knowledge of the default
or Event of Default or (ii) written notice of such default or Event of Default shall have been given to the Trustee by the Company
and other obligor on such Debt Securities or by any Holder of such Debt Securities;
(i) in
no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including,
but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action; and
(j) the
Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising
out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God;
earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics; pandemics; riots; interruptions; loss
or malfunction of utilities, computer (hardware or software) or communication services or the unavailability of the Federal Reserve Bank
wire or telex or other wire or communication facility accidents; labor disputes; acts of civil or military authority and governmental
action; it being understood that the Trustee shall use commercially reasonable efforts which are consistent with accepted practices in
the banking industry to resume performance as soon as reasonably practicable under the circumstances.
Section 604. Not
Responsible for Recitals or Issuance of Debt Securities.
The recitals contained herein
and in the Debt Securities, except the Trustee’s certificates of authentication, and in any coupons, and the information in any
registration statement, including all attachments thereto, except information provided by the Trustee therein, shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Debt Securities of any series or any coupons. The Trustee shall not be accountable
for the use or application by the Company of any Debt Securities or the proceeds thereof. The Trustee shall not be responsible for and
makes no representations as to the Company’s ability or authority to issue Bearer Securities or the lawfulness thereof.
Section 605. May Hold
Debt Securities or Coupons.
The Trustee, any Paying Agent,
the Security Registrar or any other agent of the Company or the Trustee, in its individual or any other capacity, may become the owner
or pledgee of Debt Securities and coupons, and, subject to Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Security Registrar or such agent.
Section 606. Money
Held in Trust.
Money held by the Trustee or
any Paying Agent in trust hereunder need not be segregated from other funds except to the extent required by law. Neither the Trustee
nor any Paying Agent shall be under any liability for interest on any money received by it hereunder except as otherwise agreed with
the Company.
Section 607. Compensation
and Reimbursement.
The Company agrees
(1) to
pay to the Trustee from time to time such compensation for all services rendered by it hereunder which shall have been separately agreed
to from time to time in writing by the Company and the Trustee (which compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) except
as otherwise expressly provided herein, 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
or willful misconduct; and
(3) to
fully indemnify the Trustee for, and to hold it harmless against, any and all claims, losses, liabilities, damages or expenses (including
taxes other than taxes based upon the income of the Trustee) incurred without negligence or willful misconduct on its part, arising out
of or in connection with the acceptance or administration of this trust or performance of its 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.
As security for the performance
of the obligations of the Company under this Section the Trustee shall have a claim prior to the Debt Securities and any coupons
upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (and
premium, if any) or interest on particular Debt Securities or any coupons.
Section 608. Disqualification;
Conflicting Interests.
If the Trustee has or shall
acquire any conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting interest with respect to Debt Securities of any series by
virtue of being a trustee under this Indenture with respect to any particular series of Debt Securities.
Section 609. Corporate
Trustee Required; Eligibility.
There shall at all times be
a Trustee hereunder which shall be a corporation that is eligible pursuant to the Trust Indenture Act to act as such and organized and
doing business under the laws of the United States, any State thereof or the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least $5,000,000, and subject to supervision or examination by Federal
or State authority; provided, however, that if Section 310(a) of the Trust Indenture Act or the rules and regulations
of the Commission under the Trust Indenture Act at any time permit a corporation organized and doing business under the laws of any other
jurisdiction to serve as trustee of an indenture qualified under the Trust Indenture Act, this Section 609 shall be automatically
amended to permit a corporation organized and doing business under the laws of any such other jurisdiction to serve as Trustee hereunder.
If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, 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, it shall resign promptly in the manner and with the effect hereinafter
specified in this Article.
Section 610. 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 shall become effective
until the acceptance of appointment by the successor Trustee under Section 611.
(b) The
Trustee may resign at any time with respect to the Debt Securities of one or more series by giving written notice thereof to the Company.
If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition at the expense of the Company any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Debt Securities of such series.
(c) The
Trustee may be removed at any time with respect to the Debt Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Debt Securities of such series, delivered to the Trustee and to the Company. If an instrument of acceptance
by a successor Trustee shall not have been delivered to the Trustee within 30 days of receipt of such Act specifying removal, the
removed Trustee may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Debt Securities of such series.
(d) If
at any time:
(1) the
Trustee shall fail to comply with Section 608 with respect to the Debt Securities of any series after written request therefor by
the Company or by any Holder who has been a bona fide Holder of a Debt Security of such series for at least six months, or
(2) the
Trustee shall cease to be eligible under Section 609 with respect to any series of Debt Securities and shall fail to resign after
written request therefor by the Company or by any such Holder, or
(3) the
Trustee shall become incapable of acting with respect to any series of Debt Securities or a decree or order for relief by a court having
jurisdiction in the premises shall have been entered in respect of the Trustee in an involuntary case under the Federal bankruptcy laws,
as now or hereafter constituted, or any other applicable Federal or State bankruptcy, insolvency or similar law; or a decree or order
by a court having jurisdiction in the premises shall have been entered for the appointment of a receiver, custodian, liquidator, assignee,
trustee, sequestrator or other similar official of the Trustee or of its property or affairs, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation, winding up or liquidation, or
(4) the
Trustee shall commence a voluntary case under the Federal bankruptcy laws, as now or hereafter constituted, or any other applicable Federal
or State bankruptcy, insolvency or similar law or shall consent to the appointment of or taking possession by a receiver, custodian,
liquidator, assignee, trustee, sequestrator or other similar official of the Trustee or its property or affairs, or shall make an assignment
for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due, or shall take corporate
action in furtherance of any such action,
then, in any such case, (i) the Company
by a Board Resolution may remove the Trustee with respect to such series or (ii) subject to Section 514, any Holder who has
been a bona fide Holder of a Debt Security of any series for at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee for the Debt Securities of such series and the appointment
of a successor Trustee. In addition, the Company may remove the Trustee if the Company shall determine by a Board Resolution that the
services provided by the Trustee hereunder may be obtained at a substantially lower cost to the Company.
(e) If
the Trustee shall resign, be removed or become incapable of acting with respect to any series of Debt Securities, or if a vacancy shall
occur in the office of Trustee for any cause, with respect to the Debt Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the Debt Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the Debt Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Debt Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy,
a successor Trustee with respect to the Debt Securities of any series shall be appointed by Act of the Holders of a majority in principal
amount of the Outstanding Debt Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee with respect to the Debt Securities
of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the
Debt Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Debt Security of such series for at least six months may, subject to Section 514,
on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Debt Securities of such series.
(f) The
Company shall give notice of each resignation and each removal of the Trustee with respect to the Debt Securities of any series and each
appointment of a successor Trustee with respect to the Debt Securities of any series by mailing written notice of such event by first-class
mail, postage prepaid, to the Holders of Registered Securities, if any, of such series as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor Trustee with respect to the Debt Securities of such series and the address
of its Corporate Trust Office.
Section 611. Acceptance
of Appointment by Successor.
(a) In
the case of an appointment hereunder of a successor Trustee with respect to all Debt Securities, every such 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 request of the Company
or the successor Trustee, such retiring Trustee shall, upon payment of its charges due under Section 607 hereof, 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) In
the case of the appointment hereunder of a successor Trustee with respect to the Debt Securities of one or more (but not all) series,
the Company, the retiring Trustee upon payment of its charges and each successor Trustee with respect to the Debt Securities of one or
more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and
which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor
Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Debt Securities of that or those series
to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Debt
Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Debt Securities of that or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental indenture, the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each 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 with respect to the Debt Securities of that or those
series to which the appointment of such successor Trustee relates; but, on the request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Debt Securities of that or those series to which the appointment of such successor Trustee relates.
(c) 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 such rights, powers and trusts referred to in paragraph (a) or (b) of this Section,
as the case may be.
(d) 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.
Section 612. Merger,
Conversion, Consolidation or Succession to Business.
Any corporation into which
the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified
and eligible under this Article, without the executing or filing of any paper or any further act on the part of any of the parties hereto.
In case any Debt Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger,
conversion, consolidation or sale to such authenticating Trustee may adopt such authentication and deliver the Debt Securities so authenticated
with the same effect as if such successor Trustee had itself authenticated such Debt Securities. In case any Debt Securities shall not
have been authenticated by such predecessor Trustee, any such successor Trustee may authenticate and deliver such Debt Securities, in
either its own name or that of its predecessor Trustee, with the full force and effect which this Indenture provides for the certificate
of authentication of the Trustee.
Section 613. Preferential
Collection of Claims Against Company.
If and when the Trustee shall
be or shall become a creditor, directly or indirectly, secured or unsecured, of the Company (or any other obligor upon the Debt Securities),
the Trustee shall be subject to the provisions of the Trust Indenture Act regarding collection of claims against the Company (or any
such other obligor).
Section 614. Authenticating
Agent.
The Trustee shall upon Company
request appoint one or more authenticating agents with respect to one or more series of Debt Securities which shall be authorized on
behalf of the Trustee in authenticating Debt Securities of such series in connection with the issue, delivery, registration of transfer,
exchange, partial redemption or repayment of such Debt Securities. Wherever reference is made in this Indenture to the authentication
of Debt Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication
on behalf of the Trustee by an authenticating agent and a certificate of authentication executed on behalf of the Trustee by an authenticating
agent. Each authenticating agent must be acceptable to the Company and must be a corporation organized and doing business under the laws
of the United States or of any State, having a combined capital and surplus of at least $1,000,000, authorized under such laws to do
a trust business and subject to supervision or examination by Federal or State authorities or the equivalent foreign authority in the
case of an authenticating agent who is not organized and doing business under the laws of the United States or of any State thereof or
the District of Columbia.
Any corporation succeeding
to the corporate agency business of an authenticating agent shall continue to be an authenticating agent without the execution or filing
of any paper or any further act on the part of the Trustee or such authenticating agent.
An authenticating agent may
at any time resign with respect to one or more series of Debt Securities by giving written notice of resignation to the Trustee and to
the Company. The Trustee may at any time terminate the agency of any authenticating agent with respect to one or more series of Debt
Securities by giving written notice of termination 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 an authenticating agent shall cease to be eligible in accordance with the provisions
of this Section, the Trustee promptly may appoint a successor authenticating agent. Any successor authenticating agent upon acceptance
of its appointment hereunder shall become vested with all rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an authenticating agent herein. No successor authenticating agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to
each authenticating agent from time to time reasonable compensation for its services under this Section, and the Trustee shall be entitled
to be reimbursed for such payment, subject to the provisions of Section 607.
The provisions of Sections 104,
111, 306, 309, 603, 604, 605 and 607 shall be applicable to any authenticating agent.
Pursuant to each appointment
made under this Section, the Debt Securities of each series covered by such appointment may have endorsed thereon, in lieu of the Trustee’s
certificate of authentication, an alternate certificate of authentication in substantially the following form:
This is one of the Debt Securities,
of the series designated herein, described in the within-mentioned Indenture.
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U.S. BANK NATIONAL ASSOCIATION,
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as Trustee
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By
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As Authenticating Agent
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By
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Authorized Signatory
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Dated
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ARTICLE SEVEN
Holders’ Lists
and Reports By Trustee and Company
Section 701. Company
to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or
cause to be furnished to the Trustee with respect to Debt Securities of each series for which it acts as Trustee:
(1) semi-annually,
not more than 15 days after the Regular Record Date in respect of the Debt Securities of such series or on May 15 and November 15
of each year with respect to each series of Debt Securities for which there are no Regular Record Dates, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders of Registered Securities as of such Regular Record Date or
May 1 or November 1, as the case may be, and
(2) at
such other times as the Trustee may request in writing, within 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 15 days prior to the time such list is furnished;
provided,
however, that if and so long as the Trustee shall be the Security Registrar, no such list need be furnished.
Section 702. 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 of Registered Securities
contained in the most recent list furnished to the Trustee as provided in Section 701 and the names and addresses of Holders of
Registered Securities received by the Trustee in its capacity as Paying Agent or Security Registrar, if so acting. The Trustee may destroy
any list furnished to it as provided in Section 701 upon receipt of a new list so furnished. The Trustee shall preserve for at least
two years the names and addresses of Holders of Bearer Securities filed with the Trustee by such Holders.
(b) The
rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Debt Securities, and
the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
(c) Every
Holder of Debt Securities or coupons, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company
nor the Trustee shall be held accountable by reason of any disclosure of information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act.
Section 703. Reports
by Trustee.
(a) Within
60 days after May 15 of each year commencing with the first May 15 after the first issuance of Debt Securities pursuant to
this Indenture and at any other time required by the Trust Indenture Act, the Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this Indenture and such other matters as may be required pursuant to the Trust Indenture Act in the
manner required by the Trust Indenture Act.
(b) A
copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which
any Debt Securities of such series are listed, with the Commission and also with the Company. The Company will notify the Trustee when
any series of Debt Securities are listed on any stock exchange.
Section 704. Reports
by Company.
The Company shall file with
the Trustee and the Commission, and transmit to Holders such information, documents and other reports, and such summaries thereof, as
may be required pursuant to the Trust Indenture Act at the time and in the manner pursuant to such Act; provided that such information,
documents or reports required to be filed with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act shall be filed with the Trustee within 15 days of filing with the Commission. Any such report or document that the Company files
with the Commission via the EDGAR system shall be deemed filed with the Trustee for purposes of this Section 704 as of the time
such documents are filed via the EDGAR system (it being understood that the Trustee shall have no responsibility for determining whether
such filings or postings have been made).
