As filed with the Securities and Exchange Commission on May 8,
2019
Registration No. 333-
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
F-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
AMBOW
EDUCATION HOLDING LTD.
(Exact name of registrant as specified in its charter)
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Cayman Islands
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Not Applicable
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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12th Floor, Tower 1, Financial Street,
Chang’an Center, Shijingshan District, Beijing
100043
People’s Republic of China
Telephone: +86 (10) 6206-8000
(Address and telephone number of registrant’s principal executive offices)
C T Corporation System
111 Eighth Avenue
New York, New York 10011
(212) 894-8940
(Name, address and telephone number of agent for service)
with a copy to:
Mitchell S. Nussbaum
Lawrence Venick
Loeb & Loeb LLP
345 Park Avenue
New York, NY 10154
(212) 407-4000
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this registration statement.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans, please check the following box.
¨
If any of the securities being registered on this form are to
be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box.
x
If this Form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering.
¨
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration number of the earlier effective
registration statement for the same offering.
¨
If this Form is a registration statement pursuant to General
Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to
Rule 462(e) under the Securities Act, check the following box.
¨
If this Form is a post-effective amendment
to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes
of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
¨
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging growth company
¨
If an emerging growth
company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected
not to use the extended transition period for complying with any new or revised financial accounting standards† provided
pursuant to Section 7(a)(2)(B) of the Securities Act.
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† The term “new
or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its
Accounting Standards Codification after April 5, 2012.
CALCULATION OF REGISTRATION FEE
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Title of each class of securities to be registered
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Amount to be
registered(1)
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Proposed
maximum
offering
price per
unit(2)
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Proposed
maximum
aggregate
offering
price(1)(3)
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Amount of
registration
fee
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Class A Ordinary shares, par value $0.003 per share(4)
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Preferred shares, $0.003 per share
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Warrants
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Subscription rights (5)
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Debt securities
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Units (6)
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Total
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$
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100,000,000
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$
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12,120
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(1)
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There are being registered hereunder such indeterminate number of Class A ordinary shares, such indeterminate number of preferred
shares, such indeterminate number of warrants, such indeterminate number of subscription rights, such indeterminate number of debt
securities and such indeterminate number of units as will have an aggregate initial offering price not to exceed $100,000,000,
or if any securities are issued in any non-United States currency units, the equivalent thereof in non-United States currencies.
This registration statement shall also cover any additional securities to be offered or issued from stock splits, stock dividends,
recapitalizations or similar transactions. If any debt securities are issued at an original issue discount, then the offering price
of such debt securities shall be in such greater principal amount as shall result in a maximum aggregate offering price not to
exceed $100,000,000, less the aggregate dollar amount of all securities previously issued hereunder.
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(2)
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The proposed maximum aggregate offering price for each class of securities will be determined from time to time by the Registrant
in connection with the issuance by the Registrant of the securities registered hereunder and is not specified as to each class
of securities pursuant to General Instruction II.C. of Form F-3 under the Securities Act of 1933, as amended (the “Securities
Act”).
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(3)
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Estimated solely for the purposes of calculating the registration fee pursuant to Rule 457(o), in the case of securities being
offered by the Registrant of Regulation C under the Securities Act of 1933, as amended.
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(4)
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These ordinary shares may be represented by the Registrant’s American Depositary Shares (“ADSs”), each of
which represents two class A ordinary shares. The Registrant’s ADSs issuable upon deposit of the ordinary shares registered
hereby have been registered under a separate registration statement on Form F-6 (File No. 333-168238).
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(5)
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Rights evidencing the right to purchase Class A ordinary shares, including ordinary shares represented by ADSs, or debt securities.
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(6)
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Units may consist of any combination of the securities registered hereunder.
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The Registrant hereby amends this registration statement
on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which
specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities
Act of 1933 or until the registration statement shall become effective on such date as the Securities and Exchange Commission,
acting pursuant to said Section 8(a), may determine.
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The information in this prospectus is not complete and may be changed. We may not sell these securities until the post-effective amendment to registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting offers to buy these securities in any state where the offer or sale is not permitted.
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Subject to completion,
dated May 8, 2019
PROSPECTUS
$100,000,000
ADSs
Ordinary Shares
Preferred Shares
Warrants
Subscription Rights
Debt Securities
Units
We may offer Class A ordinary shares, par
value $0.003 per share, including Class A ordinary shares represented by American depositary shares, or ADSs, with each ADS representing
two Class A ordinary shares, preferred shares, par value $0.003 per share, warrants, subscription rights, debt securities and/or
units from time to time. When we decide to sell securities, we will provide specific terms of the offered securities, including
the offering prices of the securities, in a prospectus supplement. The securities offered by us pursuant to this prospectus will
have an aggregate public offering price of up to $100,000,000.
The securities covered by this prospectus
may be offered and sold from time to time in one or more offerings, which may be through one or more underwriters, dealers and
agents, or directly to the purchasers. The names of any underwriters, dealers or agents, if any, will be included in a supplement
to this prospectus.
This prospectus describes some of the general
terms that may apply to these securities and the general manner in which they may be offered. The specific terms of any securities
to be offered, and the specific manner in which they may be offered, will be described in one or more supplements to this prospectus.
A prospectus supplement may also add, update or change information contained in this prospectus.
Our ADSs are traded on the NYSE American under the symbol “AMBO”. As of April 24, 2019, the
last reported sale price for our ADSs was $5.01 per ADS. As of that date, the aggregate market value of our outstanding voting
and non-voting common equity held by non-affiliates was approximately $44,559,075 based on 38,582,702 shares of our outstanding
Class A ordinary shares, of which approximately 17,788,054 shares were held by non-affiliates. Pursuant to General Instruction
I.B.5. of Form F-3, in no event will we sell the securities covered hereby in a public primary offering with a value exceeding
more than one-third of the aggregate market value of our voting and non-voting common equity held by non-affiliates in any 12-month
period so long as the aggregate market value of our outstanding voting and non-voting common equity held by non-affiliates remains
below $75,000,000. During the 12 calendar months prior to and including the date of this prospectus, we have not offered or sold
any securities pursuant to General Instruction I.B.5 of Form F-3.
Under our Sixth Amended and Restated Memorandum
and Articles of Association, our authorized share capital is divided into 66,666,667 Class A ordinary shares and 8,333,333 Class
C ordinary shares with 1,666,667 undesignated preferred shares. Dr. Jin Huang, our Chairman and Chief Executive Officer, is the
beneficial owner of all of the issued and outstanding Class C ordinary shares.
Our Class A ordinary shares and Class C
ordinary shares have identical rights, except for the special voting and conversion rights described below:
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Voting rights
— Each
Class A ordinary share is entitled to one vote and each Class C ordinary share is entitled to ten votes on all matters upon which
the ordinary shares are entitled to vote, including the election of directors.
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Conversion rights attaching to
shares
— Each Class C ordinary share is convertible into one Class A ordinary share at any time by the
holder thereof. Class A ordinary shares are not convertible under any circumstances. If at any time Dr. Huang, her affiliates
collectively own less than 5% of the total number of the issued and outstanding Class C ordinary shares, each issued and outstanding
Class C ordinary share shall be automatically and immediately converted into one share of Class A ordinary shares without payment
of additional consideration and no Class C ordinary shares shall thereafter be issuable by us.
For a complete description of our share
capital see “Description of ADSs and Class A Ordinary Shares” on page 7.
Investing in these securities involves
certain risks. Please carefully consider the “Risk Factors” in Item 3(D) of our most recent Annual Report on Form 20-F
incorporated by reference in this prospectus, the “Risk Factors” beginning on page 4 of this prospectus, and in any
applicable prospectus supplement, for a discussion of the factors you should consider carefully before deciding to purchase these
securities.
Neither the Securities and Exchange Commission
nor any state or other securities commission has approved or disapproved of these securities or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal offense.
Prospectus dated , 2019
PROSPECTUS SUMMARY
Our Mission
Our mission is to provide Better Schools,
Better Jobs and Better Life to our students.
Our Business
Our business addresses three critical demands
in China’s education market: the desire for students to be admitted into top secondary and post-secondary schools, the desire
for graduates of those schools to obtain more attractive jobs and the need for schools and corporate clients to optimizing their
teaching and operating environment. We offer high quality, individualized services and products through our combined online and
offline delivery model powered by our proprietary technologies and infrastructure.
We have three business divisions, “Better
Schools”, “Better Jobs” and “Others”, and four operating segments, which are K-12 schools, tutoring,
career enhancement and others. Our K-12 schools and tutoring segments are within our Better Schools division and our career enhancement
segment is within our Better Jobs division. The segment of Others represents the intellectualized operational services provided,
and is classified under the Others division.
We currently deliver our wide range of educational
and career enhancement services and products through integrated offline and online channels in an interactive learning environment,
powered by our proprietary technology platform. This platform enables us to provide individualized content and learning solutions
tailored to each of our students’ needs, and to develop both standards-based and individualized curricula with consistent
high-quality across our schools, tutoring centers, career enhancement centers, training offices and campus.
We offer a variety of services and products
to students, recent graduates, corporate employees and management in China. Our educational services cover K-12 programs and tutoring
services that provide test preparation and tutoring programs, which are offered in our tutoring centers as part of our primary
educational services and product offerings to help students enroll in better schools. Our K-12 schools also help to support our
tutoring programs by providing a strong local brand name and reputation, local educational content expertise and potential student
customers. In addition, we offer international education programs, which are designed to prepare students to study abroad while
specifically addressing the study needs in terms of both language and academics. Our career enhancement services, designed to assist
students and graduates in obtaining better jobs, are offered through our dedicated career enhancement centers and training offices
on campus, as well as through our online programs. Our corporate training services that are designed to improve employees and management’s
soft skills, are typically offered in our training offices, the corporate clients’ offices or hotel conference centers. Furthermore,
in order to support our educational and career enhancement services and product offerings, we also provide a cloud-based learning
engine to accommodate our students’ individual learning habits and enrich their learning experience.
Our Corporate Structure
Principal Executive Office
Our principal executive office is located
at 12th Floor, Tower 1, Financial Street, Chang’an Center, Shijingshan District, Beijing 100043, People’s Republic
of China. Our telephone number at this address is +86 (10) 6206-8000. Our registered office in the Cayman Islands is Walkers Corporate
Limited, Cayman Corporate Centre, 27 Hospital Road, George Town, Grand Cayman KY1-9008, Cayman Islands. Our telephone number at
this address is +1 (345) 949-8066.
Investors should submit any inquiries to
the address and telephone number of our principal executive office. Our principal websites are www.ambow.com and www.ambow.com.cn.
Information contained on our websites is not part of this prospectus. Our agent for service of process in the United States
is C T Corporation System, located at 111 Eighth Avenue, New York, New York 10011.
The Securities We May Offer
We may use this prospectus to offer up to
$100,000,000 of:
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Class A ordinary
shares, including Class A ordinary shares represented by American Depositary shares, or ADSs;
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units, which may consist of any combination of the above securities.
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We may also offer securities of the types
listed above that are convertible or exchangeable into one or more of the securities listed above.
RISK FACTORS
An investment in our securities involves
risk. Before you invest in securities issued by us, you should carefully consider the risks involved. Accordingly, you should carefully
consider:
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the information contained in or incorporated by reference into this prospectus;
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the information contained in or incorporated by reference into any prospectus
supplement relating to specific offerings of securities;
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the risks described in our Annual Report on Form 20-F for our fiscal year
ended December 31, 2018, on file with Securities and Exchange Commission, which is incorporated by reference into this prospectus;
and
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other risks and other information that may be contained in, or incorporated
by reference from, other filings we make with the SEC, including in any prospectus supplement relating to specific offerings of
securities.
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The discussion of risks related to our business
contained in or incorporated by reference into this prospectus or into any prospectus supplement comprises material risks of which
we are aware. If any of the events or developments described actually occurs, our business, financial condition or results of operations
would likely suffer.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration
statement that we filed with the United States Securities and Exchange Commission (the “SEC”) utilizing a shelf registration
process. Under this shelf registration process, we may sell from time to time up to $100,000,000 of any combination of the securities
described in this prospectus.
This prospectus provides you with a general
description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain
specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained
in this prospectus. If there is any inconsistency between the information contained in this prospectus and any prospectus supplement,
you should rely on the information contained in that particular prospectus supplement. You should read both this prospectus and
any prospectus supplement together with additional information described under the heading “Where You Can Find More Information.”
You should rely only on the information
provided in this prospectus and the prospectus supplement, as well as the information incorporated by reference. We have not authorized
anyone to provide you with additional or different information. We are not making an offer of these securities in any jurisdiction
or state where the offer is not permitted. You should not assume that the information in this prospectus, any prospectus supplement
or any documents incorporated by reference herein or therein is accurate as of any date other than the date of the applicable document.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING
STATEMENTS
This prospectus and any applicable prospectus
supplement, including the documents incorporated by reference herein and therein, may contain forward-looking statements that are
based on our current expectations, assumptions, estimates and projections about us and our industry. All statements other than
statements of historical fact in this report are forward-looking statements. These forward-looking statements can be identified
by words or phrases such as ‘‘may,’’ ‘‘will,’’ ‘‘expect,’’
‘‘anticipate,’’ ‘‘estimate,’’ ‘‘plan,’’ ‘‘believe,’’
‘‘is/are likely to’’ or other similar expressions. The forward-looking statements included in this report
relate to, among others:
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Anticipated trends and challenges in our business and the markets in which
we operate;
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Our ability to anticipate market needs or develop new or enhanced services
and products to meet those needs;
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Our ability to compete in our industry and innovation by our competitors;
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Our ability to protect our confidential information and intellectual property
rights;
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Risks associated with opening new learning centers and other strategic
plans;
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Our need to obtain additional funding and our ability to obtain funding
in the future on acceptable terms;
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The impact on our business and results of operations arising from the
defects in our real properties;
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Our ability to create and maintain our positive brand awareness and brand
loyalty;
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Our ability to manage growth; and
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Economic and business conditions in China.
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The forward-looking statements included
in or incorporated by reference into this prospectus and any applicable prospectus supplement are subject to known and unknown
risks, uncertainties and assumptions about our businesses and business environments. These statements reflect our current views
with respect to future events and are not a guarantee of future performance. Actual results of our operations may differ materially
from information contained in the forward-looking statements as a result of risk factors, some of which are described under “Risk
Factors” in the documents incorporated by reference herein.
The forward-looking statements contained
in or incorporated into this prospectus and any applicable prospectus supplement speak only as of the date of hereof or thereof
or of such documents incorporated by reference or, if obtained from third-party studies or reports, the date of the corresponding
study or report, and are expressly qualified in their entirety by the cautionary statements in this prospectus, any applicable
prospectus supplement and the documents incorporated by reference herein and therein. Since we operate in an emerging and evolving
environment and new risk factors and uncertainties emerge from time to time, you should not rely upon forward-looking statements
as predictions of future events. Except as otherwise required by the securities laws of the United States, we undertake no obligation
to update or revise any forward-looking statements to reflect events or circumstances after the date of this prospectus or to reflect
the occurrence of unanticipated events.
USE OF PROCEEDS
Unless the applicable prospectus supplement
states otherwise, the net proceeds from the sale of securities offered by the Company will be used for general corporate purposes,
which may include additions to working capital, capital expenditures, financing of acquisitions and other business combinations,
investments in or extensions of credit to our subsidiaries and the repayment of indebtedness.
CAPITALIZATION AND INDEBTEDNESS
Our capitalization and indebtedness will
be set forth in a prospectus supplement to this prospectus or in a report on Form 6-K subsequently furnished to the SEC and specifically
incorporated herein by reference.
DESCRIPTION OF ADSS AND CLASS A ORDINARY
SHARES
A description of our Class A ordinary shares
can be found in our Registration Statement on Form F-1, as amended, under the Securities Act of 1933, as amended (the “Securities
Act”), as originally filed with the SEC on August 28, 2017 (Registration No. 333-220207) under the heading “Description
of Shares and Governing Documents – Sixth Amended and Restated Memorandum and Articles of Association — Ordinary Shares”,
which description is incorporated by reference herein.
A description of our ADSs can be found in
our Registration Statement on Form F-1, as amended, under the Securities Act of 1933, as amended (the “Securities Act”),
as originally filed with the SEC on August 28, 2017 (Registration No. 333-220207) under the heading “Description of American
Depositary Shares”, which description is incorporated by reference herein.
DESCRIPTION OF PREFERRED SHARES
A description of our preferred shares can
be found in our Registration Statement on Form F-1, as amended, under the Securities Act of 1933, as amended (the “Securities
Act”), as originally filed with the SEC on August 28, 2017 (Registration No. 333-220207) under the heading “Description
of Shares and Governing Documents – Sixth Amended and Restated Memorandum and Articles of Association — Preferred Shares”,
which description is incorporated by reference herein.
As of the date of this prospectus, there
are no outstanding shares of preferred shares of any series.
The material terms of any series of preferred
shares that we offer, together with any material Cayman Islands or United States federal income tax considerations relating to
such preferred shares, will be described in a prospectus supplement.
DESCRIPTION OF WARRANTS
The following summary of certain provisions
of the warrants does not purport to be complete and is subject to, and qualified in its entirety by reference to, the provisions
of the warrant agreement that will be filed with the SEC in connection with the offering of such warrants.
General
We may issue warrants to purchase ordinary
shares, including ordinary shares represented by ADSs, or debt securities. Warrants may be issued independently or together with
any other securities and may be attached to, or separate from, such securities. Each series of warrants will be issued under a
separate warrant agreement to be entered into between us and a warrant agent. The warrant agent will act solely as our agent and
will not assume any obligation or relationship of agency for or with holders or beneficial owners of warrants. The terms of any
warrants to be issued and a description of the material provisions of the applicable warrant agreement will be set forth in the
applicable prospectus supplement.
The applicable prospectus supplement will
describe the following terms of any warrants in respect of which this prospectus is being delivered:
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the title of such warrants;
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the aggregate number of such warrants;
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the price or prices at which such warrants will be issued and exercised;
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the currency or currencies in which the price of such warrants will be
payable;
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the securities purchasable upon exercise of such warrants;
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the date on which the right to exercise such warrants shall commence and
the date on which such right shall expire;
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if applicable, the minimum or maximum amount of such warrants which may
be exercised at any one time;
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if applicable, the designation and terms of the securities with which
such warrants are issued and the number of such warrants issued with each such security;
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if applicable, the date on and after which such warrants and the related
securities will be separately transferable;
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information with respect to book-entry procedures, if any;
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any material Cayman Islands or United States federal income tax consequences;
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the antidilution provisions of the warrants, if any; and
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any other terms of such warrants, including terms, procedures and limitations
relating to the exchange and exercise of such warrants.
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Amendments and Supplements to Warrant Agreement
We and the warrant agent may amend or supplement
the warrant agreement for a series of warrants without the consent of the holders of the warrants issued thereunder to effect changes
that are not inconsistent with the provisions of the warrants and that do not materially and adversely affect the interests of
the holders of the warrants.
DESCRIPTION OF SUBSCRIPTION RIGHTS
The following summary of certain provisions
of the subscription rights does not purport to be complete and is subject to, and qualified in its entirety by reference to, the
provisions of the certificate evidencing the subscription rights that will be filed with the SEC in connection with the offering
of such subscription rights.
General
We may issue subscription rights to purchase
ordinary shares, including ordinary shares represented by ADSs, or debt securities. Subscription rights may be issued independently
or together with any other offered security and may or may not be transferable by the person purchasing or receiving the subscription
rights. In connection with any subscription rights offering to our shareholders, we may enter into a standby underwriting arrangement
with one or more underwriters pursuant to which such underwriters will purchase any offered securities remaining unsubscribed for
after such subscription rights offering. In connection with a subscription rights offering to our shareholders, we will distribute
certificates evidencing the subscription rights and a prospectus supplement to our shareholders on the record date that we set
for receiving subscription rights in such subscription rights offering.
The applicable prospectus supplement will
describe the following terms of subscription rights in respect of which this prospectus is being delivered:
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the title of such subscription rights;
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the securities for which such subscription rights are exercisable;
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the exercise price for such subscription rights;
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the number of such subscription rights issued to each shareholder;
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the extent to which such subscription rights are transferable;
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if applicable, a discussion of the material Cayman Islands or United States
federal income tax considerations applicable to the issuance or exercise of such subscription rights;
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the date on which the right to exercise such subscription rights shall
commence, and the date on which such rights shall expire (subject to any extension);
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the extent to which such subscription rights include an over-subscription
privilege with respect to unsubscribed securities;
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if applicable, the material terms of any standby underwriting or other
purchase arrangement that we may enter into in connection with the subscription rights offering; and
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any other terms of such subscription rights, including terms, procedures
and limitations relating to the exchange and exercise of such subscription rights.