Delivery of such reports, information
and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive
notice of any information contained therein or determinable from information contained therein, including the Company’s compliance
with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer
or Lease
Section 801. Company
May Consolidate, etc. Only on Certain Terms.
The Company shall not consolidate
with or merge into any other corporation or convey, transfer or lease its properties and assets substantially as an entirety to any Person,
unless:
(1) the
corporation formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as an entirety shall be a corporation organized and existing
under the laws of the United States of America, any political subdivision thereof or any State thereof and shall expressly assume, by
an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of (and premium, if any) and interest (including all additional amounts, if any, payable pursuant to Section 1004)
on all the Debt Securities and any related coupons and the performance of every covenant of this Indenture on the part of the Company
to be performed or observed;
(2) immediately
after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time, or both, would become
an Event of Default, shall have happened and be continuing; and
(3) 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 such supplemental indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been met.
Section 802. Successor
Corporation Substituted.
Upon any consolidation with
or merger into any other corporation, or any conveyance, transfer or lease of the properties and assets of the Company substantially
as an entirety in accordance with Section 801, the successor corporation 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 had been named as the Company herein, and thereafter,
except in the case of a lease of the properties and assets of the Company substantially as an entirety, the Company (which term for this
purpose shall mean the Person named as the “Company” in the first paragraph of this instrument or any successor corporation
which shall theretofore have become such in the manner presented in this Article) shall be relieved of all obligations and covenants
under this Indenture and the Debt Securities and any coupons.
ARTICLE NINE
Supplemental Indentures
Section 901. 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 satisfactory to the Trustee, for any of the following purposes:
(1) to
evidence the succession of another entity to the Company, and the assumption by such successor of the covenants of the Company herein
and in the Debt Securities contained; or
(2) to
add to the covenants of the Company, for the benefit of the Holders of all or any series of Debt Securities or coupons (and if such covenants
are to be for the benefit of less than all series of Debt Securities or coupons, stating that such covenants are expressly being included
solely for the benefit of such series), to convey, transfer, assign, mortgage or pledge any property to or with the Trustee, or to surrender
any right or power herein conferred upon the Company; or
(3) to
add any additional Events of Default (and if such Events of Default are to be applicable to less than all series of Debt Securities,
stating that such Events of Default are expressly being included solely to be applicable to such series); or
(4) to
add to, change or eliminate any of the provisions of this Indenture to provide that Bearer Securities may be registrable as to principal,
to change or eliminate any restrictions on the payment of principal (or premium, if any) on Registered Securities or of principal (or
premium, if any) or any interest on Bearer Securities, to permit Bearer Securities to be issued in exchange for Registered Securities
of other authorized denominations or to permit or facilitate the issuance of Debt Securities in uncertificated form, provided
any such action shall not adversely affect the interests of the Holders of Debt Securities of any series or any related coupons in any
material respect; or
(5) to
change or eliminate any of the provisions of this Indenture, provided that any such change or elimination (a) shall become
effective only when there is no Debt Security Outstanding of any series created prior to the execution of such supplemental indenture
which is entitled to the benefit of such provisions or (b) shall not apply to any Debt Security Outstanding; or
(6) to
establish the form or terms of Debt Securities of any series as permitted by Sections 201 and 301; or
(7) to
evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Debt Securities of one or
more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611(b); or
(8) to
cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein,
to make any other provisions with respect to matters or questions arising under this Indenture which shall not be inconsistent with the
provisions of this Indenture, or to make any other additions to, deletions from and other changes to the provisions hereof, provided
such other provisions shall not adversely affect the interests of the Holders of Debt Securities of any series or any related coupons
in any material respect; or
(9) to
add to or change or eliminate any provision of this Indenture as shall be necessary or desirable in accordance with any amendments to
the Trust Indenture Act, provided such action shall not adversely affect the interest of Holders of Debt Securities of any series
or any related coupons in any material respect.
Section 902. Supplemental
Indentures with Consent of Holders.
With the consent of the Holders
of not less than a majority in principal amount of the Outstanding Debt Securities of all series affected by such supplemental indenture,
acting together as a class, 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
under this Indenture of such Debt Securities of such series and any related coupons; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Debt Security or coupon affected thereby,
(1) change
the Stated Maturity of the principal or any installment of principal of, or any installment of interest on, any Debt Security, or reduce
the principal amount thereof or the interest thereon or any premium payable upon redemption or repayment thereof, or change any obligation
of the Company to pay additional amounts pursuant to Section 1004 (except as contemplated by Section 801(1) and permitted
by Section 901(1)), or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502, or change any Place of Payment, or the coin or currency
in which any Debt Security or the interest thereon or any coupon is payable, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof (or, in the case of redemption or repayment, on or after the Redemption Date
or Repayment Date, as the case may be); or
(2) reduce
the percentage in principal amount of the Outstanding Debt Securities of any series, 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 certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or reduce the requirements of Section 1404
for quorum or voting; or
(3) modify
any of the provisions of this Section, Section 513 or Section 1006, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Debt Security
affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to
changes in the references to “the Trustee” and concomitant changes in this Section and Section 1006, or the deletion
of this proviso, in accordance with the requirements of Section 611(b) and 901(7); or
(4) adversely
affect the right to repayment, if any, of Debt Securities of any series at the option of the Holders thereof.
A supplemental indenture which
changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one
or more particular series of Debt Securities, or which modifies the rights of the Holders of Debt Securities of such series with respect
to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Debt Securities
of any other series.
It shall not be necessary for
any Act of Holders of the Debt Securities under this Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution
of Supplemental Indentures.
In executing, or accepting
the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise.
Section 904. Effect
of Supplemental Indentures.
Upon the execution of any supplemental
indenture under this Article, 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 Debt Securities theretofore or thereafter authenticated and delivered hereunder
and of any coupons appertaining thereto shall be bound thereby.
Section 905. Conformity
with Trust Indenture Act.
Every supplemental indenture
executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. Reference
in Debt Securities to Supplemental Indentures.
Debt Securities of any series
authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Debt Securities of any series and any related coupons so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any such supplemental indenture may be prepared and executed by the Company and authenticated
and delivered by the Trustee in exchange for Outstanding Debt Securities of such series and any related coupons.
ARTICLE TEN
Covenants
Section 1001. Payment
of Principal, Premium and Interest.
The Company covenants and agrees
for the benefit of each series of Debt Securities and any related coupons that it will duly and punctually pay the principal of (and
premium, if any) and interest on the Debt Securities and any related coupons in accordance with the terms of the Debt Securities, any
related coupons and this Indenture. Any interest due on Bearer Securities on or before Maturity, other than additional amounts, if any,
payable as provided in Section 1004 in respect of principal of (or premium, if any, on) such a Debt Security, shall be payable only
upon presentation and surrender of the several coupons for such interest installments as are evidenced thereby as they severally mature.
Section 1002. Maintenance
of Office or Agency.
The Company will maintain in
each Place of Payment for any series of Debt Securities an office or agency where Debt Securities (but, except as otherwise provided
below, unless such Place of Payment is located outside the United States, not Bearer Securities) may be presented or surrendered for
payment, where Debt Securities may be surrendered for registration of transfer or exchange and where notices and demands to or upon the
Company in respect of the Debt Securities and this Indenture may be served. If Debt Securities of a series are issuable as Bearer Securities,
the Company will maintain, subject to any laws or regulations applicable thereto, an office or agency in a Place of Payment for such
series which is located outside the United States where Debt Securities of such series and the related coupons may be presented and surrendered
for payment (including payment of any additional amounts payable on Debt Securities of such series pursuant to Section 1004); provided,
however, that if the Debt Securities of such series are listed on any stock exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying Agent in any required city located outside the United States so long as
the Debt Securities of such series are listed on such exchange. The Company will give prompt written notice to the Trustee of the location,
and any change in the location, of any such office or agency. If at any time the Company shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices or demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee its agent to receive all presentations,
surrenders, notices and demands, except that Bearer Securities of that series and the related coupons may be presented and surrendered
for payment (including payment of any additional amounts payable on Bearer Securities of that series pursuant to Section 1004) at
the place specified for the purpose pursuant to Section 301(5).
No payment of principal of,
premium or interest on Bearer Securities shall be made at any office or agency of the Company in the United States or by check mailed
to any address in the United States or by transfer to an account maintained with a bank located in the United States; provided, however,
payment of principal of and any premium and interest denominated in Dollars (including additional amounts payable in respect thereof)
on any Bearer Security may be made at an office or agency of, and designated by, the Company located in the United States if (but only
if) payment of the full amount of such principal, premium, interest or additional amounts in Dollars at all offices outside the United
States maintained for the purpose by the Company in accordance with this Indenture is illegal or effectively precluded by exchange controls
or other similar restrictions and the Trustee receives an Opinion of Counsel that such payment within the United States is legal. Unless
otherwise provided as contemplated by Section 301 with respect to any series of Debt Securities, at the option of the Holder of
any Bearer Security or related coupon, payment may be made by check in the currency designated for such payment pursuant to the terms
of such Bearer Security presented or mailed to an address outside the United States or by transfer to an account in such currency maintained
by the payee with a bank located outside the United States.
The Company may also from time
to time designate one or more other offices or agencies (in or outside of such Place of Payment) where the Debt Securities of one or
more series and any related coupons (subject to the preceding paragraph) may be presented or surrendered for any or all such purposes,
and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in each Place of Payment for any series of Debt Securities for
such purposes. The Company will give prompt written notice to the Trustee of any such designation and any change in the location of any
such other office or agency.
Section 1003. Money
for Debt Securities Payments to Be Held in Trust.
If the Company shall at any
time act as its own Paying Agent with respect to any series of Debt Securities, it will, on or before each due date of the principal
of (and premium, if any) or interest on any of the Debt Securities of such series and any related coupons, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or 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 of its
action or failure so to act.
Whenever the Company shall
have one or more Paying Agents with respect to any series of Debt Securities, it will, on or before each due date of the principal of
(and premium, if any) or interest on any of the Debt Securities of such series and any related coupons, deposit with a Paying Agent a
sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of
the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly
notify the Trustee of its action or failure so to act.
The Company will cause each
Paying Agent with respect to any series of Debt 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, that such Paying Agent will
(1) hold
all sums held by it for the payment of the principal of (and premium, if any) or interest on Debt Securities of such series and any related
coupons in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
(2) give
the Trustee notice of any default by the Company (or any other obligor upon the Debt Securities of such series or any related coupons)
in the making of any payment of principal of (and premium, if any) or interest on the Debt Securities of such series or any related coupons;
and
(3) at
any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time,
for the purpose of terminating its obligations under this Indenture with respect to Debt Securities of any series 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.
Any principal and interest
received on the Eligible Instruments deposited with the Trustee or 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 premium, if any) or interest on any Debt Security of any series
or any related coupons or any money on deposit with the Trustee or any Paying Agent representing amounts deducted from the Redemption
Price or Repayment Price with respect to unmatured coupons not presented upon redemption or exercise of the Holder’s option for
repayment pursuant to Section 1106 or 1303 and remaining unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Debt Security or any coupon appertaining thereto 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
(including the principal and interest received on Eligible Instruments deposited with the Trustee), and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, 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 mailed to each such Holder, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days from the date of such mailing, any unclaimed balance of
such money then remaining will be repaid to the Company.
Section 1004. Payment
of Additional Amounts.
If the Debt Securities of a
series provide for the payment of additional amounts, the Company will pay to the Holder of any Debt Security of any series or any coupon
appertaining thereto additional amounts upon the terms and subject to the conditions provided therein. Whenever in this Indenture there
is mentioned, in any context, the payment of the principal of (or premium, if any) or interest on, or in respect of, any Debt Security
of any series or any related coupon or the net proceeds received on the sale or exchange of any Debt Security of any series, such mention
shall be deemed to include mention of the payment of additional amounts provided for in the terms of such Debt Securities and this Section to
the extent that, in such context, additional amounts are, were or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of additional amounts (if applicable) in any provisions hereof shall not be construed
as excluding additional amounts in those provisions hereof where such express mention is not made.
If the Debt Securities of a
series provide for the payment of additional amounts, at least 10 days prior to the first Interest Payment Date with respect to
that series of Debt Securities (or if the Debt Securities of that series will not bear interest prior to Maturity, the first day on which
a payment of principal (and premium, if any) is made), and at least 10 days prior to each date of payment of principal (and premium,
if any) or interest if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate,
the Company will furnish the Trustee and the Company’s principal Paying Agent or Paying Agents, if other than the Trustee, with
an Officers’ Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of (and
premium, if any) or interest on the Debt Securities of that series shall be made to Holders of Debt Securities of that series or the
related coupons who are United States Aliens without withholding for or on account of any tax, assessment or other governmental charge
described in the Debt Securities of that series. If any such withholding shall be required, then such Officers’ Certificate shall
specify by country the amount, if any, required to be withheld on such payments to such Holders of Debt Securities or coupons and the
Company will pay to the Trustee or such Paying Agent the additional amounts, if any, required by the terms of such Debt Securities and
the first paragraph of this Section. The Company covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section.
Section 1005. Officers’
Certificate as to Default.
The Company will deliver to
the Trustee, on or before a date not more than four months after the end of each fiscal year of the Company ending after the date hereof,
an Officers’ Certificate, stating whether or not to the best knowledge of the signers thereof the Company is in default in the
performance and observance of any of the terms, provisions and conditions of this Indenture and Section 314(a)(4) of the Trust
Indenture Act, and, if the Company shall be in default, specifying all such defaults and the nature thereof of which they may have knowledge.
Section 1006. Waiver
of Certain Covenants.
The Company may omit in any
particular instance to comply with any covenant or condition applicable to the Debt Securities of any series pursuant to Section 301
unless such
covenant or condition is determined pursuant
to Section 301 not to be subject to this provision if, before the time for such compliance the Holders of at least a majority in
principal amount of all series of the Debt Securities at the time Outstanding to which such covenant or condition applies shall, acting
together as a class, by Act 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 and the duties of the Trustee in respect of any such covenant
or condition shall remain in full force and effect.
ARTICLE ELEVEN
Redemption of Debt Securities
Section 1101. Applicability
of Article.
Debt Securities of any series
which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified
as contemplated by Section 301 for Debt Securities of any series) in accordance with this Article.
Section 1102. Election
to Redeem; Notice to Trustee.
The election of the Company
to redeem any Debt Securities shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company of less
than all of the Debt Securities of any series, the Company shall, at least 45 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount
and the tenor and terms of the Debt Securities of any series to be redeemed. In the case of any redemption of Debt Securities prior to
the expiration of any restriction on such redemption provided in the terms of such Debt Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance with such restriction.
Section 1103. Selection
by Trustee of Debt Securities to be Redeemed.
Except as otherwise specified
as contemplated by Section 301 for Debt Securities of any series, if less than all the Debt Securities of any series with like tenor
and terms are to be redeemed, the particular Debt Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Debt Securities of such series with like tenor and terms 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 portions
(equal to the minimum authorized denomination for Debt Securities of such series or any integral multiple thereof which is also an authorized
denomination) of the principal amount of Registered Securities or Bearer Securities (if issued in more than one authorized denomination)
of such series of a denomination larger than the minimum authorized denomination for Debt Securities of such series.
The Trustee shall promptly
notify the Company in writing of the Debt Securities selected for redemption and, in the case of any Debt Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption of Debt Securities shall relate, in the case of any
Debt Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Debt Security which has been or
is to be redeemed.
Section 1104. Notice
of Redemption.
Notice of redemption shall
be given in the manner provided in Section 106 not less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Debt Securities to be redeemed.
All notices of redemption shall
state:
(1) the
Redemption Date;
(2) the
Redemption Price;
(3) if
less than all Outstanding Debt Securities of any series are to be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Debt Securities to be redeemed;
(4) that
on the Redemption Date the Redemption Price will become due and payable upon each such Debt Security to be redeemed, and that interest
thereon shall cease to accrue on and after said date;
(5) the
Place or Places of Payment where such Debt Securities, together in the case of Bearer Securities with all coupons, if any, appertaining
thereto maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price;
(6) that
Bearer Securities may be surrendered for payment only at such place or places which are outside the United States, except as otherwise
provided in Section 1002;
(7) that
the redemption is for a sinking fund, if such is the case; and
(8) the
CUSIP number, if any.
Notice of redemption of Debt
Securities to be redeemed 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.
Section 1105. Deposit
of Redemption Price.
On or prior to any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1003) an amount of money and/or, to the extent the Debt Securities to be redeemed are denominated
and payable in Dollars only, Eligible Instruments the payments of principal and interest on which when due (and without reinvestment
and providing no tax liability will be imposed upon the Trustee or the Holders of the Debt Securities to be redeemed) will provide money
on or prior to the Redemption Date in such amounts as will (together with any money irrevocably deposited in trust with the Trustee,
without investment) be sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Debt Securities or portions thereof which are to be redeemed on that date; provided, however, that
deposits with respect to Bearer Securities shall be made with a Paying Agent or Paying Agents located outside the United States except
as otherwise provided in Section 1002, unless otherwise specified as contemplated by Section 301.
Section 1106. Debt
Securities Payable on Redemption Date.
Notice of redemption having
been given as aforesaid, the Debt Securities to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest)
such Debt Securities shall cease to bear interest and the coupons for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such Debt Security for redemption in accordance with said notice,
such Debt Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided,
however, that installments of interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only upon presentation and surrender of coupons for such interest (at an office or agency located outside the United States except
as otherwise provided in Section 1002), and provided further, that installments of interest on Registered Securities whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Debt Securities, or one or more Predecessor
Securities, registered as such on the relevant Record Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered
for redemption shall not be accompanied by all related coupons maturing after the Redemption Date, such Bearer Security may be paid after
deducting from the Redemption Price an amount equal to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require
to save each of them and any Paying Agent harmless. If thereafter the Holder of such Bearer Security shall surrender to the Trustee or
any Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted without interest thereon; provided, however, that interest represented by
coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside of the United States
except as otherwise provided in Section 1002.
If any Debt Security called
for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the Debt Security.
Section 1107. Debt
Securities Redeemed in Part.
Any Registered Security which
is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company, the Security Registrar or the
Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, the Security Registrar
and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Debt Security without service charge, a new Registered Security or Registered
Securities of the same series and of like tenor and terms, of any authorized denominations as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of the Debt Security so surrendered.
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability
of Article.
The provisions of this Article shall
be applicable to any sinking fund for the retirement of Debt Securities of a series except as otherwise specified as contemplated by
Section 301 for Debt Securities of such series.
The minimum amount of any sinking
fund payment provided for by the terms of Debt Securities of any series is herein referred to as a “mandatory sinking fund payment”,
and any payment in excess of such minimum amount provided for by the term of Debt Securities of any series is herein referred to as an
“optional sinking fund payment”. If provided for by the terms of Debt Securities of any series, the amount of any sinking
fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption
of Debt Securities of any series as provided for by the terms of Debt Securities of such series.
Section 1202. Satisfaction
of Sinking Fund Payments with Debt Securities.
The Company (1) may deliver
Outstanding Debt Securities of a series (other than any previously called for redemption), together in the case of any Bearer Securities
of such series with all unmatured coupons appertaining thereto, and (2) may apply as a credit Debt Securities of a series which
have been redeemed either at the election of the Company pursuant to the terms of such Debt Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such Debt Securities, in each case in satisfaction of all or any part
of any sinking fund payment with respect to the Debt Securities of such series required to be made pursuant to the terms of such Debt
Securities as provided for by the terms of such series; provided that such Debt Securities have not been previously so credited.
Such Debt Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Debt Securities
for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If as
a result of the delivery or credit of Debt Securities in lieu of cash payments pursuant to this Section 1202, the principal amount
of Debt Securities to be redeemed in order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call
Debt Securities for redemption, except upon Company Request, and such cash payment shall be held by the Trustee or a Paying Agent and
applied to the next succeeding sinking fund payment, provided, however, that the Trustee or such Paying Agent shall at the request
of the Company from time to time pay over and deliver to the Company any cash payment so being held by the Trustee or such Paying Agent
upon delivery by the Company to the Trustee of Debt Securities purchased by the Company having an unpaid principal amount equal to the
cash payment requested to be released to the Company.
Section 1203. Redemption
of Debt Securities for Sinking Fund.
Not less than 60 days prior
to each sinking fund payment date for any series of Debt Securities (unless a shorter period shall be satisfactory to the Trustee), the
Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash, the portion
thereof, if any, which is to be satisfied by crediting Debt Securities of that series pursuant to Section 1202 and the basis for
any such credit and, prior to or concurrently with the delivery of such Officers’ Certificate, will also deliver to the Trustee
any Debt Securities to be so credited and not theretofore delivered to the Trustee. Not less than 30 days (unless a shorter period shall
be satisfactory to the Trustee) before each such sinking fund payment date the Trustee shall select the Debt Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Debt Securities shall be made upon the terms and in the manner stated in Sections 1105, 1106 and 1107.
ARTICLE THIRTEEN
Repayment at the Option of Holders
Section 1301. Applicability
of Article.
Debt Securities of any series
which are repayable at the option of the Holders thereof before their Stated Maturity shall be repaid in accordance with their terms
and (except as otherwise specified pursuant to Section 301 for Debt Securities of such series) in accordance with this Article.
Section 1302. Repayment
of Debt Securities.
Each Debt Security which is
subject to repayment in whole or in part at the option of the Holder thereof on a Repayment Date shall be repaid at the applicable Repayment
Price together with interest accrued to such Repayment Date as specified pursuant to Section 301.
Section 1303. Exercise
of Option; Notice.
Each Holder desiring to exercise
such Holder’s option for repayment shall, as conditions to such repayment, surrender the Debt Security to be repaid in whole or
in part together with written notice of the exercise of such option at any office or agency of the Company in a Place of Payment, not
less than 30 nor more than 45 days prior to the Repayment Date; provided, however, that surrender of Bearer Securities together
with written notice of exercise of such option shall be made at an office or agency located outside the United States except as otherwise
provided in Section 1002. Such notice, which shall be irrevocable, shall specify the principal amount of such Debt Security to be
repaid, which shall be equal to the minimum authorized denomination for such Debt Security or an integral multiple thereof, and shall
identify the Debt Security to be repaid and, in the case of a partial repayment of the Debt Security, shall specify the denomination
or denominations of the Debt Security or Debt Securities of the same series to be issued to the Holder for the portion of the principal
of the Debt Security surrendered which is not to be repaid.
If any Bearer Security surrendered
for repayment shall not be accompanied by all unmatured coupons and all matured coupons in default, such Bearer Security may be paid
after deducting from the Repayment Price an amount equal to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require
to save each of them and any Paying Agent harmless. If thereafter the Holder of such Bearer Security shall surrender to the Trustee or
any Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Repayment Price, such Holder shall
be entitled to receive the amount so deducted without interest thereon; provided, however, that interest represented by coupons
shall be payable only at an office or agency located outside the United States except as otherwise provided in Section 1002.
The Company shall execute and
the Trustee shall authenticate and deliver without service charge to the Holder of any Registered Security so surrendered a new Registered
Security or Securities of the same series, of any authorized denomination specified in the foregoing notice, in an aggregate principal
amount equal to any portion of the principal of the Registered Security so surrendered which is not to be repaid.
The Company shall execute and
the Trustee shall authenticate and deliver without service charge to the Holder of any Bearer Security so surrendered a new Registered
Security or Securities or new Bearer Security or Securities (and all related unmatured coupons and matured coupons in default) or any
combination thereof of the same series of any authorized denomination or denominations specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Debt Security so surrendered which is not to be paid; provided, however,
that the issuance of a Registered Security therefor shall be subject to applicable laws and regulations, including provisions of
the United States Federal income tax laws and regulations in effect at the time of the exchange; neither the Company, the Trustee nor
the Security Registrar shall issue Registered Securities for Bearer Securities if it has received an Opinion of Counsel that as a result
of such issuance the Company would suffer adverse consequences under the United States Federal income tax laws then in effect and the
Company has delivered to the Trustee a Company Order directing the Trustee not to make such issuances thereafter unless and until the
Trustee receives a subsequent Company Order to the contrary. The Company shall deliver copies of such Company Order to the Security Registrar.
For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the repayment of Debt Securities shall relate, in the case of any Debt
Security repaid or to be repaid only in part, to the portion of the principal of such Debt Security which has been or is to be repaid.
Section 1304. Election
of Repayment by Remarketing Entities.
The Company may elect, with
respect to Debt Securities of any series which are repayable at the option of the Holders thereof before their Stated Maturity, at any
time prior to any Repayment Date to designate one or more Remarketing Entities to purchase, at a price equal to the Repayment Price,
Debt Securities of such series from the Holders thereof who give notice and surrender their Debt Securities in accordance with Section 1303.
Section 1305. Securities
Payable on the Repayment Date.
Notice of exercise of the option
of repayment having been given and the Debt Securities so to be repaid having been surrendered as aforesaid, such Debt Securities shall,
unless purchased in accordance with Section 1304, on the Repayment Date become due and payable at the price therein specified and
from and after the Repayment Date such Debt Securities shall cease to bear interest and shall be paid on the Repayment Date, and the
coupons for such interest appertaining to Bearer Securities so to be repaid, except to the extent provided above, shall be void, unless
the Company shall default in the payment of such price in which case the Company shall continue to be obligated for the principal amount
of such Debt Securities and shall be obligated to pay interest on such principal amount at the rate borne by such Debt Securities from
time to time until payment in full of such principal amount.
ARTICLE FOURTEEN
Meetings of Holders of Debt Securities
Section 1401. Purposes
for Which Meetings May Be Called.
If Debt Securities of a series
are issuable in whole or in part as Bearer Securities, a meeting of Holders of Debt Securities of such series may be called at any time
and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent,
waiver or other Act provided by this Indenture to be made, given or taken by Holders of Debt Securities of such series.
Section 1402. Call,
Notice and Place of Meetings.