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Exercise of Subscription Rights
Each subscription right will entitle the
holder of the subscription right to purchase for cash such amount of securities at such exercise price as shall be set forth in,
or be determinable as set forth in, the prospectus supplement relating to the subscription rights offered thereby. Subscription
rights may be exercised at any time up to the close of business on the expiration date for such subscription rights set forth in
the prospectus supplement. After the close of business on the expiration date, all unexercised subscription rights will become
void.
Subscription rights may be exercised as
set forth in the prospectus supplement relating to the subscription rights offered thereby. Upon receipt of payment and the subscription
rights certificate properly completed and duly executed at the corporate trust office of the subscription rights agent or any other
office indicated in the prospectus supplement, we will forward, as soon as practicable, the ordinary shares purchasable upon such
exercise. We may determine to offer any unsubscribed offered securities directly to persons other than shareholders, to or through
agents, underwriters or dealers or through a combination of such methods, including pursuant to standby underwriting arrangements,
as set forth in the applicable prospectus supplement.
DESCRIPTION OF UNITS
The following summary of certain provisions
of the units does not purport to be complete and is subject to, and qualified in its entirety by reference to, the provisions of
the certificate evidencing the units that will be filed with the SEC in connection with the offering of such units.
We may issue units comprised of one or more
of the other securities described in this prospectus in any combination. Each unit will be issued so that the holder of the unit
is also the holder, with the rights and obligations of a holder, of each security included in the unit. The unit agreement under
which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time
or at any time before a specified date or upon the occurrence of a specified event or occurrence.
The applicable prospectus supplement will
describe:
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the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances
those securities may be held or transferred separately;
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any unit agreement under which the units will be issued;
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any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the
units; and
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whether the units will be issued in fully registered or global form.
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DESCRIPTION OF DEBT SECURITIES
We may issue debt securities from time to
time in one or more series, under one or more indentures, each dated as of a date on or prior to the issuance of the debt securities
to which it relates. We may issue senior debt securities and subordinated debt securities pursuant to separate indentures, a senior
indenture and a subordinated indenture, respectively, in each case between us and the trustee named in the indenture. We have filed
forms of these documents as exhibits to the registration statement, of which this prospectus forms a part. The senior indenture
and the subordinated indenture, as amended or supplemented from time to time, are sometimes referred to individually as an “indenture”
and collectively as the “indentures.” Each indenture will be subject to and governed by the Trust Indenture
Act and will be construed in accordance with and governed by the internal laws of the State of New York. The aggregate principal
amount of debt securities which may be issued under each indenture will be unlimited and each indenture will contain the specific
terms of any series of debt securities or provide that those terms must be set forth in or determined pursuant to, an authorizing
resolution, as defined in the applicable prospectus supplement, and/or a supplemental indenture, if any, relating to such series.
Our debt securities may be convertible or exchangeable into any of our equity or other debt securities.
Our statements below relating to the debt
securities and the indentures are summaries of their anticipated provisions, are not complete and are subject to, and are qualified
in their entirety by reference to, all of the provisions of the applicable indenture and any applicable Cayman Islands or United
States federal income tax considerations as well as any applicable modifications of or additions to the general terms described
below in the applicable prospectus supplement or supplemental indenture. For a description of the terms of a particular issue of
debt securities, reference must be made to both the related prospectus supplement and to the following description.
General
Neither indenture limits the amount of debt
securities which may be issued. The debt securities may be issued in one or more series. The senior debt securities will be unsecured
and will rank on a parity with all of our other unsecured and unsubordinated indebtedness. Each series of subordinated debt securities
will be unsecured and subordinated to all present and future senior indebtedness. Any such debt securities will be described in
an accompanying prospectus supplement.
You should read the applicable indenture
and subsequent filings relating to the particular series of debt securities for the following terms of the offered debt securities:
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the designation, aggregate principal amount and authorized denominations;
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the issue price, expressed as a percentage of the aggregate principal
amount;
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the interest rate per annum, if any;
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if the offered debt securities provide for interest payments, the date
from which interest will accrue, the dates on which interest will be payable, the date on which payment of interest will commence
and the regular record dates for interest payment dates;
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any optional or mandatory sinking fund provisions or exchangeability provisions;
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the terms and conditions upon which conversion of any convertible debt
securities may be effected, including the conversion price, the conversion period and other conversion provisions;
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the date, if any, after which and the price or prices at which the offered
debt securities may be optionally redeemed or must be mandatorily redeemed and any other terms and provisions of optional or mandatory
redemptions;
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if other than denominations of $1,000 and any integral multiple thereof,
the denominations in which offered debt securities of the series will be issuable;
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if other than the full principal amount, the portion of the principal
amount of offered debt securities of the series which will be payable upon acceleration or provable in bankruptcy;
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any events of default not set forth in this prospectus;
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the currency or currencies, including composite currencies, in which principal,
premium and interest will be payable, if other than the currency of the United States of America;
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if principal, premium or interest is payable, at our election or at the
election of any holder, in a currency other than that in which the offered debt securities of the series are stated to be payable,
the period or periods within which, and the terms and conditions upon which, the election may be made;
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whether interest will be payable in cash or additional securities at our
or the holder’s option and the terms and conditions upon which the election may be made;
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if denominated in a currency or currencies other than the currency of
the United States of America, the equivalent price in the currency of the United States of America for purposes of determining
the voting rights of holders of those debt securities under the applicable indenture;
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if the amount of payments of principal, premium or interest may be determined
with reference to an index, formula or other method based on a coin or currency other than that in which the offered debt securities
of the series are stated to be payable, the manner in which the amounts will be determined;
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any restrictive covenants or other material terms relating to the offered
debt securities;
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whether the offered debt securities will be issued in the form of global
securities or certificates in registered or bearer form;
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any terms with respect to subordination;
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any listing on any securities exchange or quotation system; and
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additional provisions, if any, related to defeasance and discharge of
the offered debt securities.
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Subsequent filings may include additional
terms not listed above. Unless otherwise indicated in subsequent filings with the Commission relating to the indenture, principal,
premium and interest will be payable and the debt securities will be transferable at the corporate trust office of the applicable
trustee. Unless other arrangements are made or set forth in subsequent filings or a supplemental indenture, principal, premium
and interest will be paid by checks mailed to the holders at their registered addresses.
Unless otherwise indicated in subsequent
filings with the Commission, the debt securities will be issued only in fully registered form without coupons, in denominations
of $1,000 or any integral multiple thereof. No service charge will be made for any transfer or exchange of the debt securities,
but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with these debt
securities.
Some or all of the debt securities may be
issued as discounted debt securities to be sold at a substantial discount below the stated principal amount. Cayman Islands or
United States federal income tax consequences and other special considerations applicable to any discounted securities will be
described in subsequent filings with the Commission relating to those securities.
We refer you to applicable subsequent filings
with respect to any deletions or additions or modifications from the description contained in this prospectus.
Senior Debt
We may issue senior debt securities under
the senior debt indenture. These senior debt securities will rank on an equal basis with all our other unsecured debt except subordinated
debt.
Subordinated Debt
We may issue subordinated debt securities
under the subordinated debt indenture. Subordinated debt will rank subordinate and junior in right of payment, to the extent set
forth in the subordinated debt indenture, to all our senior debt (both secured and unsecured).
In general, the holders of all senior debt
are first entitled to receive payment of the full amount unpaid on senior debt before the holders of any of the subordinated debt
securities are entitled to receive a payment on account of the principal or interest on the indebtedness evidenced by the subordinated
debt securities in certain events.
If we default in the payment of any principal
of, or premium, if any, or interest on any senior debt when it becomes due and payable after any applicable grace period, then,
unless and until the default is cured or waived or ceases to exist, we cannot make a payment on account of or redeem or otherwise
acquire the subordinated debt securities.
If there is any insolvency, bankruptcy,
liquidation or other similar proceeding relating to us, then all senior debt must be paid in full before any payment may be made
to any holders of subordinated debt securities.
Furthermore, if we default in the payment
of the principal of and accrued interest on any subordinated debt securities that is declared due and payable upon an event of
default under the subordinated debt indenture, holders of all our senior debt will first be entitled to receive payment in full
in cash before holders of such subordinated debt can receive any payments.
Senior debt means:
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the principal, premium, if any, interest and any other amounts owing in
respect of our indebtedness for money borrowed and indebtedness evidenced by securities, notes, debentures, bonds or other similar
instruments issued by us, including the senior debt securities or letters of credit;
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all capitalized lease obligations;
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all hedging obligations;
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all obligations representing the deferred purchase price of property;
and
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all deferrals, renewals, extensions and refundings of obligations of the
type referred to above;
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but senior debt does not include:
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subordinated debt securities; and
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any indebtedness that by its terms is subordinated to, or ranks on an
equal basis with, our subordinated debt securities.
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Covenants
Under the terms of the indenture, we covenant,
among other things:
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that we will duly and punctually pay the principal of and interest, if
any, on the offered debt securities in accordance with the terms of such debt securities and the applicable indenture;
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that we will deliver to the trustee after the end of each fiscal year
a compliance certificate as to whether we have kept, observed, performed and fulfilled our obligations and each and every covenant
contained under the applicable indenture;
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Any series of offered debt securities may
have covenants in addition to or differing from those included in the applicable indenture which will be described in subsequent
filings prepared in connection with the offering of such securities, limiting or restricting, among other things:
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the ability of us or our subsidiaries to incur either secured or unsecured
debt, or both;
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the ability to make certain payments, dividends, redemptions or repurchases;
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our ability to create dividend and other payment restrictions affecting
our subsidiaries;
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our ability to make investments;
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mergers and consolidations by us or our subsidiaries;
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our ability to enter into transactions with affiliates;
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our ability to incur liens; and
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sale and leaseback transactions.
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Modification of the Indentures
Each indenture and the rights of the respective
holders may be modified by us only with the consent of holders of not less than a majority in aggregate principal amount of the
outstanding debt securities of all series under the respective indenture affected by the modification, taken together as a class,
other than any modification to:
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cure ambiguities, defects or inconsistencies;
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add to the covenants, restrictions or events of default;
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provide for a successor obligor under the relevant indenture; and
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make any other change that does not adversely affect the rights of holder.
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No modification that:
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changes the amount of securities whose holders must consent to an amendment,
supplement or waiver;
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extends the fixed maturity of any debt securities, or reduces the principal
amount thereof, or reduces the rate or extend the time of payment of interest thereon, or reduce any premium payable upon the redemption
thereof ;
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will be effective against any holder without
his, her or its consent.
Events of Default
Each indenture defines an event of default
for the debt securities of any series as being any one of the following events:
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default in any payment of interest when due which continues for 90 days;
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default in any payment of principal or premium at maturity;
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default in the deposit of any sinking fund payment when due;
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default in the performance of any covenant in the debt securities or the
applicable indenture which continues for 90 days after we receive notice of the default;
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events of bankruptcy, insolvency or reorganization.
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An event of default of one series of debt
securities does not necessarily constitute an event of default with respect to any other series of debt securities.
There may be such other or different events
of default as described in an applicable subsequent filing with respect to any class or series of offered debt securities.
In case an event of default occurs and continues
for the debt securities of any series, the applicable trustee or the holders of not less than 25% in aggregate principal amount
of the debt securities then outstanding of that series may declare the principal and accrued but unpaid interest of the debt securities
of that series to be due and payable. Any event of default for the debt securities of any series which has been cured may be waived
by the holders of a majority in aggregate principal amount of the debt securities of that series then outstanding.
Each indenture requires us to file annually
after debt securities are issued under that indenture with the applicable trustee a written statement signed by two of our officers
as to the absence of material defaults under the terms of that indenture. Each indenture provides that the applicable trustee may
withhold notice to the holders of any default if it considers it in the interest of the holders to do so, except notice of a default
in payment of principal, premium or interest.
Subject to the duties of the trustee in
case an event of default occurs and continues, each indenture provides that the trustee is under no obligation to exercise any
of its rights or powers under that indenture at the request, order or direction of holders unless the holders have offered to the
trustee reasonable indemnity. Subject to these provisions for indemnification and the rights of the trustee, each indenture provides
that the holders of a majority in principal amount of the debt securities of any series then outstanding 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 as long as the exercise of that right does not conflict with any law or the indenture.
Defeasance and Discharge
The terms of each indenture provide us with
the option to be discharged from any and all obligations in respect of the debt securities issued thereunder upon the deposit with
the trustee, in trust, of money or U.S. government obligations, or both, which through the payment of interest and principal in
accordance with their terms will provide money in an amount sufficient to pay any installment of principal, premium and interest
on, and any mandatory sinking fund payments in respect of, the debt securities on the stated maturity of the payments in accordance
with the terms of the debt securities and the indenture governing the debt securities. This right may only be exercised if, among
other things, we have received from, or there has been published by, the United States Internal Revenue Service a ruling to the
effect that such a discharge will not be deemed, or result in, a taxable event with respect to holders. This discharge would not
apply to our obligations to register the transfer or exchange of debt securities, to replace stolen, lost or mutilated debt securities,
to maintain paying agencies and hold moneys for payment in trust.
Defeasance of Certain Covenants
The terms of the debt securities provide
us with the right not to comply with specified covenants and that specified events of default described in a subsequent filing
will not apply. In order to exercise this right, we will be required to deposit with the trustee money or U.S. government obligations,
or both, which through the payment of interest and principal will provide money in an amount sufficient to pay principal, premium,
if any, and interest on, and any mandatory sinking fund payments in respect of, the debt securities on the stated maturity of such
payments in accordance with the terms of the debt securities and the indenture governing such debt securities. We will also be
required to deliver to the trustee an opinion of counsel to the effect that the deposit and related covenant defeasance will not
cause the holders of such series to recognize income, gain or loss for federal income tax purposes.
A subsequent filing may further describe
the provisions, if any, of any particular series of offered debt securities permitting a discharge defeasance.
Global Securities
The debt securities of a series may be issued
in whole or in part in the form of one or more global securities that will be deposited with, or on behalf of, a depository identified
in an applicable subsequent filing and registered in the name of the depository or a nominee for the depository. In such a case,
one or more global securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate
principal amount of outstanding debt securities of the series to be represented by the global security or securities. Unless and
until it is exchanged in whole or in part for debt securities in definitive certificated form, a global security may not be transferred
except as a whole by the depository for the global security to a nominee of the depository or by a nominee of the depository to
the depository or another nominee of the depository or by the depository or any nominee to a successor depository for that series
or a nominee of the successor depository and except in the circumstances described in an applicable subsequent filing.
We expect that the following provisions
will apply to depository arrangements for any portion of a series of debt securities to be represented by a global security. Any
additional or different terms of the depository arrangement will be described in an applicable subsequent filing.
Upon the issuance of any global security,
and the deposit of that global security with or on behalf of the depository for the global security, the depository will credit,
on its book-entry registration and transfer system, the principal amounts of the debt securities represented by that global security
to the accounts of institutions that have accounts with the depository or its nominee. The accounts to be credited will be designated
by the underwriters or agents engaging in the distribution of the debt securities or by us, if the debt securities are offered
and sold directly by us. Ownership of beneficial interests in a global security will be limited to participating institutions or
persons that may hold interests through such participating institutions. Ownership of beneficial interests by participating institutions
in the global security will be shown on, and the transfer of the beneficial interests will be effected only through, records maintained
by the depository for the global security or by its nominee. Ownership of beneficial interests in the global security by persons
that hold through participating institutions will be shown on, and the transfer of the beneficial interests within the participating
institutions will be effected only through, records maintained by those participating institutions. The laws of some jurisdictions
may require that purchasers of securities take physical delivery of the securities in certificated form. The foregoing limitations
and such laws may impair the ability to transfer beneficial interests in the global securities.
So long as the depository for a global security,
or its nominee, is the registered owner of that global security, the depository or its nominee, as the case may be, will be considered
the sole owner or holder of the debt securities represented by the global security for all purposes under the applicable indenture.
Unless otherwise specified in an applicable subsequent filing and except as specified below, owners of beneficial interests in
the global security will not be entitled to have debt securities of the series represented by the global security registered in
their names, will not receive or be entitled to receive physical delivery of debt securities of the series in certificated form
and will not be considered the holders thereof for any purposes under the indenture. Accordingly, each person owning a beneficial
interest in the global security must rely on the procedures of the depository and, if such person is not a participating institution,
on the procedures of the participating institution through which the person owns its interest, to exercise any rights of a holder
under the indenture.
The depository may grant proxies and otherwise
authorize participating institutions to give or take any request, demand, authorization, direction, notice, consent, waiver or
other action which a holder is entitled to give or take under the applicable indenture. We understand that, under existing industry
practices, if we request any action of holders or any owner of a beneficial interest in the global security desires to give any
notice or take any action a holder is entitled to give or take under the applicable indenture, the depository would authorize the
participating institutions to give the notice or take the action, and participating institutions would authorize beneficial owners
owning through such participating institutions to give the notice or take the action or would otherwise act upon the instructions
of beneficial owners owning through them.
Unless otherwise specified in applicable
subsequent filings, payments of principal, premium and interest on debt securities represented by a global security registered
in the name of a depository or its nominee will be made by us to the depository or its nominee, as the case may be, as the registered
owner of the global security.
We expect that the depository for any debt
securities represented by a global security, upon receipt of any payment of principal, premium or interest, will credit participating
institutions’ accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount
of the global security as shown on the records of the depository. We also expect that payments by participating institutions to
owners of beneficial interests in the global security held through those participating institutions will be governed by standing
instructions and customary practices, as is now the case with the securities held for the accounts of customers registered in street
name, and will be the responsibility of those participating institutions. None of us, the trustees or any agent of ours or the
trustees will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial
interests in a global security, or for maintaining, supervising or reviewing any records relating to those beneficial interests.
Unless otherwise specified in the applicable
subsequent filings, a global security of any series will be exchangeable for certificated debt securities of the same series only
if:
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the depository for such global securities notifies us that it is unwilling
or unable to continue as depository or such depository ceases to be a clearing agency registered under the Exchange Act and, in
either case, a successor depository is not appointed by us within 90 days after we receive the notice or become aware of the ineligibility;
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we in our sole discretion determine that the global securities shall be
exchangeable for certificated debt securities; or
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there shall have occurred and be continuing an event of default under
the applicable indenture with respect to the debt securities of that series.
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Upon any exchange, owners of beneficial
interests in the global security or securities will be entitled to physical delivery of individual debt securities in certificated
form of like tenor and terms equal in principal amount to their beneficial interests, and to have the debt securities in certificated
form registered in the names of the beneficial owners, which names are expected to be provided by the depository’s relevant
participating institutions to the applicable trustee.
In the event that the Depository Trust Company,
or DTC, acts as depository for the global securities of any series, the global securities will be issued as fully registered securities
registered in the name of Cede & Co., DTC’s partnership nominee or such other name as may be requested by an authorized
representative of DTC.
DTC, the world’s largest securities
depository, is a limited-purpose trust company under the New York Banking Law, a “banking organization” within the
meaning of the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning
of the New York Uniform Commercial Code, and a clearing agency registered pursuant to Section 17A of the Securities Exchange Act
of 1934. DTC holds and provides asset servicing for over 3.5 million issues of U.S. and non-U.S. equity issues, corporate and
municipal debt issues, and money market instruments (from over 100 countries) that DTC’s participants (“Direct Participants”)
deposit with DTC. DTC also facilitates the post-trade settlement among Direct Participants of sales and other securities transaction
sin depositaries securities, through electronic computerized book-entry transfers and pledges between Direct Participants’
accounts. This eliminates the need for physical movement of securities certificates. Direct Participants include both U.S. and
non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations. DTC is
a wholly-owned subsidiary of The Depository Trust & Clearing Company (“DTCC”). DTCC is the holding company for
DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies.
DTCC is owned by the users of its regulated subsidiaries. Access to the DTC system is also available to others such as both U.S.
and non-U.S. securities brokers and dealers, banks trust companies, and clearing corporations that clear through or maintain a
custodial relationship with a Direct Participant, either directly or indirectly (“Indirect Participants”). DTC has
a Standard & Poor’s rating of AA+. The DTC Rules applicable to its Participants are on file with the Securities and
Exchange Commission. More information about DTC can be found at
www.dtcc.com
.
Purchases of Securities under the DTC system
must be made by or through Direct Participants, which will receive a credit for the Securities on DTC's records. The ownership
interest of each actual purchaser of each Security ("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation from DTC of their purchase. Beneficial Owners are,
however, expected to receive written confirmations providing details of the transaction, as well as periodic statements of their
holdings, from the Direct or Indirect Participant through which the Beneficial Owner entered into the transaction. Transfers of
ownership interests in the Securities are to be accomplished by entries made on the books of Direct and Indirect Participants acting
on behalf of Beneficial Owners. Beneficial Owners will not receive certificates representing their ownership interests in Securities,
except in the event that use of the book-entry system for the Securities is discontinued.
To facilitate subsequent transfers, all
Securities deposited by Direct Participants with DTC are registered in the name of DTC's partnership nominee, Cede & Co., or
such other name as may be requested by an authorized representative of DTC. The deposit of Securities with DTC and their registration
in the name of Cede
&
Co. or such other DTC nominee do not effect any change in beneficial ownership. DTC has no knowledge
of the actual Beneficial Owners of the Securities; DTC's records reflect only the identity of the Direct Participants to whose
accounts such Securities are credited, which may or may not be the Beneficial Owners. The Direct and Indirect Participants will
remain responsible for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications
by DTC to Direct Participants, by Direct Participants to Indirect Participants, and by Direct Participants and Indirect Participants
to Beneficial Owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be
in effect from time to time. Beneficial Owners of Securities may wish to take certain steps to augment the transmission to them
of notices of significant events with respect to the Securities, such as redemptions, tenders, defaults, and proposed amendments
to the Security documents. For example, Beneficial Owners of Securities may wish to ascertain that the nominee holding the Securities
for their benefit has agreed to obtain and transmit notices to Beneficial Owners. In the alternative, Beneficial Owners may wish
to provide their names and addresses to the registrar and request that copies of notices be provided directly to them.
Redemption notices shall be sent to DTC.
If less than all of the Securities within an issue are being redeemed, DTC's practice is to determine by lot the amount of the
interest of each Direct Participant in such issue to be redeemed.
Neither DTC nor Cede & Co. (nor any
other DTC nominee) will consent or vote with respect to Securities unless authorized by a Direct Participant in accordance with
DTC's MMI Procedures. Under its usual procedures, DTC mails an Omnibus Proxy to Issuer as soon as possible after the record date.
The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those Direct Participants to whose accounts Securities
are credited on the record date (identified in a listing attached to the Omnibus Proxy).
Redemption proceeds, distributions, and
dividend payments on the Securities will be made to Cede & Co., or such other nominee as may be requested by an authorized
representative of DTC. DTC's practice is to credit Direct Participants' accounts upon DTC's receipt of funds and corresponding
detail information from Issuer or Agent, on payable date in accordance with their respective holdings shown on DTC's records. Payments
by Participants to Beneficial Owners will be governed by standing instructions and customary practices, as is the case with securities
held for the accounts of customers in bearer form or registered in "street name," and will be the responsibility of such
Participant and not of DTC, Agent, or Issuer, subject to any statutory or regulatory requirements as may be in effect from time
to time. Payment of redemption proceeds, distributions, and dividend payments to Cede & Co. (or such other nominee as may be
requested by an authorized representative of DTC) is the responsibility of Issuer or Agent, disbursement of such payments to Direct
Participants will be the responsibility of DTC, and disbursement of such payments to the Beneficial Owners will be the responsibility
of Direct and Indirect Participants.
DTC may discontinue providing its services
as depository with respect to the Securities at any time by giving reasonable notice to Issuer or Agent. Under such circumstances,
in the event that a successor depository is not obtained, Security certificates are required to be printed and delivered.
Issuer may decide to discontinue use of
the system of book-entry-only transfers through DTC (or a successor securities depository). In that event, Security certificates
will be printed and delivered to DTC.
The information in this section concerning
DTC and DTC’s book-entry system has been obtained from sources that we believe to be reliable, but we take no responsibility
for its accuracy.
PLAN OF DISTRIBUTION
We may offer and sell, from time to time,
some or all of the securities covered by this prospectus up to an aggregate public offering price of $100,000,000. We have registered
the securities covered by this prospectus for offer and sale by us so that those securities may be freely sold to the public by
us. Registration of the securities covered by this prospectus does not mean, however, that those securities necessarily will be
offered or sold.
Securities covered by this prospectus may
be sold from time to time, in one or more transactions, at market prices prevailing at the time of sale, at prices related to market
prices, at a fixed price or prices subject to change, at varying prices determined at the time of sale or at negotiated prices.
The securities being offered by this prospectus may be sold:
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to or through one or more underwriters on a firm commitment or agency
basis;
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through put or call option transactions relating to the securities;
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through broker-dealers (acting as agent or principal);
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directly to purchasers, through a specific bidding or auction process,
on a negotiated basis or otherwise;
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through any other method permitted pursuant to applicable law; or
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through a combination of any such methods of sale.
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At any time a particular offer of the securities
covered by this prospectus is made, a revised prospectus or prospectus supplement, if required, will be distributed which will
set forth the aggregate amount of securities covered by this prospectus being offered and the terms of the offering, including
the name or names of any underwriters, dealers, brokers or agents, any discounts, commissions, concessions and other items constituting
compensation from us and any discounts, commissions or concessions allowed or reallowed or paid to dealers. Such prospectus supplement,
and, if necessary, a post-effective amendment to the registration statement of which this prospectus is a part, will be filed with
the SEC to reflect the disclosure of additional information with respect to the distribution of the securities covered by this
prospectus. In order to comply with the securities laws of certain states, if applicable, the securities sold under this prospectus
may only be sold through registered or licensed broker-dealers. In addition, in some states the securities may not be sold unless
they have been registered or qualified for sale in the applicable state or an exemption from registration or qualification requirements
is available and is complied with.
Any public offering price and any discounts
or concessions allowed or reallowed or paid to dealers may be changed from time to time.
The distribution of securities may be effected
from time to time in one or more transactions, including block transactions and transactions on the NYSE American or any other
organized market where the securities may be traded. The securities may be sold at a fixed price or prices, which may be changed,
or at market prices prevailing at the time of sale, at prices relating to the prevailing market prices or at negotiated prices.
The consideration may be cash or another form negotiated by the parties. Agents, underwriters or broker-dealers may be paid compensation
for offering and selling the securities. That compensation may be in the form of discounts, concessions or commissions to be received
from us or from the purchasers of the securities. Any dealers and agents participating in the distribution of the securities may
be deemed to be underwriters, and compensation received by them on resale of the securities may be deemed to be underwriting discounts.
If any such dealers or agents were deemed to be underwriters, they may be subject to statutory liabilities under the Securities
Act.
Agents may from time to time solicit offers
to purchase the securities. If required, we will name in the applicable prospectus supplement any agent involved in the offer or
sale of the securities and set forth any compensation payable to the agent. Unless otherwise indicated in the prospectus supplement,
any agent will be acting on a best efforts basis for the period of its appointment. Any agent selling the securities covered by
this prospectus may be deemed to be an underwriter, as that term is defined in the Securities Act, of the securities.
If underwriters are used in a sale, securities
will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale, or under delayed
delivery contracts or other contractual commitments. Securities may be offered to the public either through underwriting syndicates
represented by one or more managing underwriters or directly by one or more firms acting as underwriters. If an underwriter or
underwriters are used in the sale of securities, an underwriting agreement will be executed with the underwriter or underwriters,
as well as any other underwriter or underwriters, with respect to a particular underwritten offering of securities, and will set
forth the terms of the transactions, including compensation of the underwriters and dealers and the public offering price, if applicable.
The prospectus and prospectus supplement will be used by the underwriters to resell the securities.
If a dealer is used in the sale of the securities,
we or an underwriter will sell the securities to the dealer, as principal. The dealer may then resell the securities to the public
at varying prices to be determined by the dealer at the time of resale. To the extent required, we will set forth in the prospectus
supplement the name of the dealer and the terms of the transactions.
We may directly solicit offers to purchase
the securities and may make sales of securities directly to institutional investors or others. These persons may be deemed to be
underwriters within the meaning of the Securities Act with respect to any resale of the securities. To the extent required, the
prospectus supplement will describe the terms of any such sales, including the terms of any bidding or auction process, if used.
Agents, underwriters and dealers may be
entitled under agreements which may be entered into with us to indemnification by us against specified liabilities, including liabilities
incurred under the Securities Act, or to contribution by us to payments they may be required to make in respect of such liabilities.
If required, the prospectus supplement will describe the terms and conditions of the indemnification or contribution. Some of the
agents, underwriters or dealers, or their affiliates may be customers of, engage in transactions with or perform services for us,
our subsidiaries, the Selling Shareholders or their affiliates.
Under the securities laws of some jurisdictions,
the securities offered by this prospectus may be sold in those jurisdictions only through registered or licensed brokers or dealers.
Any person participating in the distribution
of securities registered under the registration statement that includes this prospectus will be subject to applicable provisions
of the Exchange Act, and the applicable SEC rules and regulations, including, among others, Regulation M, which may limit the timing
of purchases and sales of any of our securities by that person. Furthermore, Regulation M may restrict the ability of any person
engaged in the distribution of our securities to engage in market-making activities with respect to our securities. These restrictions
may affect the marketability of our securities and the ability of any person or entity to engage in market-making activities with
respect to our securities.
Certain persons participating in an offering
may engage in over-allotment, stabilizing transactions, short-covering transactions and penalty bids that stabilize, maintain or
otherwise affect the price of the offered securities. These activities may maintain the price of the offered securities at levels
above those that might otherwise prevail in the open market, including by entering stabilizing bids, effecting syndicate covering
transactions or imposing penalty bids, each of which is described below.
|
|
·
|
A stabilizing bid means the placing of any bid, or the effecting of any
purchase, for the purpose of pegging, fixing or maintaining the price of a security.
|
|
|
·
|
A syndicate covering transaction means the placing of any bid on behalf
of the underwriting syndicate or the effecting of any purchase to reduce a short position created in connection with the offering.
|
|
|
·
|
A penalty bid means an arrangement that permits the managing underwriter
to reclaim a selling concession from a syndicate member in connection with the offering when offered securities originally sold
by the syndicate member are purchased in syndicate covering transactions.
|
These transactions may be effected on an
exchange or automated quotation system, if the securities are listed on that exchange or admitted for trading on that automated
quotation system, or in the over-the-counter market or otherwise.
If so indicated in the applicable prospectus
supplement, we will authorize agents, underwriters or dealers to solicit offers from certain types of institutions to purchase
offered securities from us at the public offering price set forth in such prospectus supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date in the future. Such contracts will be subject only to those conditions set
forth in the prospectus supplement and the prospectus supplement will set forth the commission payable for solicitation of such
contracts.
In addition, ordinary shares may be issued
upon conversion of or in exchange for debt securities or other securities.
Each series of offered securities, other
than the ordinary shares, will be a new issue of securities and will have no established trading market. Any underwriters to whom
offered securities are sold for public offering and sale may make a market in such offered securities, but such underwriters will
not be obligated to do so and may discontinue any market making at any time without notice. The offered securities may or may not
be listed on a national securities exchange. No assurance can be given that there will be a market for the offered securities.
Any securities that qualify for sale pursuant
to Rule 144 or Regulation S under the Securities Act may be sold under Rule 144 or Regulation S rather than pursuant to this prospectus.
To the extent that we make sales to or through
one or more underwriters or agents in at-the-market offerings, we will do so pursuant to the terms of a distribution agreement
between us, the Selling Shareholders and the underwriters or agents. If we engage in at-the-market sales pursuant to a distribution
agreement, we will offer and sell our ordinary shares to or through one or more underwriters or agents, which may act on an agency
basis or on a principal basis. During the term of any such agreement, we may sell ordinary shares on a daily basis in exchange
transactions or otherwise as we agree with the underwriters or agents. The distribution agreement will provide that any ordinary
shares sold will be sold at prices related to the then prevailing market prices for our ordinary shares. Therefore, exact figures
regarding proceeds that will be raised or commissions to be paid cannot be determined at this time and will be described in a prospectus
supplement. Pursuant to the terms of the distribution agreement, we also may agree to sell, and the relevant underwriters or agents
may agree to solicit offers to purchase, blocks of our ordinary shares or other securities. The terms of each such distribution
agreement will be set forth in more detail in a prospectus supplement to this prospectus.
In connection with offerings made through
underwriters or agents, we may enter into agreements with such underwriters or agents pursuant to which we receive our outstanding
securities in consideration for the securities being offered to the public for cash. In connection with these arrangements, the
underwriters or agents may also sell securities covered by this prospectus to hedge their positions in these outstanding securities,
including in short sale transactions. If so, the underwriters or agents may use the securities received from us under these arrangements
to close out any related open borrowings of securities.
One or more firms, referred to as “remarketing
firms,” may also offer or sell the securities, if the prospectus supplement so indicates, in connection with a remarketing
arrangement upon their purchase. Remarketing firms will act as principals for their own accounts or as agents for us. These remarketing
firms will offer or sell the securities in accordance with a redemption or repayment pursuant to the terms of the securities. The
prospectus supplement will identify any remarketing firm and the terms of its agreement, if any, with us and will describe the
remarketing firm’s compensation. Remarketing firms may be deemed to be underwriters in connection with the securities they
remarket. Remarketing firms may be entitled under agreements that may be entered into with us to indemnification by us against
certain civil liabilities, including liabilities under the Securities Act and may be customers of, engage in transactions with
or perform services for us in the ordinary course of business.
We may enter into derivative transactions
with third parties or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If
the applicable prospectus supplement indicates, in connection with those derivatives, such third parties (or affiliates of such
third parties) may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale
transactions. If so, such third parties (or affiliates of such third parties) may use securities pledged by us or borrowed from
us or others to settle those sales or to close out any related open borrowings of shares, and may use securities received from
us in settlement of those derivatives to close out any related open borrowings of shares. The third parties (or affiliates of such
third parties) in such sale transactions will be underwriters and, if not identified in this prospectus, will be identified in
the applicable prospectus supplement (or a post-effective amendment).
We may loan or pledge securities to a financial
institution or other third party that in turn may sell the securities using this prospectus. Such financial institution or third
party may transfer its short position to investors in our securities or in connection with a simultaneous offering of other securities
offered by this prospectus or in connection with a simultaneous offering of other securities offered by this prospectus.
EXPENSES
The following table sets forth an estimate
of the fees and expenses relating to the issuance and distribution of the securities being registered hereby, all of which shall
be borne by the Company. All of such fees and expenses, except for the SEC registration fee, are estimated.
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SEC registration fee
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|
$
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12,120
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|
|
|
|
|
|
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|
FINRA fees
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|
$
|
15,500
|
|
|
|
|
|
|
|
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Transfer agent’s fees and expenses
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|
$
|
*
|
|
|
|
|
|
|
|
|
Legal fees and expenses
|
|
$
|
*
|
|
|
|
|
|
|
|
|
Printing fees and expenses
|
|
$
|
*
|
|
|
|
|
|
|
|
|
Accounting fees and expenses
|
|
$
|
*
|
|
|
|
|
|
|
|
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Miscellaneous fees and expenses
|
|
$
|
*
|
|
|
|
|
|
|
|
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Total
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$
|
*
|
|
|
|
*
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To be provided by a prospectus supplement or as an exhibit
to a Report on Form 6-K that is incorporated by reference into this prospectus.
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INCORPORATION OF CERTAIN INFORMATION
BY REFERENCE
We incorporate by reference the filed documents
listed below, except as superseded, supplemented or modified by this prospectus:
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·
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our Annual Report on Form 20-F for the fiscal year ended December 31,
2018, filed with the SEC on April 5, 2019;
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|
|
·
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A description of our Class A ordinary shares can be found in our Registration
Statement on Form F-1, as amended, under the Securities Act of 1933, as amended (the “Securities Act”), as originally
filed with the SEC on August 28, 2017 (Registration No. 333-220207) under the heading “Description of Shares and Governing
Documents – Sixth Amended and Restated Memorandum and Articles of Association — Ordinary Shares”;
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|
|
·
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any Form 20-F filed with the SEC after the date of the initial filing of this registration statement and prior to
effectiveness of the registration statement that contains this
prospectus
and prior to
the
termination of
this offering
of
securities; and
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|
|
·
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any Report on Form 6-K submitted to the SEC after the date of the initial filing of this registration statement and prior to
effectiveness of the registration statement that contains this prospectus
and prior to the termination of this offering of securities, but only to the extent that the forms expressly state that we incorporate
them by reference in this prospectus.
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Potential investors, including any beneficial
owner, may obtain a copy of any of the documents summarized herein (subject to certain restrictions because of the confidential
nature of the subject matter) or any of our SEC filings incorporated by reference herein without charge by written request directed
to 12
th
Floor, Tower 1, Financial Street, Chang’an Center, Shijingshan District, Beijing, PRC.
You should rely only on the information
incorporated by reference or provided in this prospectus or any prospectus supplement. We have not authorized anyone else to provide
you with different information. We are not making an offer of these securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any prospectus supplement is accurate as of any date other than the
date on the front of those documents.
Any statement contained in a document incorporated
by reference herein shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement
contained herein, or in a subsequently filed document incorporated by reference herein, modifies or supersedes that statement.
Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute part of this prospectus.
INDEMNIFICATION
Cayman Islands law does not limit the extent
to which a company’s memorandum and articles of association may provide for indemnification of officers and directors, except
to the extent any such provision may be held by the Cayman Islands courts to be contrary to public policy, such as to provide indemnification
against fraud or willful default or the consequences of committing a crime. Our Sixth Amended and Restated memorandum and articles
of association provides for indemnification of our officers and directors to the maximum extent permitted by law, including for
any liability incurred in their capacities as such, except through their own actual fraud, or willful default.
Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions,
we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities
Act and is theretofore unenforceable.
LEGAL MATTERS
The validity of the debt securities, warrants,
subscription rights and units and legal matters as to United States and New York law has been passed upon for us by Loeb &
Loeb LLP. The validity of the ordinary shares and preferred shares and legal matters as to Cayman Islands law has been passed upon
for us by Walkers (Hong Kong).
EXPERTS
The consolidated financial statements of
Ambow Education Holding Ltd. as of December 31, 2017 and 2018, and for each of the years in the three-year period ended December
31, 2018 included in the Registration Statement have been incorporated by reference herein and in the registration statement in
reliance upon the report of Marcum Bernstein & Pinchuk LLP, an independent registered public accounting firm, and on the authority
of said firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration
statement on Form F-3 under the Securities Act with respect to the offer and sale of securities pursuant to this prospectus. This
prospectus, filed as a part of the registration statement, does not contain all of the information set forth in the registration
statement or the exhibits and schedules thereto in accordance with the rules and regulations of the SEC and no reference is hereby
made to such omitted information. Statements made in this prospectus concerning the contents of any contract, agreement or other
document filed as an exhibit to the registration statement are summaries of all of the material terms of such contract, agreement
or document, but do not repeat all of their terms. Reference is made to each such exhibit for a more complete description of the
matters involved and such statements shall be deemed qualified in their entirety by such reference. The registration statement
and the exhibits and schedules thereto filed with the SEC may be obtained from the SEC’s website that contains reports, proxy
and information statements and other information regarding registrants that file electronically through the SEC’s Electronic
Data Gathering, Analysis and Retrieval (“EDGAR”) system, including the Company, which can be accessed at http://www.sec.gov.
For further information pertaining to the securities offered by this prospectus and Ambow Education Holding Ltd., reference is
made to the registration statement.
We furnish reports and other information
to the SEC. You may read and copy any document we furnish at the SEC’s public reference facilities and the website of the
SEC referred to above. Our file number with the SEC is 001-34824.
$100,000,000
ADSs
Class A Ordinary Shares
Preferred Shares
Warrants
Subscription Rights
Debt Securities
Units
PROSPECTUS
, 2019
PART II INFORMATION NOT REQUIRED IN
PROSPECTUS
Item 8. Indemnification of Directors and Officers.