(a) The
Trustee may at any time call a meeting of Holders of Debt Securities of any series issuable as Bearer Securities for any purpose specified
in Section 1401, to be held at such time and at such place as the Trustee shall determine. Notice of every meeting of Holders of
Debt Securities of any series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken
at such meeting, shall be given, in the manner provided in Section 106, not less than 21 nor more than 180 days prior to the date
fixed for the meeting.
(b) In
case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% in principal amount of the Outstanding Debt
Securities of any series shall have requested the Trustee to call a meeting of the Holders of Debt Securities of such series for any
purpose specified in Section 1401, by written request setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after receipt of such
request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders of Debt Securities
of such series in the amount above specified, as the case may be, may determine the time and the place for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in subsection (a) of this Section.
Section 1403. Persons
Entitled to Vote at Meetings.
To be entitled to vote at any
meeting of Holders of Debt Securities of any series, a Person shall be (1) a Holder of one or more Outstanding Debt Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Debt
Securities of such series by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting
of Holders of Debt Securities of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its counsel.
Section 1404. Quorum;
Action.
The Persons entitled to vote
a majority in principal amount of the Outstanding Debt Securities of a series shall constitute a quorum for a meeting of Holders of Debt
Securities of such series. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Debt Securities of such series, be dissolved. In the absence of a quorum in any other case the
meeting may be adjourned for a period of not less than 10 days as determined by the chairperson of the meeting prior to the adjournment
of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairperson of the meeting prior to the adjournment of such adjourned meeting. Notice of
this reconvening of any adjourned meeting shall be given as provided in Section 1402(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned
meeting shall state expressly the percentage, as provided above, of the principal amount of the Outstanding Debt Securities of such series
which shall constitute a quorum.
Except as limited by the proviso
to Section 902, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid
may be adopted only by the affirmative vote of the Holders of a majority in principal amount of the Outstanding Debt Securities of that
series, provided however, that, except as limited by the proviso to Section 902, any resolution with respect to any request,
demand, authorization, direction, notice, consent, waiver or other Act which this Indenture expressly provides may be made, given or
taken by the Holders of a specified percentage, which is less than a majority, in principal amount of the Outstanding Debt Securities
of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount of the Outstanding Debt Securities of that series.
Any resolution passed or decision
taken at any meeting of Holders of Debt Securities of any series duly held in accordance with this Section shall be binding on all
the Holders of Debt Securities of such series and the related coupons, whether or not present or represented at the meeting.
Section 1405. Determination
of Voting Rights; Conduct and Adjournment of Meetings.
(a) Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Debt Securities of such series in regard to proof of the holding of Debt Securities of such series and of the appointment
of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except
as otherwise permitted or required by any such regulations, the holding of Debt Securities shall be proved in the manner specified in
Section 104 and the appointment of any proxy shall be proved in the manner specified in Section 104 or, in the case of Bearer
Securities, by having the signature of the person executing the proxy witnessed or guaranteed by any trust company, bank or banker authorized
by Section 104 to certify to the holding of Bearer Securities. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 104 or other proof.
(b) The
Trustee shall, by an instrument in writing, appoint a temporary chairperson of the meeting, unless the meeting shall have been called
by the Company or by Holders of Debt Securities as provided in Section 1402(b), in which case the Company or the Holders of Debt
Securities of the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairperson. A permanent chairperson
and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Debt Securities of such series represented at the meeting.
(c) At
any meeting each Holder of a Debt Security of such series or proxy shall be entitled to vote based on the principal amount of the Outstanding
Debt Securities of such series held or represented by such Holder; provided, however, that no vote shall be cast or counted at
any meeting in respect of any Debt Security challenged as not Outstanding and ruled by the chairperson of the meeting not to be Outstanding.
The chairperson of the meeting shall have no right to vote, except as a Holder of a Debt Security of such series or proxy.
(d) Any
meeting of Holders of Debt Securities of any series duly called pursuant to Section 1402 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Debt Securities of such series represented
at the meeting; and the meeting may be held as so adjourned without further notice.
Section 1406. Counting
Votes and Recording Action of Meetings.
The vote upon any resolution
submitted to any meeting of Holders of Debt Securities of any series shall be by written ballots on which shall be subscribed the signatures
of the Holders of Debt Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Debt Securities of such series held or represented by them. The permanent chairperson of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in triplicate of all votes cast at the meeting. A record, at least in triplicate,
of the proceedings of each meeting of Holders of Debt Securities of any series shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits
by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was
given as provided in Section 1402 and, if applicable, Section 1401. Each copy shall be signed and verified by the affidavits
of the permanent chairperson and secretary of the meeting and one such copy shall be delivered to the Company, and another to the Trustee
to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
ARTICLE FIFTEEN
Defeasance
Section 1501. Termination
of Company’s Obligations.
If this Section 1501 is
specified, as contemplated by Section 301, to be applicable to any series of Debt Securities and if the Company deposits irrevocably
in trust with the Trustee money and/or, to the extent such Debt Securities are denominated and payable in Dollars only, Eligible Instruments
the payments of principal and interest on which when due (and without reinvestment and providing no tax liability will be imposed upon
the Trustee or the Holders of such Debt Securities) will provide money in such amounts as will (together with any money irrevocably deposited
in trust with the Trustee, without investment) be sufficient to pay the principal of (and premium, if any) and any installment of principal
of (and premium, if any) or interest when due on the Debt Securities of such series and any coupons appertaining thereto and any mandatory
sinking fund, repayment or analogous payments thereon on the scheduled due dates therefor at the Stated Maturity thereof, the Company’s
obligations under any covenant determined pursuant to Section 301 to be subject to this Section shall terminate with respect
to the Debt Securities of the series for which such deposit was made; provided, however, that (i) no Event of Default with
respect to the Debt Securities of such series under Section 501(5) or 501(6) or event that with notice or lapse of time
or both would constitute such an Event of Default shall have occurred and be continuing on such date, (ii) such deposit will not
result in a breach of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party
or by which it is bound, and (iii) such termination shall not relieve the Company of its obligations under the Debt Securities of
such series and this Indenture to pay when due the principal of (and premium, if any) and interest and additional amounts on such Debt
Securities and any coupons appertaining thereto if such Debt Securities or coupons are not paid (or payment is not provided for) when
due from the money and Eligible Instruments (and the proceeds thereof) so deposited.
It shall be a condition to
the deposit of cash and/or Eligible Instruments and the termination of the Company’s obligations pursuant to the provisions of
this Section with respect to the Debt Securities of any series under any covenant determined pursuant to Section 301 to be
subject to this Section that the Company deliver to the Trustee (i) an Opinion of Counsel to the effect that: (a) Holders
of Debt Securities of such series and any coupons appertaining thereto will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and termination and (b) such Holders (and future Holders) will be subject to tax in the same
amount, manner and timing as if such deposit and termination had not occurred, (ii) an Officers’ Certificate to the effect
that under the laws in effect on the date such money and/or Eligible Instruments are deposited with the Trustee, the amount thereof will
be sufficient, after payment of all Federal, state and local taxes in respect thereof payable by the Trustee, to pay principal (and premium,
if any) and interest when due on the Debt Securities of such series and any coupons appertaining thereto; and (iii) an Officers’
Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the defeasance contemplated
in this Section have been complied with.
It shall be an additional condition
to the deposit of cash and/or Eligible Instruments and the termination of the Company’s obligations pursuant to the provisions
of this Section under any covenant determined pursuant to Section 301 to be subject to this Section, with respect to the Debt
Securities of any series then listed, that the Company deliver an Opinion of Counsel that the Debt Securities of such series will not
be delisted as a result of such deposit and termination.
After a deposit as provided
herein, the Trustee shall, upon Company Request, acknowledge in writing the discharge of the Company’s obligations pursuant to
the provisions of this Section with respect to the Debt Securities of such series under any covenant determined pursuant to Section 301
to be subject to this Section.
Section 1502. Repayment
to Company.
The Trustee and any Paying
Agent shall promptly pay to the Company upon Company Request any money or Eligible Instruments not required for the payment of the principal
of (and premium, if any) and interest on the Debt Securities of any series and any related coupons for which money or Eligible Instruments
have been deposited pursuant to Section 1501 held by them at any time.
The Trustee and any Paying
Agent shall promptly pay to the Company upon Company Request any money held by them for the payment of principal (and premium, if any)
and interest that remains unclaimed for two years after the Maturity of the Debt Securities for which a deposit has been made pursuant
to Section 1501. After such payment to the Company, the Holders of the Debt Securities of such series and any related coupons shall
thereafter, as unsecured general creditors, look only to the Company for the payment thereof.
Section 1503. Indemnity
for Eligible Instruments.
The Company shall pay and shall
indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the deposited Eligible Instruments or the principal
or interest received on such Eligible Instruments.
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
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IMEDIA
BRANDS, INC.
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By
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/s/
Timothy A. Peterman
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Its
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Chief
Executive Officer
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U.S.
BANK NATIONAL ASSOCIATION
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By
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/s/
Benjamin J. Krueger
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Its
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Vice
President
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EXHIBIT A-1
Form of Certificate of Beneficial Ownership
by a
Non-United States Person or by Certain Other Persons
Certificate
IMEDIA BRANDS, INC.
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made
to the Indenture dated as of September 28, 2021 (the “Indenture”) between iMedia Brands, Inc. and U.S. Bank National
Association (the “Trustee”), covering the above-captioned Debt Securities. This is to certify that as of the date hereof,
_______________________ principal amount of Debt Securities credited to you for our account (i) is owned by persons that are not
United States Persons, as defined below; (ii) is owned by United States Persons that are (a) foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) (“financial institutions”)
purchasing for their own account or for resale, or (b) United States Persons who acquired the Debt Securities through foreign branches
of United States financial institutions and who hold the Debt Securities through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such United States financial institution encloses herewith a certificate in the form
of Exhibit A-2 to the Indenture); or (iii) is owned by United States or foreign financial institutions for purposes of resale
during the restricted period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), which United States or foreign
financial institutions described in clause (iii) above (whether or not also described in clause (i) or (ii)) certify that they
have not acquired the Debt Securities for purposes of resale directly or indirectly to a United States Person or to a person within the
United States or its possessions.
[Insert if certificate does
not relate to an interest payment--We undertake to advise you by tested telex followed by written confirmation if the above statement
as to beneficial ownership is not correct on the date of delivery of the above-captioned Debt Securities in bearer form as to all of
such Debt Securities with respect to such of said Debt Securities as then appear in your books as being held for our account.] We understand
that this certificate is required in connection with United States tax laws. We irrevocably authorize you to produce this certificate
or a copy hereof to any interested party in any administrative or legal proceedings with respect to the matters covered by this certificate.
“United States Person” shall mean a citizen or resident of the United States of America (including the District of Columbia),
a corporation, partnership or other entity created or organized in or under the laws of the United States or any political subdivision
thereof or an estate or trust that is subject to United States Federal income taxation regardless of the source of its income.
[This certificate excepts
and does not relate _______ to principal amount of Debt Securities credited to you for our account and to which we are not now able to
make the certification set forth above. We understand that definitive Debt Securities cannot be delivered and interest cannot be paid
until we are able to so certify with respect to such principal amount of Debt Securities.]*
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Dated:
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[To be dated on or after
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_______________ (the date
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determined as provided in the
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Indenture)]
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[Name of Person Entitled to Receive Bearer Security]
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(Authorized Signatory)
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Name:
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Title:
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*Delete if inappropriate
EXHIBIT A-2
Form of Certificate of Status as a
Foreign Branch of a United States Financial Institution
Certificate
IMEDIA BRANDS, INC.
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made
to the Indenture dated as of September 28, 2021 (the “Indenture”), between iMedia Brands, Inc. and U.S. Bank National
Association, relating to the offering of the above-captioned Debt Securities (the “Debt Securities”). Unless herein defined,
terms used herein have the same meaning as given to them in the Indenture.
The undersigned represents
that it is a branch located outside the United States of a United States securities clearing organization, bank or other financial institution
(as defined in U.S. Treasury Regulation Section 1.165-12(c)(1)(v)) that holds customers’ securities in the ordinary course
of its trade or business and agrees, and authorizes you to advise the issuer or the issuer’s agent, that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the regulations thereunder and
is not purchasing for resale directly or indirectly to a United States Person or to a person within the United States or its possessions.
We undertake to advise you by tested telex followed by written confirmation if the statement in the immediately preceding sentence is
not correct on the date of delivery of the above-captioned Debt Securities in bearer form.
We understand that this certificate
is required in connection with the United States tax laws. We irrevocably authorize you to produce this certificate or a copy hereof
to any interested party in any administrative or legal proceedings with respect to the matters covered by this certificate.
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Dated:
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[To
be dated on or after
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_________________
(the date
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determined
as provided in the Indenture)]
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[Name
of Person Entitled to Receive Bearer Security]
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(Authorized
Signatory)
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Name:
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Title:
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EXHIBIT B
Form of Certificate to be Given by Euroclear
and Clearstream
in Connection with the Exchange
of All or a Portion of a
Temporary Global Security
or to Obtain
Interest Prior to Exchange
Certificate
IMEDIA BRANDS, INC.