Cayman Islands law does not limit the extent
to which a company’s memorandum and articles of association may provide for indemnification of officers and directors, except
to the extent any such provision may be held by the Cayman Islands courts to be contrary to public policy, such as to provide indemnification
against fraud or willful default or the consequences of committing a crime. Our sixth amended and restated memorandum and articles
of association provides for indemnification of our officers and directors against any liability, action, proceeding, claim, demand,
costs, damages or expenses, including legal expenses, which they or any of them may incur as a result of any act or failure to
act in carrying out their functions except through their own actual fraud, or willful default which may attach to such directors
or officers as determined by a court of competent jurisdiction.
Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions,
we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities
Act and is theretofore unenforceable.
Item 9. Exhibits
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*
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To be filed as an exhibit to a post-effective amendment
to this registration statement or as an exhibit to a report filed or furnished pursuant to the Exchange Act of the Registrant
and incorporated herein by reference.
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Item 10. Undertakings.
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(a)
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The undersigned Registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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to include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information
set forth in the registration statement; Notwithstanding the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
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(iii)
|
to include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
|
provided
,
however
, that paragraphs (a)(1)(i),
(a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the SEC by the Registrant pursuant to section 13 or section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained
in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
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(2)
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That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
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(3)
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To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
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(4)
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To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A of
Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise
required by Section 10(a)(3) of the Act need not be furnished, provided that the Registrant includes in the prospectus, by means
of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information necessary
to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding
the foregoing, with respect to registration statements on Form F-3, a post-effective amendment need not be filed to include financial
statements and information required by Section 10(a)(3) of the Act or Rule 3-19 of this chapter if such financial statements and
information are contained in periodic reports filed with or furnished to the SEC by the Registrant pursuant to section 13 or section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Form F-3.
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|
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(5)
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That, for the purpose of determining liability under the Securities Act to any purchaser:
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(i)
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Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement
as of the date the filed prospectus was deemed part of and included in the registration statement; and
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(ii)
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Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of
the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with
a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date;
or
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|
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(6)
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That, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution
of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant
pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if
the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant
will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
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(i)
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Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant
to Rule 424;
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(ii)
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Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred
to by the undersigned Registrant;
|
|
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(iii)
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The portion of any other free writing prospectus relating to the offering containing material information about the undersigned
Registrant or its securities provided by or on behalf of the undersigned Registrant; and
|
|
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(iv)
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Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
|
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(b)
|
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each
filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
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(c)
|
The undersigned Registrant hereby undertakes to supplement the prospectus, after the expiration of the subscription period,
to set forth the results of the subscription offer, the transactions by the underwriters during the subscription period, the amount
of unsubscribed securities to be purchased by the underwriters, and the terms of any subsequent reoffering thereof. If any public
offering by the underwriters is to be made on terms differing from those set forth on the cover page of the prospectus, a post-effective
amendment will be filed to set forth the terms of such offering.
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|
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(d)
|
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion
of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person of the Registrant in connection with the securities being registered,
the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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(e)
|
The undersigned Registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee
to act under subsection (a) of section 310 of the Trust Indenture Act ( “Act”) in accordance with the rules and regulations
prescribed by the SEC under section 305(b)(2) of the Act.
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SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing
on Form F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Beijing, China, on May 8, 2019.
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Ambow Education Holding Ltd
|
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By:
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/s/ Dr. Jin Huang
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Name: Dr. Jin Huang
|
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Title: Chairman and Chief Executive Officer
|
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By:
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/s/ Kia Jing Tan
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Name: Kia Jing Tan
|
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Title: Chief Financial Officer
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POWER OF ATTORNEY
Each of the undersigned officers and directors
of Ambow Education Holding Ltd. hereby severally constitutes and appoints Dr. Jin Huang and Kia Jing Tan, and each of them singly,
the true and lawful attorney with full power to them, and each of them singly, to sign for the undersigned and in his or her name
in the capacities indicated below, any and all amendments, including post-effective amendments to this Registration Statement and
any related registration statements under Rule 462 under the Securities Act of 1933, as amended,, and generally to do all such
things in the undersigned’s name and behalf in such capacities to enable Ambow Education Holding Ltd. to comply with the
applicable provisions of the Securities Act of 1933, as amended, and all rules and regulation thereunder, and all requirements
of the Securities and Exchange Commission, and each of the undersigned hereby ratifies and confirms all that said attorneys or
any of them shall lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature
|
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Title
|
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Date
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/s/ Dr. Jin Huang
|
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Chairman and Chief Executive Officer and Director
|
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May 8, 2019
|
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Dr. Jin Huang
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(principal executive officer)
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/s/ Kia Jing Tan
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Chief Financial Officer
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May 8, 2019
|
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Kia Jing Tan
|
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(principal accounting and financial officer)
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/s/ Yanhui Ma
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Director
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May 8, 2019
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Yanhui Ma
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/s/ Yigong Justin Chen
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Director
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May 8, 2019
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Yigong Justin Chen
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/s/ Ping Wu
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Director
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May 8, 2019
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Ping Wu
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/s/ John Robert Porter
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Director
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May 8, 2019
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John Robert Porter
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SIGNATURE OF AUTHORIZED REPRESENTATIVE
IN THE UNITED STATES
Pursuant to the Securities Act of 1933,
as amended, the undersigned, the duly authorized representative in the United States of Ambow Education Holding Ltd., has
signed this registration statement or amendment thereto in New York, New York on May 8, 2019.
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Authorized U.S. Representative
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LOEB & LOEB LLP
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By:
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/s/
Mitchell S. Nussbaum
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Name:
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Mitchell S. Nussbaum
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Title:
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Partner
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Exhibit 4.9
AMBOW EDUCATION HOLDING LTD.
Issuer
AND
[TRUSTEE]
Trustee
INDENTURE
Dated as of [·], 20[·]
Senior Debt Securities
Table
of Contents
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Page
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ARTICLE 1 DEFINITIONS
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1
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Section 1.01
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Definitions of Terms
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1
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ARTICLE 2 ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
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5
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Section 2.01
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Designation and Terms of Securities
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5
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Section 2.02
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Form of Securities and Trustee’s Certificate
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7
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Section 2.03
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Denominations: Provisions for Payment
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7
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Section 2.04
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Execution and Authentication
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9
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Section 2.05
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Registration of Transfer and Exchange
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9
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Section 2.06
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Temporary Securities
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11
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Section 2.07
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Mutilated, Destroyed, Lost or Stolen Securities
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11
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Section 2.08
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Cancellation
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12
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Section 2.09
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Benefits of Indenture
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12
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Section 2.10
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Authenticating Agent
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12
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Section 2.11
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Global Securities
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13
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ARTICLE 3 REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
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14
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Section 3.01
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Redemption
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14
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Section 3.02
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Notice of Redemption
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14
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Section 3.03
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Payment Upon Redemption
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15
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Section 3.04
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Sinking Fund
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15
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Section 3.05
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Satisfaction of Sinking Fund Payments with Securities
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16
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Section 3.06
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Redemption of Securities for Sinking Fund
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16
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ARTICLE 4 COVENANTS
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16
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Section 4.01
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Payment of Principal, Premium and Interest
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16
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Table
of Contents
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Page
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Section 4.02
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Maintenance of Office or Agency
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16
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Section 4.03
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Paying Agents
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17
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Section 4.04
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Appointment to Fill Vacancy in Office of Trustee
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18
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Section 4.05
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Compliance with Consolidation Provisions
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18
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ARTICLE 5 SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
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18
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Section 5.01
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Company to Furnish Trustee Names and Addresses of Securityholders
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18
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Section 5.02
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Preservation Of Information; Communications With Securityholders
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19
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Section 5.03
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Reports by the Company
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19
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Section 5.04
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Reports by the Trustee
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19
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ARTICLE 6 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
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20
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Section 6.01
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Events of Default
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20
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Section 6.02
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Collection of Indebtedness and Suits for Enforcement by Trustee
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21
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Section 6.03
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Application of Moneys or Property Collected
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23
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Section 6.04
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Limitation on Suits
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23
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Section 6.05
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Rights and Remedies Cumulative; Delay or Omission Not Waiver
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24
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Section 6.06
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Control by Securityholders
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24
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Section 6.07
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Undertaking to Pay Costs
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25
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ARTICLE 7 CONCERNING THE TRUSTEE
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25
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Section 7.01
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Certain Duties and Responsibilities of Trustee
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25
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Section 7.02
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Certain Rights of Trustee
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26
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Section 7.03
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Trustee Not Responsible for Recitals or Issuance or Securities
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28
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Table
of Contents
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Page
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Section 7.04
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May Hold Securities
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28
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Section 7.05
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Moneys Held in Trust
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28
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Section 7.06
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Compensation and Reimbursement
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28
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Section 7.07
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Reliance on Officers’ Certificate
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29
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Section 7.08
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Disqualification; Conflicting Interests
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29
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Section 7.09
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Corporate Trustee Required; Eligibility
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29
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Section 7.10
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Resignation and Removal; Appointment of Successor
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30
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Section 7.11
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Acceptance of Appointment By Successor
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31
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Section 7.12
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Merger, Conversion, Consolidation or Succession to Business
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32
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Section 7.13
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Preferential Collection of Claims Against the Company
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32
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Section 7.14
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Notice of Default
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32
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ARTICLE 8 CONCERNING THE SECURITYHOLDERS
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33
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Section 8.01
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Evidence of Action by Securityholders
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33
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Section 8.02
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Proof of Execution by Securityholders
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33
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Section 8.03
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Who May be Deemed Owners
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34
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Section 8.04
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Certain Securities Owned by Company Disregarded
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34
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Section 8.05
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Actions Binding on Future Securityholders
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34
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ARTICLE 9 SUPPLEMENTAL INDENTURES
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35
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Section 9.01
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Supplemental Indentures Without the Consent of Securityholders
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35
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Section 9.02
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Supplemental Indentures With Consent of Securityholders
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36
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Section 9.03
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Effect of Supplemental Indentures
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36
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Section 9.04
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Securities Affected by Supplemental Indentures
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37
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Section 9.05
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Execution of Supplemental Indentures
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37
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Table
of Contents
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Page
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ARTICLE 10 SUCCESSOR ENTITY
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37
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Section 10.01
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Company May Consolidate, Etc.
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37
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Section 10.02
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Successor Entity Substituted
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38
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Section 10.03
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Evidence of Consolidation, Etc. to Trustee
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38
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ARTICLE 11 SATISFACTION AND DISCHARGE
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39
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Section 11.01
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Satisfaction and Discharge of Indenture
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39
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Section 11.02
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Discharge of Obligations
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39
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Section 11.03
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Deposited Moneys to be Held in Trust
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39
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Section 11.04
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Payment of Moneys Held by Paying Agents
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40
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Section 11.05
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Repayment to Company
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40
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ARTICLE 12 IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS
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40
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Section 12.01
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No Recourse
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40
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ARTICLE 13 MISCELLANEOUS PROVISIONS
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41
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Section 13.01
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Effect on Successors and Assigns
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41
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Section 13.02
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Actions by Successor
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41
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Section 13.03
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Surrender of Company Powers
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41
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Section 13.04
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Notices
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41
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Section 13.05
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Governing Law
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41
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Section 13.06
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Treatment of Securities as Debt
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41
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Section 13.07
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Certificates and Opinions as to Conditions Precedent
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42
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Section 13.08
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Payments on Business Days
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42
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Section 13.09
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Conflict with Trust Indenture Act
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42
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Section 13.10
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Indenture and Securities Solely Corporate Obligations
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42
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Section 13.11
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Counterparts
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43
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Section 13.12
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Separability
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43
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Section 13.13
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Compliance Certificates
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43
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(1)
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This Table of Contents does not constitute part of the Indenture and shall not have any bearing on the interpretation of any
of its terms or provisions.
|
INDENTURE
INDENTURE
, dated as of [·], 20[·], among
AMBOW EDUCATION HOLDING LTD., a Cayman Islands exempted company (the “Company”), and [TRUSTEE], as trustee (the “Trustee”).
WHEREAS
, for its lawful corporate purposes, the Company
has duly authorized the execution and delivery of this Indenture to provide for the issuance of debt securities (hereinafter referred
to as the “Securities”), in an unlimited aggregate principal amount to be issued from time to time in one or more series
as in this Indenture provided, as registered Securities without coupons, to be authenticated by the certificate of the Trustee;
WHEREAS
, to provide the terms and conditions upon which
the Securities are to be authenticated, issued and delivered, the Company has duly authorized the execution of this Indenture;
and
WHEREAS
, all things necessary to make this Indenture
a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE
, in consideration of the premises and
the purchase of the Securities by the holders thereof, it is mutually covenanted and agreed as follows for the equal and ratable
benefit of the holders of Securities:
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions
of Terms.
The terms defined in this Section (except as in this Indenture
or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires) for all purposes of
this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section and shall
include the plural as well as the singular. All other terms used in this Indenture that are defined in the Trust Indenture Act
of 1939, as amended, or that are by reference in such Act defined in the Securities Act of 1933, as amended (except as herein or
any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires), shall have the meanings
assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the execution of this
instrument.
“
Authenticating Agent
” means an authenticating
agent with respect to all or any of the series of Securities appointed by the Trustee pursuant to Section 2.10.
“
Bankruptcy Law
” means Title 11, U.S.
Code, or any similar federal or state law for the relief of debtors.
“
Board of Directors
” means the Board
of Directors of the Company or any duly authorized committee of such Board.
“
Board Resolution
” means a copy of
a resolution certified by any Officer to have been duly adopted by the Board of Directors and to be in full force and effect on
the date of such certification.
“
Business Day
” means, with respect
to any series of Securities, any day other than a day on which federal or state banking institutions in the Borough of Manhattan,
the City of New York, or in the city of the Corporate Trust Office of the Trustee, are authorized or obligated by law, executive
order or regulation to close.
“
Certificate
” means a certificate
signed by any Officer. The Certificate need not comply with the provisions of Section 13.07.
“
Company
” means Ambow Education Holding
Ltd., a Cayman Islands exempted company, and, subject to the provisions of Article Ten, shall also include its successors and assigns.
“
Corporate Trust Office
” means the
office of the Trustee at which, at any particular time, its corporate trust business shall be principally administered, which office
at the date hereof is located at .
“
Custodian
” means any receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Law.
“
Default
” means any event, act or
condition that with notice or lapse of time, or both, would constitute an Event of Default.
“
Depositary
” means, with respect to
Securities of any series for which the Company shall determine that such Securities will be issued as a Global Security, The Depository
Trust Company, New York, New York, another clearing agency, or any successor registered as a clearing agency under the Securities
and Exchange Act of 1934, as amended (the “Exchange Act”), or other applicable statute or regulation, which, in each
case, shall be designated by the Company pursuant to either Section 2.01 or 2.11.
“
Event of Default
” means, with respect
to Securities of a particular series, any event specified in Section 6.01, continued for the period of time, if any, therein designated.
“
Global Security
” means, with respect
to any series of Securities, a Security executed by the Company and delivered by the Trustee to the Depositary or pursuant to the
Depositary’s instruction, all in accordance with the Indenture, which shall be registered in the name of the Depositary or
its nominee.
“
Governmental Obligations
” means securities
that are (a) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or
(b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America,
the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America that,
in either case, are not callable or redeemable at the option of the issuer thereof at any time prior to the stated maturity of
the Securities, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any
such Governmental Obligation or a specific payment of principal of or interest on any such Governmental Obligation held by such
custodian for the account of the holder of such depositary receipt; provided, however, that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received
by the custodian in respect of the Governmental Obligation or the specific payment of principal of or interest on the Governmental
Obligation evidenced by such depositary receipt.
“
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.
“
Indenture
” means this instrument
as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto
entered into in accordance with the terms hereof.
“
Interest Payment Date
”, when used
with respect to any installment of interest on a Security of a particular series, means the date specified in such Security or
in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date on which an installment
of interest with respect to Securities of that series is due and payable.
“
Officer
” means, with respect to the
Company, a director, the chairman of the Board of Directors, a chief executive officer, a president, a chief financial officer,
chief operating officer, any executive vice president, any senior vice president, any vice president, the treasurer or any assistant
treasurer, the controller or any assistant controller or the secretary or any assistant secretary or any other person appointed
as an officer of the Company.
“
Officers’ Certificate
” means
a certificate signed by any two Officers. Each such certificate shall include the statements provided for in Section 13.07, if
and to the extent required by the provisions thereof.
“
Opinion of Counsel
” means an opinion
in writing subject to customary exceptions of legal counsel, who may be an employee of or counsel for the Company, that is delivered
to the Trustee in accordance with the terms hereof. Each such opinion shall include the statements provided for in Section 13.07,
if and to the extent required by the provisions thereof.
“
Outstanding
”, when used with reference
to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time, all Securities of that
series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore canceled
by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that have previously been
canceled; (b) Securities or portions thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary
amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been
set aside and segregated in trust by the Company (if the Company shall act as its own paying agent); provided, however, that if
such Securities or portions of such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall
have been given as in Article Three provided, or provision satisfactory to the Trustee shall have been made for giving such notice;
and (c) Securities in lieu of or in substitution for which other Securities shall have been authenticated and delivered pursuant
to the terms of Section 2.07.
“
Person
” means any individual, company,
corporation, partnership, joint venture, joint-stock company, limited liability company, association, trust, unincorporated organization,
any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“
Predecessor Security
” of any particular
Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security;
and, for the purposes of this definition, any Security authenticated and delivered under Section 2.07 in lieu of a lost, destroyed
or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“
Responsible Officer
” when used with
respect to the Trustee means the chairman of its board of directors, the chief executive officer, the president, any vice president,
the secretary, the treasurer, any trust officer, any corporate trust officer or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with the particular subject.
“
Securities
” means the debt Securities
authenticated and delivered under this Indenture.
“
Securityholder
”, “holder of
Securities”, “registered holder”, or other similar term, means the Person or Persons in whose name or names a
particular Security shall be registered on the books of the Company kept for that purpose in accordance with the terms of this
Indenture.
“
Security Register
” and “
Security
Registrar
” shall have the meanings as set forth in Section 2.05.
“
Subsidiary
” means, with respect to
any Person, (i) any corporation at least a majority of whose outstanding Voting Stock shall at the time be owned, directly or indirectly,
by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, (ii) any general partnership,
joint venture or similar entity, at least a majority of whose outstanding partnership or similar interests shall at the time be
owned by such Person, or by one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries and (iii) any
limited partnership of which such Person or any of its Subsidiaries is a general partner.
“
Trustee
” means , and, subject to
the provisions of Article Seven, shall also include its successors and assigns, and, if at any time there is more than one Person
acting in such capacity hereunder, “Trustee” shall mean each such Person. The term “Trustee” as used with
respect to a particular series of the Securities shall mean the trustee with respect to that series.
“
Trust Indenture Act
” means the Trust
Indenture Act of 1939, as amended.
“
Voting Stock
”, as applied to shares
or stock of any Person, means shares, interests, participations or other equivalents in the equity interest (however designated)
in such Person having ordinary voting power for the election of a majority of the directors (or the equivalent) of such Person,
other than shares, interests, participations or other equivalents having such power only by reason of the occurrence of a contingency.
ARTICLE 2
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
Section 2.01 Designation
and Terms of Securities.