[Insert title or sufficient description of Debt
Securities to be delivered]
We refer to that portion,
, of the Global Security representing the above-captioned issue [which is herewith submitted to be exchanged for definitive Debt Securities]*
[for which we are seeking to obtain payment of interest]* (the “Submitted Portion”). This is to certify, pursuant to the
Indenture dated as of September 28, 2021 (the “Indenture”) between iMedia Brands, Inc. and U.S. Bank National Association
(the “Trustee”), that we have received in writing, by tested telex or by electronic transmission from member organizations
with respect to each of the persons appearing in our records as being entitled to a beneficial interest in the Submitted Portion a Certificate
of Beneficial Ownership by a Non-United States Person or by Certain Other Persons [and, in some cases, a Certificate of Status as a Foreign
Branch of a United States Financial Institution, authorizing us to inform the issuer or the issuer’s agent that it will comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the regulations thereunder]*
substantially in the form of Exhibit A-1 [and A-2]* to the Indenture.
We hereby request that you
deliver to the office of _________________________ in ______________________ definitive Bearer Securities in the denominations on the
attached Schedule A.
We further certify that as
of the date hereof we have not received any notification from any of the persons giving such certificates to the effect that the statements
made by them with respect to any part of the Submitted Portion are no longer true and cannot be relied on as of the date hereof.
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[
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________________________
, as
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Operator
of the Euroclear System] [Clearstream]
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By:
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*Delete if inappropriate.
Exhibit 4.2
iMedia Brands, Inc.
and
U.S. Bank National Association,
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of September 28, 2021
to the Indenture dated as of September 28,
2021
8.50% Senior Notes due 2026
Table
of Contents
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Page
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ARTICLE 1 APPLICATION OF FIRST SUPPLEMENTAL INDENTURE
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1
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Section 1.1
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Application of First Supplemental Indenture
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1
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ARTICLE 2 DEFINITIONS
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2
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Section 2.1
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Certain Terms Defined in the Base Indenture
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2
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Section 2.2
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Definitions
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2
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ARTICLE 3 FORM AND TERMS OF THE NOTES
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3
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Section 3.1
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Form and Dating
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3
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Section 3.2
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Terms of the Notes
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3
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Section 3.3
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Optional Redemption
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4
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Section 3.4
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Mandatory Redemption
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4
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Section 3.5
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Notice and Method of Redemption
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5
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ARTICLE 4 DEFEASANCE AND COVENANT DEFEASANCE
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5
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Section 4.1
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Applicability of Sections 402 and 403 and Article Fifteen of the Base Indenture
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5
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Section 4.2
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Company’s Option to Effect Defeasance or Covenant Defeasance
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5
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Section 4.3
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Defeasance and Discharge
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5
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Section 4.4
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Covenant Defeasance
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5
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Section 4.5
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Conditions to Defeasance or Covenant Defeasance
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6
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Section 4.6
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Deposited Money and Eligible Instruments to Be Held in Trust; Other Miscellaneous Provisions
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7
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Section 4.7
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Reinstatement
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7
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ARTICLE 5 CERTAIN COVENANTS
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7
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Section 5.1
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Merger, Consolidation or Sale of Assets
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7
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Section 5.2
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Reporting
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8
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Section 5.3
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Payment of Taxes
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8
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ARTICLE 6 REMEDIES
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9
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Section 6.1
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Applicability of Article Five of the Base Indenture
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9
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Section 6.2
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Events of Default
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9
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Section 6.3
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Acceleration
of Maturity; Rescission and Annulment
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10
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Section 6.4
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Collection of Indebtedness and Suits for Enforcement by Trustee
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11
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Section 6.5
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Trustee May File Proofs of Claim
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11
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Section 6.6
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Trustee May Enforce Claims Without Possession of Notes
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12
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Section 6.7
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Application of Money Collected
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12
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Section 6.8
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Limitation of Suits
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12
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Section 6.9
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Unconditional Right of Holders to Receive Principal, Premium and Interest
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13
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Section 6.10
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Restoration of Rights and Remedies
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13
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Section 6.11
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Rights and Remedies Cumulative
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13
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Section 6.12
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Delay or Omission Not Waiver
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13
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Section 6.13
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Control by Holders
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13
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Section 6.14
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Waiver of Past Defaults
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14
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Section 6.15
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Undertaking for Costs
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14
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Section 6.16
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Waiver of Usury, Stay or Extension Laws
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14
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ARTICLE 7 MISCELLANEOUS
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15
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Section 7.1
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Trust Indenture Act Controls
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15
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Section 7.2
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New York Law to Govern
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15
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Section 7.3
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Counterparts
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15
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Section 7.4
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Severability
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15
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Section 7.5
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Ratification
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15
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Section 7.6
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Effectiveness
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15
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Section 7.7
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Trustee Makes No Representation
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15
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Section 7.8
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Electronic Means
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16
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FIRST
SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE
(this “First Supplemental Indenture”), dated as of September 28, 2021, between iMedia Brands, Inc., a Minnesota
corporation (the “Company”), and U.S. Bank National Association, as trustee (the “Trustee”).
RECITALS
OF THE COMPANY
WHEREAS,
the Company and the Trustee executed and delivered an Indenture, dated as of even date herewith (the “Base Indenture,”
together with this First Supplemental Indenture, the “Indenture”), to provide for the issuance by the Company from
time to time of Debt Securities to be issued in one or more series as provided in the Indenture;
WHEREAS,
Section 901 of the Base Indenture provides, among other things, that the Company and the Trustee may enter into indentures supplemental
to the Base Indenture to establish the form of any Debt Security, as permitted by Section 201 of the Base Indenture, and to provide
for the issuance of the Notes (as defined below), as permitted by Section 301 of the Base Indenture, and to set forth the terms thereof;
WHEREAS,
the Company desires to execute this First Supplemental Indenture, pursuant to Section 201 of the Base Indenture, to establish
the form and, pursuant to Section 301 of the Base Indenture, to provide for the issuance of a series of its senior notes designated
as its 8.50% Senior Notes due 2026 (the “Notes”), in an initial aggregate principal amount of $80,000,000, which
are a series of Debt Securities as referred to in Section 301 of the Base Indenture;
WHEREAS,
the Company has requested and hereby requests that the Trustee execute and deliver this First Supplemental Indenture;
WHEREAS,
the execution and delivery of this First Supplemental Indenture has been duly authorized by the Company and all things necessary
have been done by the Company to make this First Supplemental Indenture, when executed and delivered by the Company, a valid and binding
supplement to the Indenture and agreement of the Company;
WHEREAS,
all things necessary have been done by the Company to make the Notes, when executed by the Company and authenticated and delivered
by the Trustee in accordance with the provisions of the Indenture, the valid and binding obligations of the Company; and
WHEREAS,
all conditions precedent provided for in the Indenture relating to the execution and delivery of this First Supplemental Indenture have
been complied with.
NOW,
THEREFORE, in consideration of the premises stated herein and the purchase of the Notes by the Holders thereof, the Company
and the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective Holders from time to time of the
Notes as follows:
ARTICLE 1
APPLICATION OF FIRST SUPPLEMENTAL INDENTURE
Section 1.1 Application
of First Supplemental Indenture.
Notwithstanding any
other provision of this First Supplemental Indenture, all provisions of this First Supplemental Indenture are expressly and solely
for the benefit of the Holders of the Notes, and any such provisions shall not be deemed to apply to any other Debt Securities
issued under the Base Indenture and shall not be deemed to amend, modify or supplement the Base Indenture for any purpose other than
with respect to the Notes. Unless otherwise expressly specified, references in this First Supplemental Indenture to specific
Article numbers or Section numbers refer to Articles and Sections contained in this First Supplemental Indenture and not
the Base Indenture or any other document. All Initial Notes and Additional Notes, if any, shall be treated as a single class for all
purposes of the Indenture, including waivers, amendments, redemptions and offers to purchase.
ARTICLE 2
DEFINITIONS
Section 2.1 Certain
Terms Defined in the Base Indenture.
For purposes of this First
Supplemental Indenture, all capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Base Indenture.
Section 2.2 Definitions.
For the benefit of the Holders
of the Notes, the following terms shall have the meanings set forth in this Section 2.2:
“Additional Notes”
has the meaning specified in Section 3.2(b) of this First Supplemental Indenture.
“Authorized Officers”
has the meaning specified in Section 7.8 of this First Supplemental Indenture.
“Default”
means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.
“Electronic Means”
shall mean the following communications methods: e-mail, facsimile transmission, secure electronic transmission containing applicable
authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee
as available for use in connection with its services under the Base Indenture, as supplemented by this First Supplemental Indenture.
“Event of Default,”
as used in the Base Indenture and this First Supplemental Indenture, has the meaning specified in Section 6.2 of this First Supplemental
Indenture.
“Global Notes”
means the Notes in the form of Global Securities issued to the Depositary or its nominee, substantially in the form of Exhibit A.
“Initial Notes”
has the meaning specified in Section 3.2(b) of this First Supplemental Indenture.
“Instructions”
has the meaning specified in Section 7.8 of this First Supplemental Indenture.
“Investment Company
Act” means the Investment Company Act of 1940, as amended.
“Mandatory
Redemption Event” means a failure by the Company or any subsidiary to acquire all outstanding shares of capital stock
of 123tv Invest GmbH and 123tv Holding GmbH within 180 days after the issue date of the Initial Notes.
“Notes”
has the meaning specified in the recitals of this First Supplemental Indenture.
ARTICLE 3
FORM AND TERMS OF THE NOTES
Section 3.1 Form and
Dating.
(a) Forms. The
Notes and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A attached hereto.
The Notes shall be executed on behalf of the Company by one of the Persons set forth in Section 303 of the Base Indenture. The
Notes may have notations, legends or endorsements required by law, stock exchange rules or usage. Each Note shall be dated the
date of its authentication. The Notes and any beneficial interest in the Notes shall be in minimum denominations of $25 and integral
multiples of $25 in excess thereof.
(b) Note
Terms and Notations. The terms and notations contained in the Notes shall constitute, and are hereby expressly made, a part of the
Indenture, and the Company and the Trustee, by their execution and delivery of this First Supplemental Indenture, expressly agree to such
terms and provisions and to be bound thereby.
(c) Global
Notes. The Notes shall be issued initially in the form of fully registered Global Securities, which shall be deposited on behalf of
the purchasers of the Notes represented thereby with, and the Company has initially appointed as Depositary, The Depository Trust Company,
New York, New York or its custodian and registered in the name of Cede & Co., the Depositary’s nominee, duly executed by
the Company and authenticated by the Trustee.
(d) Book-Entry
Provisions. This Section 3.1(d) shall apply only to the Global Notes deposited with or on behalf of the Depositary. The
Company shall execute and the Trustee shall, in accordance with this Section 3.1(d), authenticate and deliver the Global Notes that
shall be registered in the name of the Depositary or the nominee of the Depositary and shall be delivered by the Trustee to the Depositary
or its custodian.
(e) Security
Registrar and Paying Agent. The Company initially appoints the Trustee as Security Registrar under the Indenture and as Paying Agent
for the payment of the principal of (and premium, if any) and interest on the Notes and the Corporate Trust Office of the Trustee is hereby
designated as the Place of Payment where the Notes may be presented for payment.
Section 3.2 Terms
of the Notes.
The following terms relating
to the Notes are hereby established:
(a) Title.
The Notes shall constitute a series of Debt Securities having the title “8.50% Senior Notes due 2026.”
(b) Principal
Amount. The aggregate principal amount of the Notes that may be initially authenticated and delivered under the Indenture (the “Initial
Notes”) shall be $80,000,000 (except for Notes authenticated and delivered upon registration of, transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Sections 304, 305, 306, 906 or 1107 of the Base Indenture). The Company may from time to time,
without the consent of the Holders of Notes, issue additional Notes (in any such case “Additional Notes”) having the
same ranking and terms as to status, redemption or otherwise (except for the price to public, the issue date and, if applicable, the initial
interest accrual date and the initial interest payment date) that shall constitute a single fungible series with the Initial Notes. Any
Additional Notes and the Initial Notes shall constitute a single series under the Indenture and all references to the Notes shall include
the Initial Notes and any Additional Notes unless the context otherwise requires.
(c) Maturity
Date. The entire outstanding principal amount of the Notes shall be payable on September 30, 2026 (the “Maturity Date”).
(d) Interest
Rate. The rate at which the Notes shall bear interest shall be 8.50% per annum; the date from which interest shall accrue on the
Notes shall be September 28, 2021, or the most recent Interest Payment Date to which interest has been paid or provided for;
the Interest Payment Dates for the Notes shall be March 31, June 30, September 30 and December 31 of each year
and on the Maturity Date, beginning on December 31, 2021; the interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date, will be paid, in immediately available funds, to the Persons in whose names the Notes (or one or more
Predecessor Securities) are registered (which shall initially be the Depositary) at the close of business on the Regular Record Date
for such interest, which shall be the March 15, June 15, September 15 or December 15 (whether or not a Business
Day), as the case may be, immediately preceding such Interest Payment Date; interest payable on the Maturity Date will be paid to
the Persons in whose names the Notes (or one or more Predecessor Securities) are registered on the Maturity Date. Interest shall be
computed on the basis of a 360-day year comprised of twelve 30-day months. For so long as the Notes are represented in global form
by one or more Global Securities, all payments of principal (and premium, if any) and interest shall be made by wire transfer of
immediately available funds to the Depositary or its nominee, as the case may be, as the registered owner of the Global Security
representing such Notes. In the event that definitive Notes shall have been issued, all payments of principal (and premium, if any)
and interest shall be made by wire transfer of immediately available funds to the accounts of the registered Holders thereof;
provided, that the Company may elect to make such payments at the Corporate Trust Office of the Trustee; and provided further, that
the Company may at its option pay interest by check to the registered address of each Holder of a definitive Note.
(e) Currency.
The currency of denomination of the Notes is United States Dollars. Payment of principal of and interest and premium, if any, on the Notes
shall be made in United States Dollars.
(f) Sinking
Fund. The Notes are not subject to any sinking fund.
(g) Additional
Interest. At the Company’s election, the sole remedy with respect to an Event of Default due to a failure to comply with reporting
requirements under the Trust Indenture Act or under Section 5.2 of this First Supplemental Indenture, for the first 180 calendar
days after the occurrence of such Event of Default, consists exclusively of the right to receive additional interest on the Notes at an
annual rate equal to (1) 0.25% for the first 90 calendar days after such default and (2) 0.50% for calendar days 91 through
180 after such default. On the 181st day after such Event of Default, if such violation is not cured or waived, the Trustee or the Holders
of not less than 25% of the outstanding principal amount of the Notes, by a notice in writing to the Company (and to the Trustee if given
by such Holders), may declare the principal, together with accrued and unpaid interest, if any, on the Notes to be due and payable immediately.
If the Company chooses to pay such additional interest, the Company must notify the Trustee and the Holders of the Notes by certificate
of the Company’s election at any time on or before the close of business on the first Business Day following the Event of Default.
Section 3.3 Optional
Redemption.
(a) The
Notes shall be redeemable as a whole or in part, at any time and from time to time at the Company’s option (i) on or after
September 30, 2023 and prior to September 30, 2024, at a price equal to 25.75 per Note, plus accrued and unpaid interest to,
but excluding, the Redemption Date, (ii) on or after September 30, 2024 and prior to September 30, 2025, at a price equal
to $25.50 per Note, plus accrued and unpaid interest to, but excluding, the Redemption Date and (iii) on or after September 30,
2025 and prior to maturity, at a price equal to $25.25 per Note, plus accrued and unpaid interest to, but excluding, the Redemption Date.
In each case, redemption shall be upon notice not fewer than 30 days and not more than 60 days prior to the Redemption Date. Such notice
may be conditioned upon the consummation of a financing the proceeds of which are to be utilized to effect the applicable redemption.
(b) Unless
the Company defaults on the payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes
called for redemption.
Section 3.4 Mandatory
Redemption.
(a) Upon
the occurrence of a Mandatory Redemption Event with respect to the Notes, the Outstanding Notes shall be subject to mandatory redemption,
in whole but not in part, within 45 days after the occurrence of the Mandatory Redemption Event at a price equal to $25.50 per Note, plus
accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
(b) Unless
the Company defaults on the payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes
called for redemption.
Section 3.5 Notice
and Method of Redemption.
(a) The
provisions of Article Eleven of the Base Indenture, as amended and supplemented by the provisions of this First Supplemental Indenture,
shall apply to the redemption of the Notes.
(b) If
less than all of the Notes are to be redeemed, the particular Notes to be redeemed will be selected not more than 45 days prior to the
Redemption Date by the Trustee from the outstanding Notes not previously called for redemption, by lot, or in the Trustee’s discretion,
on a pro-rata basis, provided that the unredeemed portion of the principal amount of any Notes will be in an authorized denomination (which
will not be less than the minimum authorized denomination) for such Notes. The Trustee will promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Notes selected for partial redemption, the principal amount thereof to be redeemed.
Beneficial interests in any of the Notes or portions thereof called for redemption that are registered in the name of the Depositary or
its nominee will be selected by the Depositary in accordance with the Depositary’s applicable procedures.
ARTICLE 4
DEFEASANCE AND COVENANT DEFEASANCE
Section 4.1 Applicability
of Sections 402 and 403 and Article Fifteen of the Base Indenture.
Sections 402 and 403 and Article Fifteen
of the Base Indenture shall not apply to the Notes. The provisions set forth in this Article 4 shall, with respect to the Notes,
supersede in their entirety Sections 402 and 403 and Article Fifteen of the Base Indenture, all references to Section 402 in
Section 401 of the Base Indenture shall, with respect to the Notes, be deemed to be references to Section 4.6 of this First
Supplemental Indenture, and all references in the Base Indenture to Article Fifteen thereof shall, with respect to the Notes, be
deemed to be references to this Article 4.
Section 4.2 Company’s
Option to Effect Defeasance or Covenant Defeasance. The Company may, at its option, effect defeasance of the Notes under Section 4.3
of this First Supplemental Indenture, or covenant defeasance under Section 4.4 of this First Supplemental Indenture in accordance
with this Article 4.
Section 4.3 Defeasance
and Discharge. Upon the Company’s exercise of the option applicable to this Section 4.3 with respect to the Notes, the
Company shall be deemed to have been discharged from its obligations with respect to the Notes on the date the conditions set forth in
Section 4.5 of this First Supplemental Indenture are satisfied (hereinafter, “defeasance”). For this purpose,
defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the Notes, which
shall thereafter be deemed to be “Outstanding” only for the purposes of Section 4.6 of this First Supplemental Indenture
and the other Sections of the Base Indenture and this First Supplemental Indenture referred to in (i) and (ii) below, and to
have satisfied all its other obligations under the Notes and the Indenture insofar as the Notes are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of Holders of the Outstanding Notes to receive, solely from the trust
fund described in Section 4.5 of this First Supplemental Indenture and as more fully set forth in such Section 4.5, payments
in respect of the principal of (and premium, if any) and interest on such Notes when such payments are due, (ii) the Company’s
obligations with respect to the Notes under Sections 304, 305 and 306 and Article Ten of the Base Indenture and Article 5 of
this First Supplemental Indenture and such obligations as shall be ancillary thereto, (iii) the rights, powers, trusts, duties and
immunities of the Trustee under the Indenture including, without limitation, Section 607 of the Base Indenture and the penultimate
paragraph of Section 4.6 of this First Supplemental Indenture and (iv) this Article 4. Subject to compliance with this
Article 4, the Company may exercise its option under this Section 4.3 notwithstanding the prior exercise of its option under
Section 4.4 of this First Supplemental Indenture with respect to the Notes.
Section 4.4 Covenant
Defeasance. Upon the Company’s exercise of the option applicable to this Section 4.4 with respect to the Notes, the
Company shall be released from its obligations under Article Ten of the Base Indenture and Article 5 of this First
Supplemental Indenture with respect to the Notes on and after the date the conditions set forth in Section 4.5 of this First
Supplemental Indenture are satisfied (hereinafter, “covenant defeasance”), and the Notes shall thereafter be
deemed not to be “Outstanding” for the purposes of any direction, waiver, consent or declaration of Holders (and the
consequences of any thereof) in connection with the covenants in Article Ten of the Base Indenture and Article 5 of this
First Supplemental Indenture, but shall continue to be deemed “Outstanding” for all other purposes under the Indenture.
For this purpose, covenant defeasance means that, with respect to the Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any covenant in Article Ten of the Base Indenture and
Article 5 of this First Supplemental Indenture and such omission to comply shall not constitute a Default or an Event of
Default under Section 6.2 of this First Supplemental Indenture or otherwise, as the case may be, but, except as specified
above, the remainder of the Indenture and the Notes shall be unaffected thereby.
Section 4.5 Conditions
to Defeasance or Covenant Defeasance. The following shall be the conditions to application of either Section 4.3 or Section 4.4
of this First Supplemental Indenture to the Notes:
(a) The
Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of
Section 609 of the Base Indenture who shall agree to comply with the provisions of this Article 4 applicable to it) as trust
funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of the Notes, (A) an amount in U.S. dollars or (B) Eligible Instruments, which through the scheduled payment
of principal (and premium, if any) and interest in respect thereof in accordance with the terms of the Notes will provide, not later
than one day before the due date of any payment of principal of and premium, if any, and interest, under the Notes, money in an amount,
or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants, an investment
bank or an appraisal firm, expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of (and premium, if any) and interest on
the Notes on the Stated Maturity (or Redemption Date, if applicable) of such principal (and premium, if any) or installment of interest;
provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Eligible Instruments to
said payments with respect to the Notes. Before such a deposit, the Company may give to the Trustee, in accordance with Section 1102
of the Base Indenture, a notice of its election to redeem all or any portion of the Notes at a future date in accordance with the terms
of the Notes, Article Eleven of the Base Indenture and Section 3.5 of this First Supplemental Indenture, which notice shall
be irrevocable. Such irrevocable redemption notice, if given, shall be given effect in applying the foregoing.
(b) No
Default or Event of Default with respect to the Notes shall have occurred and be continuing on the date of such deposit or, insofar as
the provisions of clause (4) of Section 6.2 of this First Supplemental Indenture are concerned, at any time during the period
ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the
expiration of such period).
(c) Such
defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement
or instrument (other than the Indenture) to which the Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound.
(d) In
the case of an election under Section 4.3 of this First Supplemental Indenture, the Company shall have delivered to the Trustee
an Opinion of Counsel stating that (x) the Company has received from, or there has been published by, the Internal Revenue Service
a ruling, or (y) since the date of execution of this First Supplemental Indenture, there has been a change in the applicable federal
income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the Notes
will not recognize income, gain or loss for federal income tax purposes as a result of the deposit and such defeasance and will be subject
to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if the deposit and
such defeasance had not occurred.
(e) In
the case of an election under Section 4.4 of this First Supplemental Indenture, the Company shall have delivered to the Trustee
an Opinion of Counsel to the effect that the Holders of the Notes will not recognize income, gain or loss for federal income tax purposes
as a result of such covenant defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if the deposit and such covenant defeasance had not occurred.
(f) The
Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance under Section 4.3 of this First Supplemental Indenture or
the covenant defeasance under Section 4.4 of this First Supplemental Indenture (as the case may be) have been complied
with.
(g) The
Company shall have delivered to the Trustee an Officers’ Certificate stating that such defeasance or covenant defeasance shall
not cause the Notes, if then listed on any registered national securities exchange under the Exchange Act, to be delisted from such exchange.
(h) Such
defeasance or covenant defeasance must not result in the trust arising from the deposit constituting an investment company within the
meaning of the Investment Company Act, unless such trust will be registered under the Investment Company Act or exempt from registration
thereunder.
(i) Such
defeasance or covenant defeasance must not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture
Act.
Section 4.6 Deposited
Money and Eligible Instruments to Be Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of Section 1003
of the Base Indenture, all money and Eligible Instruments (including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 4.6, the “Trustee”) pursuant to Section 4.5 of this First
Supplemental Indenture or Section 401 of the Base Indenture in respect of the Notes shall be held in trust and applied by the Trustee,
in accordance with the provisions of the Notes and the Indenture, to the payment, either directly or through any Paying Agent (including
the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of the Notes of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such money need not be segregated from other funds except to
the extent required by law.
The Company shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or Eligible Instruments deposited
pursuant to Section 4.5 of this First Supplemental Indenture or Section 401 of the Base Indenture or the principal and interest
received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the Notes.
Notwithstanding anything to the contrary contained herein, the foregoing sentence shall survive the termination of this First Supplemental
Indenture and the earlier resignation or removal of the Trustee.
Anything in this Article 4
to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or
Eligible Instruments (or other property and any proceeds therefrom) held by it as provided in Section 4.5 of this First Supplemental
Indenture or Section 401 of the Base Indenture which, in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required
to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Article 4.
Section 4.7 Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in accordance with Section 4.6 of this First Supplemental Indenture
with respect to the Notes by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company’s obligations under the Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 4.3 or 4.4 of this First Supplemental Indenture, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 4.6 of this First Supplemental
Indenture; provided, however, that if the Company makes any payment of principal of (or premium, if any) or interest, on the Notes following
the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of the Notes to receive such payment
from the money held by the Trustee or Paying Agent.
ARTICLE 5
CERTAIN COVENANTS
The following covenants shall
be applicable to the Notes for so long as any of the Notes are Outstanding. Except as expressly stated in this Article, however, nothing
in this Article will affect the Company’s rights or obligations under any other provision of the Base Indenture or this First
Supplemental Indenture.
Section 5.1 Merger,
Consolidation or Sale of Assets.
Section 801 of the Base
Indenture shall not apply to the Notes. The provisions set forth in this Section 5.1 shall, with respect to the Notes, supersede
in their entirety Section 801 of the Base Indenture, and all references in the Base Indenture to Section 801 shall, with respect
to the Notes, be deemed to be references to this Section 5.1.