(a)
The
aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more series up to the aggregate principal amount of Securities of that series from time to time authorized
by or pursuant to a Board Resolution or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of
Securities of any 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:
(1)
the
title of the Securities of the series (which shall distinguish the Securities of that series from all other Securities);
(2)
any
limit upon the aggregate principal amount of the Securities of that series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of that series);
(3)
the
date or dates on which the principal of the Securities of the series is payable, any original issue discount that may apply to
the Securities of that series upon their issuance, the principal amount due at maturity, and the place(s) of payment;
(4)
the
rate or rates at which the Securities of the series shall bear interest or the manner of calculation of such rate or rates, if
any;
(5)
the
date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest will be payable or the manner
of determination of such Interest Payment Dates, the place(s) of payment, and the record date for the determination of holders
to whom interest is payable on any such Interest Payment Dates or the manner of determination of such record dates;
(6)
the
right, if any, to extend the interest payment periods and the duration of such extension;
(7)
the
period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series may
be redeemed, in whole or in part, at the option of the Company;
(8)
the
obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund, mandatory redemption,
or analogous provisions (including payments made in cash in satisfaction of future sinking fund obligations) 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,
Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(9)
the
form of the Securities of the series including the form of the Certificate of Authentication for such series;
(10)
if
other than denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, the denominations in which the
Securities of the series shall be issuable;
(11)
any
and all other terms (including terms, to the extent applicable, relating to any auction or remarketing of the Securities of that
series and any security for the obligations of the Company with respect to such Securities) with respect to such series (which
terms shall not be inconsistent with the terms of this Indenture, as amended by any supplemental indenture) including any terms
which may be required by or advisable under United States laws or regulations or advisable in connection with the marketing of
Securities of that series;
(12)
whether
the Securities are issuable as a Global Security and, in such case, the terms and the identity of the Depositary for such series;
(13)
whether
the Securities will be convertible into or exchangeable for shares or other securities of the Company or any other Person and,
if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, including the conversion or
exchange price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional (at the Company’s
option or the holders’ option) conversion or exchange features, and the applicable conversion or exchange period;
(14)
if
other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to Section 6.01;
(15)
any
additional or different Events of Default or restrictive covenants (which may include, among other restrictions, restrictions on
the Company’s ability or the ability of the Company’s Subsidiaries to: incur additional indebtedness; issue additional
securities; create liens; pay dividends or make distributions in respect of their shares or capital stock; redeem shares or capital
stock; place restrictions on such Subsidiaries placing restrictions on their ability to pay dividends, make distributions or transfer
assets; make investments or other restricted payments; sell or otherwise dispose of assets; enter into sale-leaseback transactions;
engage in transactions with shareholders and affiliates; issue or sell shares or stock of their Subsidiaries; or effect a consolidation
or merger) or financial covenants (which may include, among other financial covenants, financial covenants that require the Company
and its Subsidiaries to maintain specified interest coverage, fixed charge, cash flow-based or asset-based ratios) provided for
with respect to the Securities of the series;
(16)
if
other than dollars, the coin or currency in which the Securities of the series are denominated (including, but not limited to,
foreign currency);
(17)
the
terms and conditions, if any, upon which the Company shall pay amounts in addition to the stated interest, premium, if any and
principal amounts of the Securities of the series to any Securityholder that is not a “United States person” for federal
tax purposes; and
(18)
any
restrictions on transfer, sale or assignment of the Securities of the series.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant to any such Board Resolution or in any indentures
supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution of the Company, 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
of the Company setting forth the terms of the series.
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 dates.
Section 2.02 Form
of Securities and Trustee’s Certificate.
The Securities of any series and the Trustee’s certificate
of authentication to be borne by such Securities shall be substantially of the tenor and purport as set forth in one or more indentures
supplemental hereto or as provided in a Board Resolution, and set forth in an Officers’ Certificate, and they may have such
letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved
thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required
to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange
on which Securities of that series may be listed, or to conform to usage.
Section 2.03 Denominations:
Provisions for Payment.
The Securities shall be issuable as registered Securities and
in the denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, subject to Section 2.01(a)(10). The
Securities of a particular series shall bear interest payable on the dates and at the rate specified with respect to that series.
Subject to Section 2.01(a)(16), the principal of and the interest on the Securities of any series, as well as any premium thereon
in case of redemption thereof prior to maturity, shall be payable in the coin or currency of the United States of America that
at the time is legal tender for public and private debt, at the office or agency of the Company maintained for that purpose in
the Borough of Manhattan, the City and State of New York. Each Security shall be dated the date of its authentication. Interest
on the Securities shall be computed on the basis of a 360-day year composed of twelve 30-day months.
The interest installment on any Security that is payable, and
is punctually paid or duly provided for, on any Interest Payment Date for Securities of that series shall be paid to the Person
in whose name said Security (or one or more Predecessor Securities) is registered at the close of business on the regular record
date for such interest installment. In the event that any Security of a particular series or portion thereof is called for redemption
and the redemption date is subsequent to a regular record date with respect to any Interest Payment Date and prior to such Interest
Payment Date, interest on such Security will be paid upon presentation and surrender of such Security as provided in Section 3.03.
Any interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for Securities of the same series (herein called “Defaulted Interest”)
shall forthwith cease to be payable to the registered holder on the relevant regular record date by virtue of having been such
holder; and such Defaulted Interest shall be paid by the Company, at its election, as provided in clause (1) or clause (2) below:
(1)
The
Company may make payment of any Defaulted Interest on Securities to the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered at the close of business on a special record date for the payment of such Defaulted Interest,
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 such Security and the date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon
the Trustee shall fix a special record date for the payment of such Defaulted Interest which shall not be more than 15 nor 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 notice
of the proposed payment. The Trustee shall promptly notify the Company of such special record date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the special record date therefor
to be mailed, first class postage prepaid, to each Securityholder at his or her address as it appears in the Security Register
(as hereinafter defined), 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 such Securities (or their respective Predecessor Securities) are registered on such special record date.
(2)
The
Company may make payment of any Defaulted Interest on any Securities in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such 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.
Unless otherwise set forth in a Board Resolution or one or more
indentures supplemental hereto establishing the terms of any series of Securities pursuant to Section 2.01 hereof, the term “regular
record date” as used in this Section with respect to a series of Securities and any Interest Payment Date for such series
shall mean either the fifteenth day of the month immediately preceding the month in which an Interest Payment Date established
for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the first day of a month, or the
first day of the month in which an Interest Payment Date established for such series pursuant to Section 2.01 hereof shall occur,
if such Interest Payment Date is the fifteenth day of a month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section, each Security
of a series delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Security of such series
shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security.
Section 2.04 Execution
and Authentication.
The Securities shall be signed on behalf of the Company by one
of its Officers. Signatures may be in the form of a manual or facsimile signature.
The Company may use the facsimile signature of any Person who
shall have been an Officer, notwithstanding the fact that at the time the Securities shall be authenticated and delivered or disposed
of such Person shall have ceased to be such an officer of the Company. The Securities may contain such notations, legends or endorsements
required by law, stock exchange rule or usage. Each Security shall be dated the date of its authentication by the Trustee.
A Security shall not be valid until authenticated manually by
an authorized signatory of the Trustee, or by an Authenticating Agent. Such signature shall be conclusive evidence that the Security
so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits of this Indenture.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any
series executed by the Company to the Trustee for authentication, together with a written order of the Company for the authentication
and delivery of such Securities, signed by an Officer, and the Trustee in accordance with such written order shall authenticate
and deliver such Securities.
In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to
Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel stating that the form and terms thereof have been
established in conformity with the provisions of this Indenture.
The Trustee shall not be required to authenticate such Securities
if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under
the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee.
Section 2.05 Registration
of Transfer and Exchange.
(a)
Securities
of any series may be exchanged upon presentation thereof at the office or agency of the Company designated for such purpose in
the Borough of Manhattan, the City and State of New York, for other Securities of such series of authorized denominations, and
for a like aggregate principal amount, upon payment of a sum sufficient to cover any tax or other governmental charge in relation
thereto, all as provided in this Section. In respect of any Securities so surrendered for exchange, the Company shall execute,
the Trustee shall authenticate and such office or agency shall deliver in exchange therefor the Security or Securities of the same
series that the Securityholder making the exchange shall be entitled to receive, bearing numbers not contemporaneously outstanding.
(b)
The
Company shall keep, or cause to be kept, at its office or agency designated for such purpose in the Borough of Manhattan, the City
and State of New York, or such other location designated by the Company, a register or registers (herein referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall register the Securities
and the transfers of Securities as in this Article provided and which at all reasonable times shall be open for inspection by the
Trustee. The registrar for the purpose of registering Securities and transfer of Securities as herein provided shall be appointed
as authorized by Board Resolution (the “Security Registrar”).
Upon surrender for transfer of any Security at the office or
agency of the Company designated for such purpose, the Company shall execute, the Trustee shall authenticate and such office or
agency shall deliver in the name of the transferee or transferees a new Security or Securities of the same series as the Security
presented for a like aggregate principal amount.
All Securities presented or surrendered for exchange or registration
of transfer, as provided in this Section, shall be accompanied (if so required by the Company or the Security Registrar) by a written
instrument or instruments of transfer, in form satisfactory to the Company or the Security Registrar, duly executed by the registered
holder or by such holder’s duly authorized attorney in writing.
(c)
Except
as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established
in one or more indentures supplemental to this Indenture, no service charge shall be made for any exchange or registration of transfer
of Securities, or issue of new Securities in case of partial redemption of any series, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge in relation thereto, other than exchanges pursuant to Section 2.06,
Section 3.03(b) and Section 9.04 not involving any transfer.
(d)
The
Company shall not be required (i) to issue, exchange or register the transfer of any Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of redemption of less than all the Outstanding Securities
of the same series and ending at the close of business on the day of such mailing, nor (ii) to register the transfer of or exchange
any Securities of any series or portions thereof called for redemption, other than the unredeemed portion of any such Securities
being redeemed in part. The provisions of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
Section 2.06 Temporary
Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and the Trustee shall authenticate and deliver, temporary Securities (printed, lithographed or typewritten)
of any authorized denomination. Such temporary Securities shall be substantially in the form of the definitive Securities in lieu
of which they are issued, but with such omissions, insertions and variations as may be appropriate for temporary Securities, all
as may be determined by the Company. Every temporary Security of any series shall be executed by the Company and be authenticated
by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities
of such series. Without unnecessary delay the Company will execute and will furnish definitive Securities of such series and thereupon
any or all temporary Securities of such series may be surrendered in exchange therefor (without charge to the holders), at the
office or agency of the Company designated for the purpose in the Borough of Manhattan, the City and State of New York, and the
Trustee shall authenticate and such office or agency shall deliver in exchange for such temporary Securities an equal aggregate
principal amount of definitive Securities of such series, unless the Company advises the Trustee to the effect that definitive
Securities need not be executed and furnished until further notice from the Company. Until so exchanged, the temporary Securities
of such series shall be entitled to the same benefits under this Indenture as definitive Securities of such series authenticated
and delivered hereunder.
Section 2.07 Mutilated,
Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall become mutilated
or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence) shall execute, and upon the Company’s
request the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the same series, bearing a number
not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution for
the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security shall furnish to the Company
and the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every case of destruction,
loss or theft, the applicant shall also furnish to the Company and the Trustee evidence to their satisfaction of the destruction,
loss or theft of the applicant’s Security and of the ownership thereof. The Trustee may authenticate any such substituted
Security and deliver the same upon the written request or authorization of any officer of the Company. Upon the issuance of any
substituted Security, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
In case any Security that has matured or is about to mature
shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security, pay or authorize
the payment of the same (without surrender thereof except in the case of a mutilated Security) if the applicant for such payment
shall furnish to the Company and the Trustee such security or indemnity as they may require to save them harmless, and, in case
of destruction, loss or theft, evidence to the satisfaction of the Company and the Trustee of the destruction, loss or theft of
such Security and of the ownership thereof.
Every replacement Security issued pursuant to the provisions
of this Section shall constitute an additional contractual obligation of the Company whether or not the mutilated, destroyed, lost
or stolen Security shall be found at any time, or be enforceable by anyone, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities of the same series duly issued hereunder. All Securities shall be
held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
Section 2.08 Cancellation.
All Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer shall, if surrendered to the Company or any paying agent, be delivered to the Trustee for
cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no Securities shall be issued in lieu thereof except
as expressly required or permitted by any of the provisions of this Indenture. In the absence of such request the Trustee may dispose
of canceled Securities in accordance with its standard procedures and deliver a certificate of disposition to the Company. If the
Company shall otherwise acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee for cancellation.
Section 2.09 Benefits
of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give or be construed to give to any Person, other than the parties hereto and the holders of the Securities any legal or
equitable right, remedy or claim under or in respect of this Indenture, or under any covenant, condition or provision herein contained;
all such covenants, conditions and provisions being for the sole benefit of the parties hereto and of the holders of the Securities.
Section 2.10 Authenticating
Agent.
So long as any of the Securities of any series remain Outstanding
there may be an Authenticating Agent for any or all such series of Securities which the Trustee shall have the right to appoint.
Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued
upon exchange, transfer or partial redemption thereof, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. All references in this
Indenture to the authentication of Securities by the Trustee shall be deemed to include authentication by an Authenticating Agent
for such series. Each Authenticating Agent shall be acceptable to the Company and shall be a corporation that has a combined capital
and surplus, as most recently reported or determined by it, sufficient under the laws of any jurisdiction under which it is organized
or in which it is doing business to conduct a trust business, and that is otherwise authorized under such laws to conduct such
business and is subject to supervision or examination by federal or state authorities. If at any time any Authenticating Agent
shall cease to be eligible in accordance with these provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any time (and upon request by the Company shall) terminate
the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company.
Upon resignation, termination or cessation of eligibility of any Authenticating Agent, the Trustee may appoint an eligible successor
Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor hereunder as if originally named as an Authenticating
Agent pursuant hereto.
Section 2.11 Global
Securities.
(a)
If
the Company shall establish pursuant to Section 2.01 that the Securities of a particular series are to be issued as a Global Security,
then the Company shall execute and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security
that (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding
Securities of such series, (ii) shall be registered in the name of the Depositary or its nominee, (iii) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary’s instruction and (iv) shall bear a legend substantially to the following
effect: “Except as otherwise provided in Section 2.11 of the Indenture, this Security may be transferred, in whole but not
in part, only to another nominee of the Depositary or to a successor Depositary or to a nominee of such successor Depositary.”
(b)
Notwithstanding
the provisions of Section 2.05, the Global Security of a series may be transferred, in whole but not in part and in the manner
provided in Section 2.05, only to another nominee of the Depositary for such series, or to a successor Depositary for such series
selected or approved by the Company or to a nominee of such successor Depositary.
(c)
If
at any time the Depositary for a series of the Securities notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no longer be registered or in good standing under the Exchange
Act, or other applicable statute or regulation, and a successor Depositary for such series is not appointed by the Company within
90 days after the Company receives such notice or becomes aware of such condition, as the case may be, or if an Event of Default
has occurred and is continuing and the Company has received a request from the Depositary, this Section 2.11 shall no longer be
applicable to the Securities of such series and the Company will execute, and subject to Section 2.04, the Trustee will authenticate
and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security.
In addition, the Company may at any time determine that the Securities of any series shall no longer be represented by a Global
Security and that the provisions of this Section 2.11 shall no longer apply to the Securities of such series. In such event the
Company will execute and, subject to Section 2.04, the Trustee, upon receipt of an Officers’ Certificate evidencing such
determination by the Company, will authenticate and deliver the Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security
of such series in exchange for such Global Security. Upon the exchange of the Global Security for such Securities in definitive
registered form without coupons, in authorized denominations, the Global Security shall be canceled by the Trustee. Such Securities
in definitive registered form issued in exchange for the Global Security pursuant to this Section 2.11(c) shall be registered in
such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Depositary for delivery to the Persons
in whose names such Securities are so registered.
ARTICLE 3
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
Section 3.01 Redemption.
The Company may redeem the Securities of any series issued hereunder
on and after the dates and in accordance with the terms established for such series pursuant to Section 2.01 hereof.
Section 3.02 Notice
of Redemption.
(a)
In
case the Company shall desire to exercise such right to redeem all or, as the case may be, a portion of the Securities of any series
in accordance with any right the Company reserved for itself to do so pursuant to Section 2.01 hereof, the Company shall, or shall
cause the Trustee to, give notice of such redemption to holders of the Securities of such series to be redeemed by mailing, first
class postage prepaid, a notice of such redemption not less than 30 days and not more than 90 days before the date fixed for redemption
of that series to such holders at their last addresses as they shall appear upon the Security Register, unless a shorter period
is specified in the Securities to be redeemed. Any notice that is mailed in the manner herein provided shall be conclusively presumed
to have been duly given, whether or not the registered holder receives the notice. In any case, failure duly to give such notice
to the holder of any Security of any series designated for redemption in whole or in part, or any defect in the notice, shall not
affect the validity of the proceedings for the redemption of any other Securities of such series or any other series. In the case
of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance
with any such restriction.
Each such notice of redemption shall specify the date fixed
for redemption and the redemption price at which Securities of that series are to be redeemed, and shall state that payment of
the redemption price of such Securities to be redeemed will be made at the office or agency of the Company in the Borough of Manhattan,
the City and State of New York, upon presentation and surrender of such Securities, that interest accrued to the date fixed for
redemption will be paid as specified in said notice, that from and after said date interest will cease to accrue and that the redemption
is for a sinking fund, if such is the case. If less than all the Securities of a series are to be redeemed, the notice to the holders
of Securities of that series to be redeemed in part shall specify the particular Securities to be so redeemed.
In case any Security is to be redeemed in part only, the notice
that relates to such Security shall state the portion of the principal amount thereof to be redeemed, and shall state that on and
after the redemption date, upon surrender of such Security, a new Security or Securities of such series in principal amount equal
to the unredeemed portion thereof will be issued.
(b)
If
less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 45 days’ notice
(unless a shorter notice shall be satisfactory to the Trustee) in advance of the date fixed for redemption as to the aggregate
principal amount of Securities of the series to be redeemed, and thereupon the Trustee shall select, by lot or in such other manner
as it shall deem appropriate and fair in its discretion and that may provide for the selection of a portion or portions (equal
to one thousand U.S. dollars ($1,000) or any integral multiple thereof) of the principal amount of such Securities of a denomination
larger than $1,000, the Securities to be redeemed and shall thereafter promptly notify the Company in writing of the numbers of
the Securities to be redeemed, in whole or in part. The Company may, if and whenever it shall so elect, by delivery of instructions
signed on its behalf by an Officer, instruct the Trustee or any paying agent to call all or any part of the Securities of a particular
series for redemption and to give notice of redemption in the manner set forth in this Section, such notice to be in the name of
the Company or its own name as the Trustee or such paying agent may deem advisable. In any case in which notice of redemption is
to be given by the Trustee or any such paying agent, the Company shall deliver or cause to be delivered to, or permit to remain
with, the Trustee or such paying agent, as the case may be, such Security Register, transfer books or other records, or suitable
copies or extracts therefrom, sufficient to enable the Trustee or such paying agent to give any notice by mail that may be required
under the provisions of this Section.
Section 3.03 Payment
Upon Redemption.
(a)
If
the giving of notice of redemption shall have been completed as above provided, the Securities or portions of Securities of the
series to be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice
at the applicable redemption price, together with interest accrued to the date fixed for redemption and interest on such Securities
or portions of Securities shall cease to accrue on and after the date fixed for redemption, unless the Company shall default in
the payment of such redemption price and accrued interest with respect to any such Security or portion thereof. On presentation
and surrender of such Securities on or after the date fixed for redemption at the place of payment specified in the notice, said
Securities shall be paid and redeemed at the applicable redemption price for such series, together with interest accrued thereon
to the date fixed for redemption (but if the date fixed for redemption is an interest payment date, the interest installment payable
on such date shall be payable to the registered holder at the close of business on the applicable record date pursuant to Section
2.03).
(b)
Upon
presentation of any Security of such series that is to be redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Security is presented shall deliver to the holder thereof, at the expense of the
Company, a new Security of the same series of authorized denominations in principal amount equal to the unredeemed portion of the
Security so presented.
Section 3.04 Sinking
Fund.
The provisions of Sections 3.04, 3.05 and 3.06 shall be applicable
to any sinking fund for the retirement of Securities of a series, except as otherwise specified as contemplated by Section 2.01
for Securities of such series.
The minimum amount of any sinking fund payment provided for
by the terms of 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 terms of Securities of any series is herein referred to as an “optional
sinking fund payment”. If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment
may be subject to reduction as provided in Section 3.05. Each sinking fund payment shall be applied to the redemption of Securities
of any series as provided for by the terms of Securities of such series.
Section 3.05 Satisfaction
of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series
and (ii) may apply as a credit Securities of a series that have been redeemed either at the election of the Company pursuant to
the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such
series required to be made pursuant to the terms of such Securities as provided for by the terms of such series, provided that
such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee
at the redemption price specified in such Securities for redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
Section 3.06 Redemption
of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date
for any series of 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 the series, the portion thereof, if any, that is to be satisfied by delivering and crediting Securities of that series pursuant
to Section 3.05 and the basis for such credit and will, together with such Officers’ Certificate, deliver to the Trustee
any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.02 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 3.02. Such notice having
been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 3.03.
ARTICLE 4
COVENANTS
Section 4.01 Payment
of Principal, Premium and Interest.
The Company will duly and punctually pay or cause to be paid
the principal of (and premium, if any) and interest on the Securities of that series at the time and place and in the manner provided
herein and established with respect to such Securities.
Section 4.02 Maintenance
of Office or Agency.
So long as any series of the Securities remain Outstanding,
the Company agrees to maintain an office or agency in the Borough of Manhattan, the City and State of New York, with respect to
each such series and at such other location or locations as may be designated as provided in this Section 4.02, where (i) Securities
of that series may be presented for payment, (ii) Securities of that series may be presented as herein above authorized for registration
of transfer and exchange, and (iii) notices and demands to or upon the Company in respect of the Securities of that series and
this Indenture may be given or served, such designation to continue with respect to such office or agency until the Company shall,
by written notice signed by any officer authorized to sign an Officers’ Certificate and delivered to the Trustee, designate
some other office or agency for such purposes or any of them. 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, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive
all such presentations, notices and demands. The Company initially appoints the Corporate Trust Office of the Trustee located in
the Borough of Manhattan, the City of New York as its paying agent with respect to the Securities.
Section 4.03 Paying
Agents.
(a)
If
the Company shall appoint one or more paying agents for all or any series of the Securities, other than the Trustee, the Company
will cause each such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section:
(1)
that
it will hold all sums held by it as such agent for the payment of the principal of (and premium, if any) or interest on the Securities
of that series (whether such sums have been paid to it by the Company or by any other obligor of such Securities) in trust for
the benefit of the Persons entitled thereto;
(2)
that
it will give the Trustee notice of any failure by the Company (or by any other obligor of such Securities) to make any payment
of the principal of (and premium, if any) or interest on the Securities of that series when the same shall be due and payable;
(3)
that
it will, at any time during the continuance of any failure referred to in the preceding paragraph (a)(2) above, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent; and
(4)
that
it will perform all other duties of paying agent as set forth in this Indenture.
(b)
If
the Company shall act as its own paying agent with respect to any series of the Securities, it will on or before each due date
of the principal of (and premium, if any) or interest on Securities of that series, set aside, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay such principal (and premium, if any) or interest so becoming
due on Securities of that series until such sums shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of such action, or any failure (by it or any other obligor on such Securities) to take such action.
Whenever the Company shall have one or more paying agents for any series of Securities, it will, prior to each due date of the
principal of (and premium, if any) or interest on any Securities of that series, deposit with the 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 this action or failure so to act.
(c)
Notwithstanding
anything in this Section to the contrary, (i) the agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 11.05, and (ii) the Company may at any time, for the purpose of obtaining the satisfaction and discharge
of this Indenture or for any other purpose, pay, or 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 terms and conditions as those upon which such sums
were held by the Company or such paying agent; and, upon such payment by the Company or any paying agent to the Trustee, the Company
or such paying agent shall be released from all further liability with respect to such money.
Section 4.04 Appointment
to Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in
the office of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall at all times be a Trustee
hereunder.
Section 4.05 Compliance
with Consolidation Provisions.
The Company will not, while any of the Securities remain Outstanding,
consolidate with or merge into any other Person, in either case where the Company is not the survivor of such transaction, or sell
or convey all or substantially all of its property to any other Person unless the provisions of Article Ten hereof are complied
with.
ARTICLE 5
SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 5.01 Company
to Furnish Trustee Names and Addresses of Securityholders.
The Company will furnish or cause to be furnished to the Trustee
(a) within 15 days after each regular record date (as defined in Section 2.03) a list, in such form as the Trustee may reasonably
require, of the names and addresses of the holders of each series of Securities as of such regular record date, provided that the
Company shall not be obligated to furnish or cause to furnish such list at any time that the list shall not differ in any respect
from the most recent list furnished to the Trustee by the Company and (b) 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, in either case, no such list need be furnished for any
series for which the Trustee shall be the Security Registrar.
Section 5.02 Preservation
Of Information; Communications With Securityholders.
(a)
The
Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the
holders of Securities contained in the most recent list furnished to it as provided in Section 5.01 and as to the names and addresses
of holders of Securities received by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b)
The
Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c)
Securityholders
may communicate as provided in Section 312(b) of the Trust Indenture Act with other Securityholders with respect to their rights
under this Indenture or under the Securities, and, in connection with any such communications, the Trustee shall satisfy its obligations
under Section 312(b) of the Trust Indenture Act in accordance with the provisions of Section 312(b) of the Trust Indenture Act.
Section 5.03 Reports
by the Company.
The Company covenants and agrees to provide a copy to the Trustee,
after the Company files the same with the Securities and Exchange Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing as the Securities and Exchange Commission may from
time to time by rules and regulations prescribe) that the Company files with the Securities and Exchange Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; provided, however, the Company shall not be required to deliver to the Trustee
any materials for which the Company has sought and received confidential treatment by the SEC. The Company shall also comply with
the requirements of Section 314 of the Trust Indenture Act, but only to the extent then applicable to the Company.
Section 5.04 Reports
by the Trustee.
(a)
On
or before July 1 in each year in which any of the Securities are Outstanding, the Trustee shall transmit by mail, first class postage
prepaid, to the Securityholders, as their names and addresses appear upon the Security Register, a brief report dated as of the
preceding May 1, if and to the extent required under Section 313(a) of the Trust Indenture Act.
(b)
The
Trustee shall comply with Section 313(b) and 313(c) of the Trust Indenture Act.
(c)
A
copy of each such report shall, at the time of such transmission to Securityholders, be filed by the Trustee with the Company,
with each securities exchange upon which any Securities are listed (if so listed) and also with the Securities and Exchange Commission.
The Company agrees to notify the Trustee when any Securities become listed on any securities exchange.
ARTICLE 6
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 6.01 Events
of Default.
(a)
Whenever
used herein with respect to Securities of a particular series, “Event of Default” means any one or more of the following
events that has occurred and is continuing:
(1)
the
Company defaults in the payment of any installment of interest upon any of the Securities of that series, as and when the same
shall become due and payable, and such default continues for a period of 90 days; provided, however, that a valid extension of
an interest payment period by the Company in accordance with the terms of any indenture supplemental hereto shall not constitute
a default in the payment of interest for this purpose;
(2)
the
Company defaults in the payment of the principal of (or premium, if any, on) any of the Securities of that series as and when the
same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required
by any sinking or analogous fund established with respect to that series; provided, however, that a valid extension of the maturity
of such Securities in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment
of principal or premium, if any;
(3)
the
Company fails to observe or perform any other of its covenants or agreements with respect to that series contained in this Indenture
or otherwise established with respect to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or agreement
that has been expressly included in this Indenture solely for the benefit of one or more series of Securities other than such series)
for a period of 90 days after the date on which written notice of such failure, requiring the same to be remedied and stating that
such notice is a “Notice of Default” hereunder, shall have been given to the Company by the Trustee, by registered
or certified mail, or to the Company and the Trustee by the holders of at least 25% in principal amount of the Securities of that
series at the time Outstanding;
(4)
the
Company pursuant to or within the meaning of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the entry of an
order for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially
all of its property or (iv) makes a general assignment for the benefit of its creditors; or
(5)
a
court of competent jurisdiction enters an order under any Bankruptcy Law that (i) is for relief against the Company in an involuntary
case, (ii) appoints a Custodian of the Company for all or substantially all of its property or (iii) orders the liquidation of
the Company, and the order or decree remains unstayed and in effect for 90 days.
(b)
In
each and every such case (other than an Event of Default specified in clause (4) or clause (5) above), unless the principal of
all the Securities of that series shall have already become due and payable, either the Trustee or the holders of not less than
25% in aggregate principal amount of the Securities of that series then Outstanding hereunder, by notice in writing to the Company
(and to the Trustee if given by such Securityholders), may declare the principal of (and premium, if any, on) and accrued and unpaid
interest on all the Securities of that series to be due and payable immediately, and upon any such declaration the same shall become
and shall be immediately due and payable. If an Event of Default specified in clause (4) or clause (5) above occurs, the principal
of and accrued and unpaid interest on all the Securities of that series shall automatically be immediately due and payable without
any declaration or other act on the part of the Trustee or the holders of the Securities.
(c)
At
any time after the principal of (and premium, if any, on) and accrued and unpaid interest on the Securities of that series shall
have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the holders of a majority in aggregate principal amount of the Securities of that series then
Outstanding hereunder, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences
if: (i) the Company has paid or deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all
the Securities of that series and the principal of (and premium, if any, on) any and all Securities of that series that shall have
become due otherwise than by acceleration (with interest upon such principal and premium, if any, and, to the extent that such
payment is enforceable under applicable law, upon overdue installments of interest, at the rate per annum expressed in the Securities
of that series to the date of such payment or deposit) and the amount payable to the Trustee under Section 7.06, and (ii) any and
all Events of Default under the Indenture with respect to such series, other than the nonpayment of principal on (and premium,
if any, on) and accrued and unpaid interest on Securities of that series that shall not have become due by their terms, shall have
been remedied or waived as provided in Section 6.06.
No such rescission and annulment shall extend to or shall affect
any subsequent default or impair any right consequent thereon.
(d)
In
case the Trustee shall have proceeded to enforce any right with respect to Securities of that series under this Indenture and such
proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall
have been determined adversely to the Trustee, then and in every such case, subject to any determination in such proceedings, the
Company and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies
and powers of the Company and the Trustee shall continue as though no such proceedings had been taken.
Section 6.02 Collection
of Indebtedness and Suits for Enforcement by Trustee.
(a)
The
Company covenants that (i) in case it shall default in the payment of any installment of interest on any of the Securities of a
series, or in any payment required by any sinking or analogous fund established with respect to that series as and when the same
shall have become due and payable, and such default shall have continued for a period of 90 Business Days, or (ii) in case it shall
default in the payment of the principal of (or premium, if any, on) any of the Securities of a series when the same shall have
become due and payable, whether upon maturity of the Securities of a series or upon redemption or upon declaration or otherwise
then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the holders of the Securities of that
series, the whole amount that then shall have been become due and payable on all such Securities for principal (and premium, if
any) or interest, or both, as the case may be, with interest upon the overdue principal (and premium, if any) and (to the extent
that payment of such interest is enforceable under applicable law) upon overdue installments of interest at the rate per annum
expressed in the Securities of that series; and, in addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, and the amount payable to the Trustee under Section 7.06.
(b)
If
the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums
so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment
or final decree against the Company or other obligor upon the Securities of that series and collect the moneys adjudged or decreed
to be payable in the manner provided by law or equity out of the property of the Company or other obligor upon the Securities of
that series, wherever situated.
(c)
In
case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial
proceedings affecting the Company, or its creditors or property, the Trustee shall have power to intervene in such proceedings
and take any action therein that may be permitted by the court and shall (except as may be otherwise provided by law) be entitled
to file such proofs of claim and other papers and documents as may be necessary or advisable in order to have the claims of the
Trustee and of the holders of Securities of such series allowed for the entire amount due and payable by the Company under the
Indenture at the date of institution of such proceedings and for any additional amount that may become due and payable by the Company
after such date, and to collect and receive any moneys or other property payable or deliverable on any such claim, and to distribute
the same after the deduction of the amount payable to the Trustee under Section 7.06; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the holders of Securities of such series to make such payments to
the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly to such Securityholders,
to pay to the Trustee any amount due it under Section 7.06.
(d)
All
rights of action and of asserting claims under this Indenture, or under any of the terms established with respect to Securities
of that series, may be enforced by the Trustee without the possession of any of such Securities, or the production thereof at any
trial or other proceeding relative thereto, and any such suit or 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 payment to the Trustee of any amounts
due under Section 7.06, be for the ratable benefit of the holders of the Securities of such series.
In case of an Event of Default hereunder, the Trustee may in
its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy
or otherwise, whether for the specific enforcement of any covenant or agreement contained in the Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture
or by law.
Nothing contained herein shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities of that series or the rights of any holder thereof or to authorize the Trustee to vote
in respect of the claim of any Securityholder in any such proceeding.
Section 6.03 Application
of Moneys or Property Collected.
Any moneys or property collected by the Trustee pursuant to
this Article with respect to a particular series of Securities shall be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such moneys or property on account of principal (or premium, if any) or interest,
upon presentation of the Securities of that series, and notation thereon of the payment, if only partially paid, and upon surrender
thereof if fully paid:
FIRST: To the payment of reasonable costs and expenses of collection
and of all amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of the amounts then due and unpaid upon
Securities of such series for principal (and premium, if any) and interest, in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such
Securities for principal (and premium, if any) and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the Company
or any other Person lawfully entitled thereto as requested by the Company.
Section 6.04 Limitation
on Suits.
No holder of any Security of any series shall have any right
by virtue or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other remedy hereunder,
unless (i) such holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance
thereof with respect to the Securities of such series specifying such Event of Default, as hereinbefore provided; (ii) the holders
of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder; (iii) such holder or holders
shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby; (iv) the Trustee for 90 days after its receipt of such notice, request and offer of indemnity, shall
have failed to institute any such action, suit or proceeding and (v) during such 90 day period, the holders of a majority in principal
amount of the Securities of that series do not give the Trustee a direction inconsistent with the request.
Notwithstanding anything contained herein to the contrary or
any other provisions of this Indenture, the right of any holder of any Security to receive payment of the principal of (and premium,
if any) and interest on such Security, as therein provided, on or after the respective due dates expressed in such Security (or
in the case of redemption, on the redemption date), or to institute suit for the enforcement of any such payment on or after such
respective dates or redemption date, shall not be impaired or affected without the consent of such holder and by accepting a Security
hereunder it is expressly understood, intended and covenanted by the taker and holder of every Security of such series with every
other such taker and holder and the Trustee, that no one or more holders of Securities of such series shall have any right in any
manner whatsoever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of the
holders of any other of such Securities, or to obtain or seek to obtain priority over or preference to any other such holder, or
to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of
all holders of Securities of such series. For the protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Section 6.05 Rights
and Remedies Cumulative; Delay or Omission Not Waiver.
(a)
Except
as otherwise provided in Section 2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders shall,
to the extent permitted by law, be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee
or the holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants
and agreements contained in this Indenture or otherwise established with respect to such Securities.
(b)
No
delay or omission of the Trustee or of any holder of any of the Securities to exercise any right or power accruing upon any Event
of Default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of
any such default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by this
Article or by law to the Trustee or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient,
by the Trustee or by the Securityholders.
Section 6.06 Control
by Securityholders.
The holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding, determined in accordance with Section 8.04, 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 such series; provided, however, that such direction shall not be in conflict with any rule of law
or with this Indenture. Subject to the provisions of Section 7.01, 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 officers of the Trustee, determine that the proceeding
so directed, subject to the Trustee’s duties under the Trust Indenture Act, would involve the Trustee in personal liability
or might be unduly prejudicial to the Securityholders not involved in the proceeding. The holders of a majority in aggregate principal
amount of the Securities of any series at the time Outstanding affected thereby, determined in accordance with Section 8.04, may
on behalf of the holders of all of the Securities of such series waive any past default in the performance of any of the covenants
contained herein or established pursuant to Section 2.01 with respect to such series and its consequences, except a default in
the payment of the principal of, or premium, if any, or interest on, any of the Securities of that series as and when the same
shall become due by the terms of such Securities otherwise than by acceleration (unless such default has been cured and a sum sufficient
to pay all matured installments of interest and principal and any premium has been deposited with the Trustee (in accordance with
Section 6.01(c)). Upon any such waiver, the default covered thereby shall be deemed to be cured for all purposes of this Indenture
and the Company, the Trustee and the holders of the Securities of such series shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 6.07 Undertaking
to Pay Costs.
All parties to this Indenture agree, and each holder of any
Securities 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 this Indenture, or in any suit against the Trustee for any action
taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, 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 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder,
or group of Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities of any series, or
to any suit instituted by any Securityholder for the enforcement of the payment of the principal of (or premium, if any) or interest
on any Security of such series, on or after the respective due dates expressed in such Security or established pursuant to this
Indenture.
ARTICLE 7
CONCERNING THE TRUSTEE
Section 7.01 Certain
Duties and Responsibilities of Trustee.
(a)
The
Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing of all
Events of Default with respect to the Securities of that series that may have occurred, shall undertake to perform with respect
to the Securities of such series such duties and only such duties as are specifically set forth in this Indenture, and no implied
covenants shall be read into this Indenture against the Trustee. In case an Event of Default with respect to the Securities of
a series has occurred (that has not been cured or waived), the Trustee shall exercise with respect to Securities of that series
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 man would exercise or use under the circumstances in the conduct of his own affairs.
(b)
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)
prior
to the occurrence of an Event of Default with respect to the Securities of a series and after the curing or waiving of all such
Events of Default with respect to that series that may have occurred:
(A)
the
duties and obligations of the Trustee shall with respect to the Securities of such series be determined solely by the express provisions
of this Indenture, and the Trustee shall not be liable with respect to the Securities of such series except for the performance
of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(B)
in
the absence of bad faith on the part of the Trustee, the Trustee may with respect to the Securities of such series conclusively
rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any 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
that by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirement of this Indenture;
(ii)
the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, 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 not less than a majority in principal amount of the Securities of any series at the time Outstanding
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 Securities of that series; and
(iv)
None
of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise of any of its rights or powers if there is reasonable
ground for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Indenture
or adequate indemnity against such risk is not reasonably assured to it.
Section 7.02 Certain
Rights of Trustee.
Except as otherwise provided in Section 7.01:
(a)
The
Trustee may rely conclusively and shall be protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, security or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or parties;
(b)
Any
request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or an
instrument signed in the name of the Company by any authorized officer of the Company (unless other evidence in respect thereof
is specifically prescribed herein);
(c)
The
Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted hereunder in good faith and in reliance thereon;
(d)
The
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that may be incurred therein
or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of
Default with respect to a series of the Securities (that has not been cured or waived), to exercise with respect to Securities
of that series such of the rights and powers vested in it by this Indenture, and to use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;
(e)
The
Trustee shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this Indenture;
(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, consent, order, approval, bond, security, or other papers or documents, unless requested
in writing so to do by the holders of not less than a majority in principal amount of the Outstanding Securities of the particular
series affected thereby (determined as provided in Section 8.04); provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such costs, expenses or liabilities as a condition to so proceeding. The reasonable
expense of every such examination shall be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon
demand; and
(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.
In addition, the Trustee shall not be deemed to have knowledge
of any Default or Event of Default except (1) any Event of Default occurring pursuant to Sections 6.01(a)(1), 6.01(a)(2) and 4.01
hereof or (2) any Default or Event of Default of which the Trustee shall have received written notification in the manner set forth
in this Indenture or a Responsible Officer of the Trustee shall have obtained actual knowledge. Delivery of reports, information
and documents to the Trustee under Section 5.03 is for informational purposes only and the information and the Trustee’s
receipt of the foregoing shall not constitute constructive notice of any information contained therein, or determinable from information
contained therein including the Company’s compliance with any of their covenants thereunder (as to which the Trustee is entitled
to rely conclusively on an Officers’ Certificate).
Section 7.03 Trustee
Not Responsible for Recitals or Issuance or Securities.
(a)
The
recitals contained herein and in the Securities shall be taken as the statements of the Company, and the Trustee assumes no responsibility
for the correctness of the same.
(b)
The
Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities.
(c)
The
Trustee shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds of such
Securities, or for the use or application of any moneys paid over by the Trustee in accordance with any provision of this Indenture
or established pursuant to Section 2.01, or for the use or application of any moneys received by any paying agent other than the
Trustee.
Section 7.04 May
Hold Securities.
The Trustee or any paying agent or Security Registrar, in its
individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not
Trustee, paying agent or Security Registrar.
Section 7.05 Moneys
Held in Trust.
Subject to the provisions of Section 11.05, all moneys received
by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest
on any moneys received by it hereunder except such as it may agree with the Company to pay thereon.
Section 7.06 Compensation
and Reimbursement.
(a)
The
Company covenants and agrees to pay to the Trustee, and the Trustee shall be entitled to, such reasonable compensation (which shall
not be limited by any provision of law in regard to the compensation of a trustee of an express trust) as the Company and the Trustee
may from time to time agree in writing, for all services rendered by it in the execution of the trusts hereby created and in the
exercise and performance of any of the powers and duties hereunder of the Trustee, and, except as otherwise expressly provided
herein, the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all Persons not regularly in its employ), except any such expense, disbursement
or advance as may arise from its negligence or bad faith and except as the Company and Trustee may from time to time agree in writing.
The Company also covenants to indemnify the Trustee (and its officers, agents, directors and employees) for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad faith on the part of the Trustee and arising out of
or in connection with the acceptance or administration of this trust, including the reasonable costs and expenses of defending
itself against any claim of liability in the premises.