The Company shall not merge
or consolidate with or into any other Person (other than a merger of a wholly owned subsidiary of the Company into the Company) or sell,
transfer, lease, convey or otherwise dispose of all or substantially all of its property (provided that, for the avoidance of doubt, a
pledge of assets pursuant to any secured debt instrument of the Company or its subsidiaries shall not be deemed to be any such sale, transfer,
lease, conveyance or disposition) in one transaction or series of related transactions unless:
(a) the
Company shall be the surviving Person (the “Surviving Person”) or the Surviving Person (if other than the Company)
formed by such merger or consolidation or to which such sale, transfer, lease, conveyance or disposition is made shall be a corporation
or limited liability company organized and existing under the laws of the United States of America, any state thereof or the District
of Columbia;
(b) the
Surviving Person (if other than the Company) expressly assumes, by supplemental indenture in form reasonably satisfactory to the Trustee,
executed and delivered to the Trustee by such Surviving Person, the due and punctual payment of the principal of, and premium, if any,
and interest on, all the Notes Outstanding, and the due and punctual performance and observance of all the covenants and conditions of
the Indenture to be performed by the Company;
(c) immediately
before and immediately after giving effect to such transaction or series of related transactions, no default or Event of Default shall
have occurred and be continuing; and
(d) in
the case of a merger or consolidation where the Surviving Person is other than the Company or such a sale, transfer, lease, conveyance
or disposition, the Company, the Surviving Person or the entity (if other than the Company) to which such sale, transfer, lease, conveyance
or disposition is made, shall deliver, or cause to be delivered, to the Trustee, an Officers’ Certificate and an Opinion of Counsel,
each stating that such transaction and the supplemental indenture, if any, in respect thereto comply with this Section 5.1 and that
all conditions precedent in the Indenture relating to such transaction have been complied with.
Section 5.2 Reporting.
The provisions of Section 704
of the Base Indenture, as supplemented by the provisions of this First Supplemental Indenture, shall apply to the Notes.
If, at any time, the Company
is not subject to the reporting requirements of Sections 13 or 15(d) of the Exchange Act to file any periodic reports with the Commission,
the Company agrees to furnish to Holders and the Trustee, for the period of time during which the Notes are outstanding, its audited annual
consolidated financial statements, within 90 days of its fiscal year end, and unaudited interim consolidated financial statements, within
45 days of its fiscal quarter end (other than our fourth fiscal quarter). All such financial statements will be prepared, in all material
respects, in accordance with generally accepted accounting principles, as applicable.
Delivery of such reports,
information and documents to the Trustee pursuant to this Section 5.2 is for informational purposes only and the Trustee’s
receipt of such shall not constitute actual or constructive knowledge or notice of any information contained therein or determinable from
information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on an Officers’ Certificate).
Section 5.3 Payment
of Taxes.
The Company will pay or discharge
or cause to be paid or discharged, before the same shall become delinquent, all taxes, assessments and governmental charges levied or
imposed upon the Company or upon the income, profits or property of the Company, except where the failure to do so would not be reasonably
expected to have a material adverse effect on the business, assets, financial condition or results of operations of the Company; provided,
however, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment or charge
whose amount, applicability or validity is being contested in good faith by appropriate proceedings.
ARTICLE 6
REMEDIES
Section 6.1 Applicability
of Article Five of the Base Indenture.
Article Five of the Base
Indenture shall not apply to the Notes. The provisions set forth in this Article 6 shall, with respect to the Notes, supersede in
their entirety Article Five of the Base Indenture, and all references in the Base Indenture to Article Five thereof shall, with
respect to the Notes, be deemed to be references to this Article 6. References in the Base Indenture to Sections 501(1), 501(2),
501(4), 501(5) and 501(6) of the Base Indenture shall be deemed to be references to Sections 6.2(1), 6.2(2), 6.2(3), 6.2(4) and
6.2(5), respectively, of this First Supplemental Indenture.
Section 6.2 Events
of Default.
“Event of Default”
wherever used herein with respect to the Notes means 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):
(1) default
in the payment of any interest upon any Note when it becomes due and payable, and continuance of such default for a period of 30 days;
(2) default
in the payment of the principal of any Note when due and payable;
(3) default
in the performance, or breach, of any covenant of the Company in the Indenture with respect to the Notes, and continuance of such default
or breach for a period of 60 days after there has been sent to the Company by the Trustee or to the Company and the Trustee by the Holders
of at least 25% in principal amount of the Notes, 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;
(4) the
entry by a court having jurisdiction in the premises of (A) a final decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or (B) a final
decree or order adjudging the Company as 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 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 final decree or order for relief or any such other decree
or order unstayed and in effect for a period of 90 consecutive days following the entry of such final decree or order; or
(5) the
commencement by the Company of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be adjudicated as bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any
applicable federal or state 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 similar official of the Company or of any substantial part
of its property, or the making by the Company of an assignment for the benefit of creditors, or the admission by the Company in
writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in
furtherance of any such action.
Section 6.3 Acceleration
of Maturity; Rescission and Annulment.
(a) If
an Event of Default (other than an Event of Default specified in clause (4) or (5) of Section 6.2 of this First Supplemental
Indenture) with respect to the Notes at the time Outstanding occurs and is continuing, then and in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Notes may declare the principal amount, together with accrued and
unpaid interest, if any, of all of the Notes, to be due and payable immediately, by a notice in writing to the Company (and to the Trustee
if given by the Holders), and upon any such declaration such principal amount shall become immediately due and payable. If an Event of
Default specified in clause (4) or (5) of Section 6.2 of this First Supplemental Indenture with respect to Notes at the
time Outstanding occurs, the principal amount of all of the Outstanding Notes shall be immediately due and payable, together with accrued
and unpaid interest, if any, without any declaration or other act on the part of the Trustee or any Holder of any Note.
(b) At
any time after such a declaration of acceleration with respect to the Notes 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 6, the Holders of a majority in principal
amount of the Outstanding Notes, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences
if:
(1) the
Company has paid or deposited with the Trustee a sum sufficient to pay:
(A) all
overdue interest on all Notes,
(B) the
principal of (and premium, if any, on) any Note which have become due otherwise than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such Note,
(C) to
the extent that payment of such interest is lawful, interest upon overdue principal (and premium, if any) and overdue interest at the
rate or rates prescribed therefor in such Notes, and
(D) all
sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel; and
(2) all
Events of Default with respect to the Notes, other than the non-payment of the principal of the Notes which have become due solely by
such declaration of acceleration, have been cured or waived as provided in Section 6.14 of this First Supplemental Indenture.
(c) No
such rescission of a declaration of acceleration shall affect any subsequent default or impair any right consequent thereon.
(d) Upon
receipt by the Trustee of any declaration of acceleration, or rescission and annulment thereof, with respect to the Notes, all or
part of which is represented by a Global Security, the Trustee shall establish a record date for determining Holders of Outstanding
Notes entitled to join in such declaration of acceleration, or rescission and annulment, as the case may be, which record date shall
be at the close of business on the day the Trustee receives such declaration of acceleration, or rescission and annulment, as the
case may be. The Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to join in
such declaration of acceleration, or rescission and annulment, as the case may be, whether or not such Holders remain Holders after
such record date; provided, that unless such declaration of acceleration, or rescission and annulment, as the case may be, shall
have become effective by virtue of the requisite percentage having been obtained prior to the day which is 90 days after such record
date, such declaration of acceleration, or rescission and annulment, as the case may be, shall automatically and without further
action by any Holder be canceled and of no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder,
from giving, after expiration of such 90-day period, a new declaration of acceleration, or rescission or annulment thereof, as the
case may be, that is identical to a declaration of acceleration, or rescission or annulment thereof, which has been canceled
pursuant to the preceding sentence, in which event a new record date shall be established pursuant to the provision of this
Section 6.3.
Section 6.4 Collection
of Indebtedness and Suits for Enforcement by Trustee.
(a) The
Company covenants that if:
(1) default
is made in the payment of any interest on any Note when such interest becomes due and payable and such default continues for a period
of 30 days; or
(2) default
is made in the payment of the principal of (or premium, if any, on) any Note at the Maturity thereof; or
(3) default
is made in the deposit of any sinking fund payment, when and as due by the terms of a Note;
the Company will, upon demand of the Trustee,
pay to it, for the benefit of the Holders of such Notes, the whole amount then due and payable on such Notes for principal (and premium,
if any) and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal
(and premium, if any) and on any overdue interest, at the rate or rates prescribed therefor in such Notes, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
(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, may prosecute such proceeding to judgment or final decree,
and may enforce the same against the Company or any other obligor upon such Notes and collect the moneys adjudged or decreed to be payable
in the manner provided by law out of the property of the Company or any other obligor upon such Notes, wherever situated.
(c) If
an Event of Default with respect to Notes occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Notes 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 the Indenture or in aid of the exercise
of any power granted herein, or to enforce any other proper remedy.
Section 6.5 Trustee
May File Proofs of Claim.
(a) In
case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the Notes or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal of the Notes shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue
principal (and premium, if any) or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(1) to
file and prove a claim for the whole amount of principal (and premium, if any) and interest owing and unpaid in respect of the Notes
and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including
any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding, and
(2) to
collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same.
(3) 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 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 due the Trustee under Section 607 of the Base Indenture.
(b) Nothing
herein contained shall be deemed to authorize the Trustee to authorize, consent to, or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
(c) The
Trustee shall be entitled to participate as a member of any official committee of creditors in the matters it deems advisable.
Section 6.6 Trustee
May Enforce Claims Without Possession of Notes.
All rights of action and claims
under the Indenture or the Notes may be prosecuted and enforced by the Trustee without the possession of any of the Notes 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, after provision for the payment of the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Notes in respect of which such judgment
has been recovered.
Section 6.7 Application
of Money Collected.
Any money or property collected
by the Trustee pursuant to this Article 6 or, after an Event of Default, any money or other property distributable in respect of
the Company’s obligations under the Indenture, 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 premium, if any) or interest, upon presentation
of the Notes 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 (including any predecessor trustee) under Section 607 of the Base Indenture;
SECOND: To the payment of
the amounts then due and unpaid for principal of (and premium, if any) and interest on the Notes 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 such Notes for principal (and premium, if any) and interest, respectively; and
THIRD: To the Company.
Section 6.8 Limitation
of Suits.
No Holder of any Note shall
have any right to institute any proceeding, judicial or otherwise, with respect to the Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(1) such
Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Notes;
(2) the
Holders of not less than 25% in principal amount of the Notes 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;
(3) such
Holder or Holders have offered to the Trustee indemnity and/or security satisfactory to the Trustee in its sole discretion against the
costs, expenses and liabilities to be incurred in compliance with such request;
(4) the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity and/or security has failed to institute any such
proceeding; and
(5) no
direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Notes;
it being understood and intended that no one or
more of such Holders shall have any right in any manner whatever by virtue of any provision of the Indenture to affect, disturb or prejudice
the rights of any other of such Holders (it being understood that the Trustee does not have an affirmative duty to ascertain whether or
not such actions or forbearances are unduly prejudicial to such Holders), or to obtain or to seek to obtain priority or preference over
any other of such Holders or to enforce any right under the Indenture, except in the manner herein provided and for the equal and ratable
benefit of all of such Holders.
Section 6.9 Unconditional
Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other
provision in the Indenture, the Holder of any Note shall have the right, which is absolute and unconditional, to receive payment of the
principal of (and premium, if any) and interest on such Note on the Stated Maturity or Maturities expressed in such Note (or, in the case
of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
Section 6.10 Restoration
of Rights and Remedies.
If the Trustee or any Holder
has instituted any proceeding to enforce any right or remedy under the Indenture and such proceeding has been discontinued or abandoned
for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination
in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 6.11 Rights
and Remedies Cumulative.
Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or stolen Debt Securities in Section 306 of the Base Indenture,
no right or remedy herein conferred upon or reserved to the Trustee or to 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 6.12 Delay
or Omission Not Waiver.
No delay or omission of
the Trustee or of any Holder of any Notes 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 6 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 6.13 Control
by Holders.
(a) The
Holders of a majority in principal amount of the Outstanding Notes 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, with respect to the
Notes, provided that,
(1) such
direction shall not be in conflict with any rule of law or with the Indenture, nor subject the Trustee to a risk of personal liability
in respect of which the Trustee has not received indemnification satisfactory to it in its sole discretion against all losses, liabilities
and expenses caused by taking or not taking such action, and
(2) the
Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.
(b) Prior
to taking any such action hereunder, the Trustee shall be entitled to indemnification and/or security satisfactory to it in its sole discretion
against all fees, losses, liabilities and expenses (including attorney’s fees and expenses) caused by or that might be caused by
taking or not taking such action.
(c) Upon
receipt by the Trustee of any such direction with respect to Notes all or part of which is represented by a Global Security, the Trustee
may establish a record date for determining Holders of Outstanding Notes entitled to join in such direction, which record date shall be
at the close of business on the day the Trustee receives such direction. The Holders on such record date, or their duly designated proxies,
and only such Persons, shall be entitled to join in such direction, whether or not such Holders remain Holders after such record date;
provided, that unless such majority in principal amount shall have been obtained prior to the day which is 90 days after such record date,
such direction shall automatically and without further action by any Holder be canceled and of no further effect. Nothing in this paragraph
shall prevent a Holder, or a proxy of a Holder, from giving, after expiration of such 90-day period, a new direction identical to a direction
which has been canceled pursuant to the provisions to the preceding sentence, in which event a new record date shall be established pursuant
to the provisions of this Section 6.13.
Section 6.14 Waiver
of Past Defaults.