(b)
The
obligations of the Company under this Section to compensate and indemnify the Trustee and to pay or reimburse the Trustee for reasonable
expenses, disbursements and advances shall constitute additional indebtedness hereunder. Such additional indebtedness shall be
secured by a lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the benefit of the holders of particular Securities.
Section 7.07 Reliance
on Officers’ Certificate.
Except as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it reasonably necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting to take any action hereunder, such matter (unless other evidence
in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee,
be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee and such certificate,
in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted to be taken by it under the provisions of this Indenture upon the faith thereof.
Section 7.08 Disqualification;
Conflicting Interests.
If the Trustee has or shall acquire any “conflicting interest”
within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the Company shall in all respects comply with
the provisions of Section 310(b) of the Trust Indenture Act.
Section 7.09 Corporate
Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to the Securities
issued hereunder which shall at all times be a corporation organized and doing business under the laws of the United States of
America or any state or territory thereof or of the District of Columbia, or a corporation or other Person permitted to act as
trustee by the Securities and Exchange Commission, authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination by federal,
state, territorial, or District of Columbia authority.
If such corporation or other Person 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 or other Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. The Company may not, nor may any Person directly
or indirectly controlling, controlled by, or under common control with the Company, serve as Trustee. In case at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 7.10.
Section 7.10 Resignation
and Removal; Appointment of Successor.
(a)
The
Trustee or any successor hereafter appointed may at any time resign with respect to the Securities of one or more series by giving
written notice thereof to the Company and by transmitting notice of resignation by mail, first class postage prepaid, to the Securityholders
of such series, as their names and addresses appear upon the Security Register.
Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee with respect to Securities of such series by written instrument, in duplicate, executed by
order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor
trustee. If no successor trustee shall have been so appointed and have accepted appointment within 30 days after the mailing of
such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor
trustee with respect to Securities of such series, or any Securityholder of that series who has been a bona fide holder of a Security
or Securities for at least six months may on behalf of himself and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint
a successor trustee.
(b)
In
case at any time any one of the following shall occur:
(i)
the
Trustee shall fail to comply with the provisions of Section 7.08 after written request therefor by the Company or by any Securityholder
who has been a bona fide holder of a Security or Securities for at least six months; or
(ii)
the
Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 and shall fail to resign after written request
therefor by the Company or by any such Securityholder; or
(iii)
the
Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding,
or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation; then, in any
such case, the Company may remove the Trustee with respect to all Securities and appoint a successor trustee by written instrument,
in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed
and one copy to the successor trustee, or any Securityholder who has been a bona fide holder of a Security or Securities for at
least six months may, on behalf of that holder and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor trustee. Such court may thereupon after such notice, if any,
as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c)
The
holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any time remove
the Trustee with respect to such series by so notifying the Trustee and the Company and may appoint a successor Trustee for such
series with the consent of the Company.
(d)
Any
resignation or removal of the Trustee and appointment of a successor trustee with respect to the Securities of a series pursuant
to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided
in Section 7.11.
(e)
Any
successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more series or all
of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.
Section 7.11 Acceptance
of Appointment By Successor.
(a)
In
case of the appointment hereunder of a successor trustee with respect to all 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 the
request of the Company or the successor trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver
an instrument transferring to such successor trustee all the rights, powers, and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor trustee all property and money held by such retiring Trustee hereunder.
(b)
In
case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor trustee with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor trustee shall accept such appointment and which (i) 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 Securities of that or those series to which the appointment
of such successor trustee relates, (ii) 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 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 (iii) 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, 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 that no Trustee shall be responsible for any act or failure
to act on the part of any other Trustee hereunder; 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, such retiring Trustee shall with respect
to the Securities of that or those series to which the appointment of such successor trustee relates have no further responsibility
for the exercise of rights and powers or for the performance of the duties and obligations vested in the Trustee under this Indenture,
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 Securities of that or those series to which the appointment of such
successor trustee relates; but, on request of the Company or any successor trustee, such retiring Trustee shall duly assign, transfer
and deliver to such successor trustee, to the extent contemplated by such supplemental indenture, the property and money held by
such retiring Trustee hereunder with respect to the 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.
(e)
Upon
acceptance of appointment by a successor trustee as provided in this Section, the Company shall transmit notice of the succession
of such trustee hereunder by mail, first class postage prepaid, to the Securityholders, as their names and addresses appear upon
the Security Register. If the Company fails to transmit such notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be transmitted at the expense of the Company.
Section 7.12 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 the corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation shall be qualified under the provisions of Section 7.08 and eligible under the provisions
of Section 7.09, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 7.13 Preferential
Collection of Claims Against the Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or
been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
Section 7.14 Notice
of Default
If any Default or any Event of Default occurs and is continuing
and if such Default or Event of Default is known to a Responsible Officer of the Trustee, the Trustee shall mail to each Securityholder
in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act notice of the Default or Event of Default
within 45 days after it occurs and becomes known to the Trustee, unless such Default or Event of Default has been cured;
provided,
however
, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest on any Security,
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 Responsible
Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Securityholders.
ARTICLE 8
CONCERNING THE SECURITYHOLDERS
Section 8.01 Evidence
of Action by Securityholders.
Whenever in this Indenture it is provided that the holders of
a majority or specified percentage in aggregate principal amount of the Securities of a particular series may take any action (including
the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that
at the time of taking any such action the holders of such majority or specified percentage of that series have joined therein may
be evidenced by any instrument or any number of instruments of similar tenor executed by such holders of Securities of that series
in person or by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders of any
series any request, demand, authorization, direction, notice, consent, waiver or other action, the Company may, at its option,
as evidenced by an Officers’ Certificate, fix in advance a record date for such series for the determination of Securityholders
entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company shall
have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver
or other action may be given before or after the record date, but only the Securityholders of record at the close of business on
the record date shall be deemed to be Securityholders for the purposes of determining whether Securityholders of the requisite
proportion of Outstanding Securities of that series have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other action, and for that purpose the Outstanding Securities of that series shall be computed
as of the record date; provided, however, that no such authorization, agreement or consent by such Securityholders on the record
date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six
months after the record date.
Section 8.02 Proof
of Execution by Securityholders.
Subject to the provisions of Section 7.01, proof of the execution
of any instrument by a Securityholder (such proof will not require notarization) or his agent or proxy and proof of the holding
by any Person of any of the Securities shall be sufficient if made in the following manner:
(a)
The
fact and date of the execution by any such Person of any instrument may be proved in any reasonable manner acceptable to the Trustee.
(b)
The
ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security Registrar
thereof.
The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
Section 8.03 Who
May be Deemed Owners.
Prior to the due presentment for registration of transfer of
any Security, the Company, the Trustee, any paying agent and any Security Registrar may deem and treat the Person in whose name
such Security shall be registered upon the books of the Company as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notice of ownership or writing thereon made by anyone other than the Security Registrar)
for the purpose of receiving payment of or on account of the principal of, premium, if any, and (subject to Section 2.03) interest
on such Security and for all other purposes; and neither the Company nor the Trustee nor any paying agent nor any Security Registrar
shall be affected by any notice to the contrary.
Section 8.04 Certain
Securities Owned by Company Disregarded.
In determining whether the holders of the requisite aggregate
principal amount of Securities of a particular series have concurred in any direction, consent or waiver under this Indenture,
the Securities of that series that are owned by the Company or any other obligor on the Securities of that series or by any Person
directly or indirectly controlling or controlled by or under common control with the Company or any other obligor on the Securities
of that series shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that for
the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver, only Securities
of such series that the Trustee actually knows are so owned shall be so disregarded. The Securities so owned that have been pledged
in good faith may be regarded as Outstanding for the purposes of this Section, if the pledgee shall establish to the satisfaction
of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not a Person directly
or indirectly controlling or controlled by or under direct or indirect common control with the Company or any such other obligor.
In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to
the Trustee.
Section 8.05 Actions
Binding on Future Securityholders.
At any time prior to (but not after) the evidencing to the Trustee,
as provided in Section 8.01, of the taking of any action by the holders of the majority or percentage in aggregate principal amount
of the Securities of a particular series specified in this Indenture in connection with such action, any holder of a Security of
that series that is shown by the evidence to be included in the Securities the holders of which have consented to such action may,
by filing written notice with the Trustee, and upon proof of holding as provided in Section 8.02, revoke such action so far as
concerns such Security. Except as aforesaid any such action taken by the holder of any Security shall be conclusive and binding
upon such holder and upon all future holders and owners of such Security, and of any Security issued in exchange therefor, on registration
of transfer thereof or in place thereof, irrespective of whether or not any notation in regard thereto is made upon such Security.
Any action taken by the holders of the majority or percentage in aggregate principal amount of the Securities of a particular series
specified in this
Indenture in connection with such action shall be conclusively
binding upon the Company, the Trustee and the holders of all the Securities of that series.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental
Indentures Without the Consent of Securityholders.
In addition to any supplemental indenture otherwise authorized
by this Indenture, the Company and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act as then in effect), without the consent of the Securityholders,
for one or more of the following purposes:
(a)
to
cure any ambiguity, defect, or inconsistency herein or in the Securities of any series;
(b)
to
comply with Article Ten;
(c)
to
provide for uncertificated Securities in addition to or in place of certificated Securities and to make all appropriate changes
for such purpose;
(d)
to
add to the covenants, restrictions, conditions or provisions relating to the Company for the benefit of the holders of all or any
series of Securities (and if such covenants, restrictions, conditions or provisions are to be for the benefit of less than all
series of Securities, stating that such covenants, restrictions, conditions or provisions are expressly being included solely for
the benefit of such series), to make the occurrence, or the occurrence and the continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an Event of Default, or to surrender any right or power herein conferred upon
the Company;
(e)
to
add to, delete from, or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue,
authentication, and delivery of Securities, as herein set forth;
(f)
to
make any change that does not adversely affect the rights of any Securityholder in any material respect;
(g)
to
provide for the issuance of and establish the form and terms and conditions of the Securities of any series as provided in Section
2.01, to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or any series
of Securities, or to add to the rights of the holders of any series of Securities;
(h)
to
evidence and provide for the acceptance of appointment hereunder by a successor trustee; or
(i)
to
comply with any requirements of the Securities and Exchange Commission or any successor in connection with the qualification of
this Indenture under the Trust Indenture Act.
The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, and to make any further appropriate agreements and stipulations that may be therein
contained, but the Trustee shall not be obligated to enter into any such supplemental indenture that affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent of the holders of any of the Securities at the time
Outstanding, notwithstanding any of the provisions of Section 9.02.
Section 9.02 Supplemental
Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Section 8.01) of
the holders of not less than a majority in aggregate principal amount of the Securities of each series affected by such supplemental
indenture or indentures at the time Outstanding, the Company, when authorized by a Board Resolution, and the Trustee may from time
to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect) for the purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner not covered by Section 9.01
the rights of the holders of the Securities of such series under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the holders of each Security then Outstanding and affected thereby, (a) extend the fixed maturity
of any Securities of any series, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption thereof or (b) reduce the aforesaid percentage of Securities, the holders
of which are required to consent to any such supplemental indenture.
It shall not be necessary for the consent of the Securityholders
of any series affected thereby under this Section to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such consent shall approve the substance thereof.
Section 9.03 Effect
of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to
the provisions of this Article or of Section 10.01, this Indenture shall, with respect to such series, be and be deemed to be modified
and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under
this Indenture of the Trustee, the Company and the holders of Securities of the series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
Section 9.04 Securities
Affected by Supplemental Indentures.
Securities of any series affected by a supplemental indenture,
authenticated and delivered after the execution of such supplemental indenture pursuant to the provisions of this Article or of
Section 10.01, may bear a notation in form approved by the Company, provided such form meets the requirements of any securities
exchange upon which such series may be listed, as to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of that series so modified as to conform, in the opinion of the Board of Directors, to any modification
of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated by the Trustee and
delivered in exchange for the Securities of that series then Outstanding.
Section 9.05 Execution
of Supplemental Indentures.
Upon the request of the Company, accompanied by its Board Resolutions
authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of
Securityholders required to consent thereto as aforesaid, the Trustee shall join with the Company in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture
or otherwise, in which case the Trustee may in its discretion but shall not be obligated to enter into such supplemental indenture.
The Trustee, subject to the provisions of Section 7.01, will be entitled to receive and will be fully protected in relying upon
an Officers’ Certificate and an Opinion of Counsel stating that any supplemental indenture executed pursuant to this Article
is authorized or permitted by, and conforms to, the terms of this Article and that it is proper for the Trustee under the provisions
of this Article to join in the execution thereof; provided, however, that such Officers’ Certificate or Opinion of Counsel
need not be provided in connection with the execution of a supplemental indenture that establishes the terms of a series of Securities
pursuant to Section 2.01 hereof.
Promptly after the execution by the Company and the Trustee
of any supplemental indenture pursuant to the provisions of this Section, the Trustee shall transmit by mail, first class postage
prepaid, a notice, setting forth in general terms the substance of such supplemental indenture, to the Securityholders of all series
affected thereby as their names and addresses appear upon the Security Register. Any failure of the Trustee to mail such notice,
or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
ARTICLE 10
SUCCESSOR ENTITY
Section 10.01 Company
May Consolidate, Etc.
Except as provided pursuant to Section 2.01 pursuant to a Board
Resolution, and set forth in an Officers’ Certificate, or established in one or more indentures supplemental to this Indenture,
nothing contained in this Indenture shall prevent any consolidation or merger of the Company with or into any other Person (whether
or not affiliated with the Company) or successive consolidations or mergers in which the Company or its successor or successors
shall be a party or parties, or shall prevent any sale, conveyance, transfer or other disposition of the property of the Company
or its successor or successors as an entirety, or substantially as an entirety, to any other corporation (whether or not affiliated
with the Company or its successor or successors) authorized to acquire and operate the same; provided, however, the Company hereby
covenants and agrees that, upon any such consolidation or merger (in each case, if the Company is not the survivor of such transaction),
sale, conveyance, transfer or other disposition, the due and punctual payment of the principal of (premium, if any) and interest
on all of the Securities of all series in accordance with the terms of each series, according to their tenor, and the due and punctual
performance and observance of all the covenants and conditions of this Indenture with respect to each series or established with
respect to such series pursuant to Section 2.01 to be kept or performed by the Company shall be expressly assumed, by supplemental
indenture (which shall conform to the provisions of the Trust Indenture Act, as then in effect) reasonably satisfactory in form
to the Trustee executed and delivered to the Trustee by the entity formed by such consolidation, or into which the Company shall
have been merged, or by the entity which shall have acquired such property.
Section 10.02 Successor
Entity Substituted.
(a)
In
case of any such consolidation, merger, sale, conveyance, transfer or other disposition and upon the assumption by the successor
entity by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the obligations
set forth under Section 10.01 on all of the Securities of all series Outstanding, such successor entity shall succeed to and be
substituted for the Company with the same effect as if it had been named as the Company herein, and thereupon the predecessor corporation
shall be relieved of all obligations and covenants under this Indenture and the Securities.
(b)
In
case of any such consolidation, merger, sale, conveyance, transfer or other disposition, such changes in phraseology and form (but
not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
(c)
Nothing
contained in this Article shall require any action by the Company in the case of a consolidation or merger of any Person into the
Company where the Company is the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise, of
all or any part of the property of any other Person (whether or not affiliated with the Company).
Section 10.03 Evidence
of Consolidation, Etc. to Trustee.
The Trustee, subject to the provisions of Section 7.01, may
receive an Officers’ Certificate or an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale,
conveyance, transfer or other disposition, and any such assumption, comply with the provisions of this Article.
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction
and Discharge of Indenture.
If at any time: (a) the Company shall have delivered to the
Trustee for cancellation all Securities of a series theretofore authenticated and not delivered to the Trustee for cancellation
(other than any Securities that shall have been destroyed, lost or stolen and that shall have been replaced or paid as provided
in Section 2.07 and Securities for whose payment money or Governmental Obligations have theretofore been deposited in trust or
segregated and held in trust by the Company and thereupon repaid to the Company or discharged from such trust, as provided in Section
11.05); or (b) all such Securities of a particular series not theretofore delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company shall deposit or
cause to be deposited with the Trustee as trust funds the entire amount in moneys or Governmental Obligations or a combination
thereof, sufficient in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay at maturity or upon redemption all Securities of that series not theretofore delivered
to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such date of maturity
or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable
hereunder with respect to such series by the Company then this Indenture shall thereupon cease to be of further effect with respect
to such series except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall survive until the
date of maturity or redemption date, as the case may be, and Sections 7.06 and 11.05, that shall survive to such date and thereafter,
and the Trustee, on demand of the Company and at the cost and expense of the Company shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to such series.
Section 11.02 Discharge
of Obligations.
If at any time all such Securities of a particular series not
heretofore delivered to the Trustee for cancellation or that have not become due and payable as described in Section 11.01 shall
have been paid by the Company by depositing irrevocably with the Trustee as trust funds moneys or an amount of Governmental Obligations
sufficient to pay at maturity or upon redemption all such Securities of that series not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and interest due or to become due to such date of maturity or date fixed
for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable hereunder by the
Company with respect to such series, then after the date such moneys or Governmental Obligations, as the case may be, are deposited
with the Trustee the obligations of the Company under this Indenture with respect to such series shall cease to be of further effect
except for the provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02, 4,03, 7.05, 7.10 and 11.05 hereof that shall survive until
such Securities shall mature and be paid.
Thereafter, Sections 7.06 and 11.05 shall survive.
Section 11.03 Deposited
Moneys to be Held in Trust.
All moneys or Governmental Obligations deposited with the Trustee
pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be available for payment as due, either directly or through
any paying agent (including the Company acting as its own paying agent), to the holders of the particular series of Securities
for the payment or redemption of which such moneys or Governmental Obligations have been deposited with the Trustee.
Section 11.04 Payment
of Moneys Held by Paying Agents.
In connection with the satisfaction and discharge of this Indenture
all moneys or Governmental Obligations then held by any paying agent under the provisions of this Indenture shall, upon demand
of the Company, be paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect
to such moneys or Governmental Obligations.
Section 11.05 Repayment
to Company.
Any moneys or Governmental Obligations deposited with any paying
agent or the Trustee, or then held by the Company, in trust for payment of principal of or premium, if any, or interest on the
Securities of a particular series that are not applied but remain unclaimed by the holders of such Securities for at least two
years after the date upon which the principal of (and premium, if any) or interest on such Securities shall have respectively become
due and payable, or such other shorter period set forth in applicable escheat or abandoned or unclaimed property law, shall be
repaid to the Company on May 31 of each year or upon the Company’s request or (if then held by the Company) shall be discharged
from such trust; and thereupon the paying agent and the Trustee shall be released from all further liability with respect to such
moneys or Governmental Obligations, and the holder of any of the Securities entitled to receive such payment shall thereafter,
as a general creditor, look only to the Company for the payment thereof.
ARTICLE 12
IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS
Section 12.01 No
Recourse.
No recourse under or upon any obligation, covenant or agreement
of this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall be had against any
incorporator, shareholder, officer or director, past, present or future as such, of the Company or of any predecessor or successor
corporation, either directly or through the Company or any such predecessor or successor corporation, 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, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators, shareholders, officers or directors as such, of the
Company or of any predecessor or 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 Securities or implied
therefrom; and that any and all such personal liability of every name and nature, 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, shareholder, 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 Securities 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 issuance of such Securities.
ARTICLE 13
MISCELLANEOUS PROVISIONS
Section 13.01 Effect
on Successors and Assigns.
All the covenants, stipulations, promises and agreements in
this Indenture made by or on behalf of the Company shall bind its successors and assigns, whether so expressed or not.
Section 13.02 Actions
by Successor.
Any act or proceeding by any provision of this Indenture authorized
or required to be done or performed by any board, committee or officer of the Company shall and may be done and performed with
like force and effect by the corresponding board, committee or officer of any corporation that shall at the time be the lawful
successor of the Company.
Section 13.03 Surrender
of Company Powers.
The Company by instrument in writing executed by authority of
its Board of Directors and delivered to the Trustee may surrender any of the powers reserved to the Company, and thereupon such
power so surrendered shall terminate both as to the Company and as to any successor corporation.
Section 13.04 Notices.