(a) The
Holders of not less than a majority in principal amount of the Outstanding Notes may on behalf of the Holders of all the Notes waive any
past default hereunder with respect to the Notes and its consequences, except a default:
(1) in
the payment of the principal of (or premium, if any) or interest on any Note which has become due otherwise than by a declaration of acceleration
under Section 6.3 of this First Supplemental Indenture and interest thereon at the rate or rates prescribed therefor in the Notes,
or
(2) in
respect of a covenant or provision hereof which under Article Nine of the Base Indenture cannot be modified or amended without the
consent of the Holder of each Outstanding Note.
(b) Upon
any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of the Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 6.15 Undertaking
for Costs.
Each party to the
Indenture agrees, and each Holder of any Note by such Holder’s 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 the Indenture, or in any suit
against the Trustee for any action taken, suffered 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, 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 6.15 shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Outstanding Notes, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest on any Note on or after the Stated Maturity or Maturities expressed in
such Note (or, in the case of redemption, on or after the Redemption Date).
Section 6.16 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 the 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 7
MISCELLANEOUS
Section 7.1 Trust
Indenture Act Controls.
If any provision of this First
Supplemental Indenture limits, qualifies or conflicts with another provision which is required to be included in this First Supplemental
Indenture by the Trust Indenture Act, the required provision of the Trust Indenture Act shall control. If any provision of this First
Supplemental Indenture modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, such provision
of the Trust Indenture Act shall be deemed to apply to this First Supplemental Indenture as so modified or to be excluded from this First
Supplemental Indenture, as the case may be.
Section 7.2 New
York Law to Govern.
This First Supplemental Indenture
and the Notes shall be governed by and construed in accordance with the laws of the State of New York.
Section 7.3 Counterparts.
This First Supplemental Indenture
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.
Section 7.4 Severability.
If any provision of this First
Supplemental Indenture or the Notes shall be held to be illegal or unenforceable under applicable law, then the remaining provisions hereof
shall be construed as though such invalid, illegal or unenforceable provision were not contained therein.
Section 7.5 Ratification.
The Base Indenture, as supplemented
by this First Supplemental Indenture, is in all respects ratified and confirmed. All provisions included in this First Supplemental Indenture
supersede any conflicting provisions included in the Indenture, unless not permitted by law. The Trustee accepts the trusts created by
the Base Indenture, as supplemented by this First Supplemental Indenture, and agrees to perform the same upon the terms and conditions
of the Indenture.
Section 7.6 Effectiveness.
The provisions of this First
Supplemental Indenture shall become effective as of the date hereof.
Section 7.7 Trustee
Makes No Representation.
The recitals and statements
contained herein and in the Notes are made solely by the Company and not by the Trustee, and the Trustee assumes no responsibility for
the correctness thereof. The Trustee makes no representation as to the validity, adequacy or sufficiency of this First Supplemental Indenture
or the Notes. All rights, protections, privileges, indemnities, immunities and benefits granted or afforded to the Trustee under the Base
Indenture shall be deemed incorporated herein by this reference and shall be deemed applicable to all actions taken, suffered or omitted
to be taken by the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act under this
First Supplemental Indenture, except that the standard of care applicable to each agent, custodian and any other Person employed to act
hereunder shall be that of gross negligence and willful misconduct.
Section 7.8 Electronic
Means.
The Trustee shall have the
right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to
the Base Indenture, as supplemented by this First Supplemental Indenture and delivered using Electronic Means; provided, however, that
the Company shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized
Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by
the Company whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee Instructions using
Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions
shall be deemed controlling. The Company understands and agrees that the Trustee cannot determine the identity of the actual sender of
such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer
listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company shall be responsible
for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and all Authorized Officers
are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication
keys upon receipt by the Company. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from
the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with
a subsequent written instruction. The Company agrees: (i) to assume all risks arising out of the use of Electronic Means to submit
Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of
interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various
methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected
by the Company; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide
to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee
immediately upon learning of any compromise or unauthorized use of the security procedures.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused
this First Supplemental Indenture to be duly executed as of the date first above written.
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IMEDIA BRANDS, INC.
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By:
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/s/ Timothy A. Peterman
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Name: Timothy A. Peterman
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Title: Chief Executive Officer
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[Signature
Page to iMedia Brands, Inc. First Supplemental Indenture]
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U.S. BANK NATIONAL ASSOCIATION,
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as Trustee
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By:
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/s/ Benjamin J. Krueger
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Name: Benjamin J. Krueger
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Title: Vice President
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[Signature
Page to iMedia Brands, Inc. First Supplemental Indenture]
EXHIBIT A
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING
OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS GLOBAL SECURITY IS EXCHANGEABLE
FOR SECURITIES REGISTERED IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR ITS NOMINEE ONLY IN LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS GLOBAL SECURITY
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY (AS DEFINED BELOW) 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 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.
IMEDIA BRANDS, INC.
8.50% Senior Note due 2026
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No.
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Principal Amount
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CUSIP No. 452465 305
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$[______]
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ISIN No. US4524653056
iMedia Brands, Inc., a Minnesota corporation
(hereinafter called the “Company,” which term includes any successor Person under the Indenture referred to below),
for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [________] Dollars (U.S.
$[________]) on September 30, 2026 (the “Maturity Date”) and to pay interest thereon from September 28, 2021
or from the most recent Interest Payment Date to which interest has been paid or duly provided for, quarterly on March 31, June 30,
September 30 and December 31 in each year and on the Maturity Date (each an “Interest Payment Date”), beginning
on December 31, 2021 at the rate of 8.50% per annum, until the principal hereof is paid or duly made available for payment. The interest
so payable and punctually paid or duly provided for on any Interest Payment Date shall, as provided in such Indenture, be paid to the
Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the March 15, June 15, September 15 or December 15 (whether or not a Business Day),
as the case may be, preceding such Interest Payment Date; interest payable on the Maturity Date will be paid to the Persons in whose names
the Notes the Notes (or one or more Predecessor Securities) are registered on the Maturity Date. Any such interest which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the Holder hereof on
the relevant Regular Record Date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (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 (as defined below), notice whereof shall be given to Holders of the Notes not less than 10 days prior to such
Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
The amount of interest payable for any interest
period, including interest payable for any partial interest period, will be computed on the basis of a 360-day year comprised of twelve
30-day months. If an interest payment date falls on a non-Business Day, the applicable interest payment will be made on the next Business
Day and no additional interest will accrue as a result of such delayed payment.
Payment of the principal of (and premium, if any)
and the interest on this Note shall be made at the Corporate Trust Office of the Trustee, in such currency of the United States of America
as at the time of payment is legal tender for payment of public and private debts; provided, however, for so long as the Notes are represented
in global form by one or more Global Securities, all payments of principal (and premium, if any) and interest shall be made by wire transfer
of immediately available funds to the Depositary or its nominee, as the case may be, as the registered owner of the Global Security representing
such Notes. In the event that definitive Notes shall have been issued, all payments of principal (and premium, if any) and interest shall
be made by wire transfer of immediately available funds to the accounts of the registered Holders thereof; provided, that the Company
may at its option pay interest by check to the registered address of each Holder of a definitive Note.
This Note is one of the duly authorized series
of Debt Securities of the Company, designated as the Company’s 8.50% Senior Notes due 2026,” initially limited to an aggregate
principal amount of $80,000,000, all issued or to be issued under and pursuant to an Indenture (the “Base Indenture”),
dated as of September 28, 2021, between the Company and U.S. Bank National Association, as trustee (hereinafter referred to as the
“Trustee”), as supplemented by the First Supplemental Indenture hereto, dated as of September 28, 2021 (the “First
Supplemental Indenture” and, together with the Base Indenture, the “Indenture”). Reference is hereby made
to the Indenture for a description of the respective rights, limitation of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of the Notes.
The Company may redeem the Notes as a whole or
in part, at any time and from time to time at the Company’s option (i) on or after September 30, 2023 and prior to September 30,
2024, at a price equal to 25.75 per Note, plus accrued and unpaid interest to, but excluding, the Redemption Date, (ii) on or after
September 30, 2024 and prior to September 30, 2025, at a price equal to $25.50 per Note, plus accrued and unpaid interest to,
but excluding, the Redemption Date and (iii) on or after September 30, 2025 and prior to maturity, at a price equal to $25.25
per Note, plus accrued and unpaid interest to, but excluding, the Redemption Date. In each case, redemption shall be upon notice not fewer
than 30 days and not more than 60 days prior to the Redemption Date.
Upon the occurrence of a Mandatory Redemption
Event with respect to the Notes, the Outstanding Notes shall be subject to mandatory redemption, in whole but not in part, within 45 days
after the occurrence of the Mandatory Redemption Event at a price equal to $25.50 per Note, plus accrued and unpaid interest, if any,
to, but excluding, the Redemption Date.
If less than all of the Notes are to be redeemed,
the Notes to be redeemed shall be selected not more than 45 days prior to the Redemption Date by the Trustee from the outstanding Notes
not previously called for redemption, by lot, or in the Trustee’s discretion, on a pro-rata basis, provided that the unredeemed
portion of the principal amount of any Notes will be in an authorized denomination (which will not be less than the minimum authorized
denomination) for such Notes. The Trustee will promptly notify the Company in writing of the Notes selected for redemption and, in the
case of any Notes selected for partial redemption, the principal amount thereof to be redeemed.
The Notes are not subject to any sinking fund.
If an Event of Default with respect to the Notes
shall occur and be continuing, the principal of the Notes may be declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture permits, with certain exceptions
as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders
of the Debt Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in aggregate principal amount of the Debt Securities at the time Outstanding of each series
affected thereby. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount
of the Debt Securities of any series at the time Outstanding, on behalf of the Holders of all Debt Securities of such series, to waive
certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive
and binding upon such Holder and upon all future Holders of this Note and of any Note 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 Note.
No reference herein to the Indenture and no provision
of this Note or of the Indenture shall alter or impair the right of the Holder of this Note, which is absolute and unconditional, to receive
payment of the principal of and interest on this Note at the times herein and in the Indenture prescribed and to institute suit for the
enforcement of any such payment unless the Holder of this Note shall have consented to the impairment of such right.
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Note may be registered in the Security Register, upon surrender of this Note for registration
of transfer at the office or agency of the Company in any place where the principal of (and premium, if any) and interest on this Note
are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or by his attorney duly authorized in writing, and thereupon one or more new Notes of this
series and of any authorized denominations and of a like aggregate principal amount and tenor, shall be issued to the designated transferee
or transferees.
The Notes are issuable only in registered form
without coupons in minimum denominations of $25 and integral multiples of $25 in excess thereof. Subject to certain limitations therein
set forth in the Indenture and in this Note, the Notes are exchangeable for a like aggregate principal amount of Notes of this series
in different authorized denominations, as requested by the Holders surrendering the same.
No service charge shall be made for any such registration
of transfer or for exchange of this Note, but the Company or the Trustee may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of transfer or exchange of a Note, other than in certain cases
provided in the Indenture.
Prior to due presentment of this Note for registration
of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Note is registered
as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture contains provisions whereby (i) the
Company may be discharged from its obligations with respect to the Notes (subject to certain exceptions) or (ii) the Company may
be released from its obligations under specified covenants and agreements in the Indenture, in each case if the Company irrevocably deposits
with the Trustee money or Eligible Instruments sufficient to pay and discharge the entire indebtedness on all Notes of this series, and
satisfies certain other conditions, all as more fully provided in the Indenture.
This Note shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined
in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon
has been executed by or on behalf of the Trustee under the Indenture by the manual signature (which may be scanned, photocopied or faxed
or otherwise signed electronically (including by DocuSign or Adobe Sign)) of one of its authorized signatories, this Note shall not be
entitled to any benefits under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.
Dated:
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IMEDIA BRANDS, INC.
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By:
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Name: Timothy A. Peterman
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Title: Chief Executive Officer
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[Signature
Page to iMedia Brands, Inc. Global Note]
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series
designated therein referred to in the within-mentioned Indenture.
Dated:
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U.S. BANK NATIONAL ASSOCIATION,
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as Trustee
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By:
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Name:
Title:
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[Authentication
Certificate to iMedia Brands, Inc. Global Note]
ABBREVIATIONS
The following abbreviations, when used in the
inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or
regulations.
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TEN COM - as tenants
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UNIF GIFT MIN ACT - . . .Custodian
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in common
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(Cust) (Minor)
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TEN ENT - as tenants by
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Under Uniform Gifts to
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the entireties
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Minor Act
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JT TEN - as joint tenants
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with right of
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survivorship and
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not as tenants in
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common
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(State)
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Additional abbreviations may also be used though
not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
(Please insert Assignee’s legal name)
(Please insert Social Security or other identifying
number of Assignee)
(Please print or typewrite name and address including
postal zip code of Assignee)
the within Note of IMEDIA BRANDS, INC. and
does hereby irrevocably constitute and appoint attorney to transfer the said Note on the books of the Company, with full power of substitution
in the premises.
Dated:
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Your
Signature:
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(Sign exactly as your name appears on the
face of this Note)
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[NOTICE: The signature to this assignment must
correspond with the name as written upon the face of the within instrument in every particular, without alteration or enlargement or any
change whatever.]