Except as otherwise expressly provided herein, any notice, request
or demand that by any provision of this Indenture is required or permitted to be given, made or served by the Trustee or by the
holders of Securities or by any other Person pursuant to this Indenture to or on the Company may be given or served by being deposited
in first class mail, postage prepaid, addressed (until another address is filed in writing by the Company with the Trustee), as
follows: C T Corporation System, 111 Eighth Avenue, New York, New York 10011, with a copy to Loeb & Loeb, LLP, 345 Park Avenue,
New York, New York 10154, Attn: Mitchell S. Nussbaum, Esq. Any notice, election, request or demand by the Company or any Securityholder
or by any other Person pursuant to this Indenture to or upon the Trustee shall be deemed to have been sufficiently given or made,
for all purposes, if given or made in writing at the Corporate Trust Office of the Trustee.
Section 13.05 Governing
Law.
This Indenture and each Security shall be deemed to be a contract
made under the internal laws of the State of New York, and for all purposes shall be construed in accordance with the laws of said
State, except to the extent that the Trust Indenture Act is applicable.
Section 13.06 Treatment
of Securities as Debt.
It is intended that the Securities will be treated as indebtedness
and not as equity for federal income tax purposes. The provisions of this Indenture shall be interpreted to further this intention.
Section 13.07 Certificates
and Opinions as to Conditions Precedent.
(a)
Upon
any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company
shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent provided for in this Indenture
(other than the certificate to be delivered pursuant to Section 13.13) 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 have been complied with, except
that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.
(b)
Each
certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition
or covenant in this Indenture shall include (i) a statement that the Person making such certificate or opinion has read such covenant
or condition; (ii) 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; (iii) a statement that, in the opinion of such Person, he has made
such examination or investigation as is reasonably necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and (iv) a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been complied with.
Section 13.08 Payments
on Business Days.
Except as provided pursuant to Section 2.01 pursuant to a Board
Resolution, and set forth in an Officers’ Certificate, or established in one or more indentures supplemental to this Indenture,
in any case where the date of maturity of interest or principal of any Security or the date of redemption of any Security shall
not be a Business Day, then payment of interest or principal (and premium, if any) may be made on the next succeeding Business
Day with the same force and effect as if made on the nominal date of maturity or redemption, and no interest shall accrue for the
period after such nominal date.
Section 13.09 Conflict
with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
Section 13.10 Indenture
and Securities Solely Corporate Obligations.
No recourse for the payment of the principal of, premium, if
any, or interest on any Securities, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon
any obligation, covenant or agreement of the Company in this Indenture or in any supplemental indenture or in any Security, or
because of the creation of any indebtedness represented thereby, shall be had against any incorporator, shareholder, employee,
agent, officer, director or subsidiary, as such, past, present or future, of the Company or of any successor entity, either directly
or through the Company or any successor entity, 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 all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this Indenture and the issuance of the Securities.
Section 13.11 Counterparts.
This Indenture may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
Section 13.12 Separability.
In case any one or more of the provisions contained in this
Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such Securities,
but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision had never been
contained herein or therein.
Section 13.13 Compliance
Certificates.
The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year during which any Securities of any series were outstanding, a compliance certificate stating whether
or not the signer knows of any Default or Event of Default that occurred during such fiscal year. Such certificate shall contain
a certification from the principal executive officer, principal financial officer or principal accounting officer of the Company
that a review has been conducted of the activities of the Company and the Company’s performance under this Indenture and
that the Company has complied with all conditions and covenants under this Indenture. For purposes of this Section 13.13, such
compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture. If
the officer of the Company signing such certificate has knowledge of such a Default or Event of Default, the certificate shall
describe any such Default or Event of Default and its status.
IN WITNESS WHEREOF
, the parties hereto have caused this
Indenture to be duly executed all as of the day and year first above written.
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AMBOW EDUCATION HOLDING LTD.
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By:
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Name:
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Title:
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[TRUSTEE],
as Trustee
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By:
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Name:
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Title:
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CROSS-REFERENCE TABLE (1)
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Section of Trust Indenture Act of 1939, as Amended
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Section of Indenture
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310(a)
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7.09
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310(b)
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7.08
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7.10
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310(c)
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Inapplicable
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311(a)
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7.13
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311(b)
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7.13
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311(c)
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Inapplicable
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312(a)
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5.01
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5.02(a)
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312(b)
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5.02(c)
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312(c)
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5.02(c)
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313(a)
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5.04(a)
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313(b)
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5.04(b)
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313(c)
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5.04(a)
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5.04(b)
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313(d)
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5.04(c)
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314(a)
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5.03
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13.12
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314(b)
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Inapplicable
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314(c)
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13.07(a)
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314(d)
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Inapplicable
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Section of Trust Indenture Act of 1939, as Amended
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Section of Indenture
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314(e)
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13.07(b)
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314(f)
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Inapplicable
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315(a)
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7.01(a)
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7.01(b)
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315(b)
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7.14
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315(c)
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7.01
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315(d)
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7.01(b)
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315(e)
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6.07
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316(a)
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6.06
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8.04
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316(b)
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6.04
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316(c)
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8.01
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317(a)
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6.02
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317(b)
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4.03
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318(a)
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13.09
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(1)
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This Cross-Reference Table does not constitute part of
the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions.
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Exhibit 4.10
AMBOW EDUCATION HOLDING LTD.
Issuer
AND
[TRUSTEE]
Trustee
INDENTURE
Dated as of [·], 20[·]
Subordinated Debt Securities
TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS
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1
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Section 1.01
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Definitions of Terms
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1
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ARTICLE 2 ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
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4
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Section 2.01
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Designation and Terms of Securities
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4
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Section 2.02
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Form of Securities and Trustee’s Certificate
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6
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Section 2.03
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Denominations: Provisions for Payment
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6
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Section 2.04
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Execution and Authentication
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8
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Section 2.05
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Registration of Transfer and Exchange
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8
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Section 2.06
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Temporary Securities
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9
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Section 2.07
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Mutilated, Destroyed, Lost or Stolen Securities
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10
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Section 2.08
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Cancellation
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10
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Section 2.09
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Benefits of Indenture
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10
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Section 2.10
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Authenticating Agent
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11
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Section 2.11
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Global Securities
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11
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ARTICLE 3 REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
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12
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Section 3.01
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Redemption
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12
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Section 3.02
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Notice of Redemption
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12
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Section 3.03
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Payment Upon Redemption
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13
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Section 3.04
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Sinking Fund
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14
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Section 3.05
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Satisfaction of Sinking Fund Payments with Securities
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14
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Section 3.06
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Redemption of Securities for Sinking Fund
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14
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ARTICLE 4 COVENANTS
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14
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Section 4.01
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Payment of Principal, Premium and Interest
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14
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Section 4.02
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Maintenance of Office or Agency
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15
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Section 4.03
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Paying Agents
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15
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Section 4.04
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Appointment to Fill Vacancy in Office of Trustee
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16
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Section 4.05
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Compliance with Consolidation Provisions
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16
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ARTICLE 5 SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
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16
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Section 5.01
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Company to Furnish Trustee Names and Addresses of Securityholders
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16
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Section 5.02
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Preservation Of Information; Communications With Securityholders
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16
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Section 5.03
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Reports by the Company
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17
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Section 5.04
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Reports by the Trustee
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17
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ARTICLE 6 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
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17
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Section 6.01
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Events of Default
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17
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Section 6.02
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Collection of Indebtedness and Suits for Enforcement by Trustee
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19
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Section 6.03
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Application of Moneys or Property Collected
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20
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Section 6.04
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Limitation on Suits
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20
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Section 6.05
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Rights and Remedies Cumulative; Delay or Omission Not Waiver
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21
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Section 6.06
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Control by Securityholders
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21
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Section 6.07
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Undertaking to Pay Costs
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22
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ARTICLE 7 CONCERNING THE TRUSTEE
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22
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Section 7.01
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Certain Duties and Responsibilities of Trustee
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22
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Section 7.02
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Certain Rights of Trustee
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23
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Section 7.03
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Trustee Not Responsible for Recitals or Issuance or Securities
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24
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Section 7.04
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May Hold Securities
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24
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Section 7.05
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Moneys Held in Trust
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25
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Section 7.06
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Compensation and Reimbursement
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25
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Section 7.07
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Reliance on Officers’ Certificate
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25
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Section 7.08
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Disqualification; Conflicting Interests
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25
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Section 7.09
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Corporate Trustee Required; Eligibility
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26
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Section 7.10
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Resignation and Removal; Appointment of Successor
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26
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Section 7.11
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Acceptance of Appointment By Successor
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27
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Section 7.12
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Merger, Conversion, Consolidation or Succession to Business
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28
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Section 7.13
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Preferential Collection of Claims Against the Company
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28
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Section 7.14
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Notice of Default
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28
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ARTICLE 8 CONCERNING THE SECURITYHOLDERS
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29
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Section 8.01
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Evidence of Action by Securityholders
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29
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Section 8.02
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Proof of Execution by Securityholders
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29
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Section 8.03
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Who May be Deemed Owners
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29
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Section 8.04
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Certain Securities Owned by Company Disregarded
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30
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Section 8.05
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Actions Binding on Future Securityholders
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30
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ARTICLE 9 SUPPLEMENTAL INDENTURES
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30
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Section 9.01
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Supplemental Indentures Without the Consent of Securityholders
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30
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Section 9.02
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Supplemental Indentures With Consent of Securityholders
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31
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Section 9.03
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Effect of Supplemental Indentures
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32
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Section 9.04
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Securities Affected by Supplemental Indentures
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32
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Section 9.05
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Execution of Supplemental Indentures
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32
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ARTICLE 10 SUCCESSOR ENTITY
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33
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Section 10.01
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Company May Consolidate, Etc.
|
33
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Section 10.02
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Successor Entity Substituted
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33
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Section 10.03
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Evidence of Consolidation, Etc. to Trustee
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33
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ARTICLE 11 SATISFACTION AND DISCHARGE
|
34
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Section 11.01
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Satisfaction and Discharge of Indenture
|
34
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Section 11.02
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Discharge of Obligations
|
34
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Section 11.03
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Deposited Moneys to be Held in Trust
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34
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Section 11.04
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Payment of Moneys Held by Paying Agents
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35
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Section 11.05
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Repayment to Company
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35
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ARTICLE 12 IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS
|
35
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Section 12.01
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No Recourse
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35
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ARTICLE 13 MISCELLANEOUS PROVISIONS
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36
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Section 13.01
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Effect on Successors and Assigns
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36
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Section 13.02
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Actions by Successor
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36
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Section 13.03
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Surrender of Company Powers
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36
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Section 13.04
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Notices
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36
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Section 13.05
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Governing Law
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36
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Section 13.06
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Treatment of Securities as Debt
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36
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Section 13.07
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Certificates and Opinions as to Conditions Precedent
|
36
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Section 13.08
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Payments on Business Days
|
37
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Section 13.09
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Conflict with Trust Indenture Act
|
37
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Section 13.10
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Indenture and Securities Solely Corporate Obligations
|
37
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Section 13.11
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Counterparts
|
37
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Section 13.12
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Separability
|
38
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Section 13.13
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Compliance Certificates
|
38
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ARTICLE 14 SUBORDINATION OF SECURITIES
|
38
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Section 14.01
|
Agreement of Subordination
|
38
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Section 14.02
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Payments to Securityholders
|
38
|
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Section 14.03
|
Subrogation of Securities
|
40
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Section 14.04
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Authorization by Securityholders
|
41
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Section 14.05
|
Notice to Trustee
|
41
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Section 14.06
|
Trustee’s Relation to Senior Indebtedness
|
42
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Section 14.07
|
No Impairment of Subordination
|
42
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Section 14.08
|
Rights of Trustee
|
42
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(1)
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This Table of Contents does not constitute part of the
Indenture and shall not have any bearing on the interpretation of any of its terms or provisions.
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INDENTURE
INDENTURE
, dated as of [·], 20[·], among
AMBOW EDUCATION HOLDING LTD., a Cayman Islands exempted company (the “Company”), and [TRUSTEE], as trustee (the “Trustee”).
WHEREAS
, for its lawful corporate purposes, the Company
has duly authorized the execution and delivery of this Indenture to provide for the issuance of subordinated debt securities (hereinafter
referred to as the “Securities”), in an unlimited aggregate principal amount to be issued from time to time in one
or more series as in this Indenture provided, as registered Securities without coupons, to be authenticated by the certificate
of the Trustee;
WHEREAS
, to provide the terms and conditions upon which
the Securities are to be authenticated, issued and delivered, the Company has duly authorized the execution of this Indenture;
and
WHEREAS
, all things necessary to make this Indenture
a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE
, in consideration of the premises and
the purchase of the Securities by the holders thereof, it is mutually covenanted and agreed as follows for the equal and ratable
benefit of the holders of Securities:
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions
of Terms.
The terms defined in this Section (except as in this Indenture
or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires) for all purposes of
this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section and shall
include the plural as well as the singular. All other terms used in this Indenture that are defined in the Trust Indenture Act
of 1939, as amended, or that are by reference in such Act defined in the Securities Act of 1933, as amended (except as herein or
any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires), shall have the meanings
assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the execution of this
instrument.
“
Authenticating Agent
” means an authenticating
agent with respect to all or any of the series of Securities appointed by the Trustee pursuant to Section 2.10.
“
Bankruptcy Law
” means Title 11, U.S.
Code, or any similar federal or state law for the relief of debtors.
“
Board of Directors
” means the Board
of Directors of the Company or any duly authorized committee of such Board.
“
Board Resolution
” means a copy of
a resolution certified by any Officer to have been duly adopted by the Board of Directors and to be in full force and effect on
the date of such certification.
“
Business Day
” means, with respect
to any series of Securities, any day other than a day on which federal or state banking institutions in the Borough of Manhattan,
the City of New York, or in the city of the Corporate Trust Office of the Trustee, are authorized or obligated by law, executive
order or regulation to close.
“
Certificate
” means a certificate
signed by any Officer. The Certificate need not comply with the provisions of Section 13.07.
“
Company
” means Ambow Education Holding
Ltd., a Cayman Islands exempted company, and, subject to the provisions of Article Ten, shall also include its successors and assigns.
“
Corporate Trust Office
” means the
office of the Trustee at which, at any particular time, its corporate trust business shall be principally administered, which office
at the date hereof is located at .
“
Custodian
” means any receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Law.
“
Default
” means any event, act or
condition that with notice or lapse of time, or both, would constitute an Event of Default.
“
Depositary
” means, with respect to
Securities of any series for which the Company shall determine that such Securities will be issued as a Global Security, The Depository
Trust Company, New York, New York, another clearing agency, or any successor registered as a clearing agency under the Securities
and Exchange Act of 1934, as amended (the “Exchange Act”), or other applicable statute or regulation, which, in each
case, shall be designated by the Company pursuant to either Section 2.01 or 2.11.
“
Event of Default
” means, with respect
to Securities of a particular series, any event specified in Section 6.01, continued for the period of time, if any, therein designated.
“
Global Security
” means, with respect
to any series of Securities, a Security executed by the Company and delivered by the Trustee to the Depositary or pursuant to the
Depositary’s instruction, all in accordance with the Indenture, which shall be registered in the name of the Depositary or
its nominee.
“
Governmental Obligations
” means securities
that are (a) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or
(b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America,
the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America that,
in either case, are not callable or redeemable at the option of the issuer thereof at any time prior to the stated maturity of
the Securities, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any
such Governmental Obligation or a specific payment of principal of or interest on any such Governmental Obligation held by such
custodian for the account of the holder of such depositary receipt; provided, however, that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received
by the custodian in respect of the Governmental Obligation or the specific payment of principal of or interest on the Governmental
Obligation evidenced by such depositary receipt.
“
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.
“
Indenture
” means this instrument
as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto
entered into in accordance with the terms hereof.
“
Interest Payment Date
”, when used
with respect to any installment of interest on a Security of a particular series, means the date specified in such Security or
in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date on which an installment
of interest with respect to Securities of that series is due and payable.
“
Officer
” means, with respect to the
Company, a director, the chairman of the Board of Directors, a chief executive officer, a president, a chief financial officer,
chief operating officer, any executive vice president, any senior vice president, any vice president, the treasurer or any assistant
treasurer, the controller or any assistant controller or the secretary or any assistant secretary or any other person appointed
as an officer of the Company.
“
Officers’ Certificate
” means
a certificate signed by any two Officers. Each such certificate shall include the statements provided for in Section 13.07, if
and to the extent required by the provisions thereof.
“
Opinion of Counsel
” means an opinion
in writing subject to customary exceptions of legal counsel, who may be an employee of or counsel for the Company, that is delivered
to the Trustee in accordance with the terms hereof. Each such opinion shall include the statements provided for in Section 13.07,
if and to the extent required by the provisions thereof.
“
Outstanding
”, when used with reference
to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time, all Securities of that
series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore canceled
by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that have previously been
canceled; (b) Securities or portions thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary
amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been
set aside and segregated in trust by the Company (if the Company shall act as its own paying agent); provided, however, that if
such Securities or portions of such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall
have been given as in Article Three provided, or provision satisfactory to the Trustee shall have been made for giving such notice;
and (c) Securities in lieu of or in substitution for which other Securities shall have been authenticated and delivered pursuant
to the terms of Section 2.07.
“
Person
” means any individual, company,
corporation, partnership, joint venture, joint-stock company, limited liability company, association, trust, unincorporated organization,
any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“
Predecessor Security
” of any particular
Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security;
and, for the purposes of this definition, any Security authenticated and delivered under Section 2.07 in lieu of a lost, destroyed
or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“
Responsible Officer
” when used with
respect to the Trustee means the chairman of its board of directors, the chief executive officer, the president, any vice president,
the secretary, the treasurer, any trust officer, any corporate trust officer or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with the particular subject.
“
Securities
” means the debt Securities
authenticated and delivered under this Indenture.
“
Securityholder
”, “holder of
Securities”, “registered holder”, or other similar term, means the Person or Persons in whose name or names a
particular Security shall be registered on the books of the Company kept for that purpose in accordance with the terms of this
Indenture.
“
Security Register
” and “
Security
Registrar
” shall have the meanings as set forth in Section 2.05.
“
Subsidiary
” means, with respect to
any Person, (i) any corporation at least a majority of whose outstanding Voting Stock shall at the time be owned, directly or indirectly,
by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, (ii) any general partnership,
joint venture or similar entity, at least a majority of whose outstanding partnership or similar interests shall at the time be
owned by such Person, or by one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries and (iii) any
limited partnership of which such Person or any of its Subsidiaries is a general partner.
“
Trustee
” means , and, subject to
the provisions of Article Seven, shall also include its successors and assigns, and, if at any time there is more than one Person
acting in such capacity hereunder, “Trustee” shall mean each such Person. The term “Trustee” as used with
respect to a particular series of the Securities shall mean the trustee with respect to that series.
“
Trust Indenture Act
” means the Trust
Indenture Act of 1939, as amended.
“
Voting Stock
”, as applied to shares
or stock of any Person, means shares, interests, participations or other equivalents in the equity interest (however designated)
in such Person having ordinary voting power for the election of a majority of the directors (or the equivalent) of such Person,
other than shares, interests, participations or other equivalents having such power only by reason of the occurrence of a contingency.
ARTICLE 2
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES
Section 2.01 Designation
and Terms of Securities.
(a) The
aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more series up to the aggregate principal amount of Securities of that series from time to time authorized
by or pursuant to a Board Resolution or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of
Securities of any 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:
(1) the
title of the Securities of the series (which shall distinguish the Securities of that series from all other Securities);
(2) any
limit upon the aggregate principal amount of the Securities of that series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of that series);
(3) the
date or dates on which the principal of the Securities of the series is payable, any original issue discount that may apply to
the Securities of that series upon their issuance, the principal amount due at maturity, and the place(s) of payment;
(4) the
rate or rates at which the Securities of the series shall bear interest or the manner of calculation of such rate or rates, if
any;
(5) the
date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest will be payable or the manner
of determination of such Interest Payment Dates, the place(s) of payment, and the record date for the determination of holders
to whom interest is payable on any such Interest Payment Dates or the manner of determination of such record dates;
(6) the
right, if any, to extend the interest payment periods and the duration of such extension;
(7) the
period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series may
be redeemed, in whole or in part, at the option of the Company;
(8) the
obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund, mandatory redemption,
or analogous provisions (including payments made in cash in satisfaction of future sinking fund obligations) 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,
Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) the
form of the Securities of the series including the form of the Certificate of Authentication for such series;
(10) if
other than denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, the denominations in which the
Securities of the series shall be issuable;
(11) any
and all other terms (including terms, to the extent applicable, relating to any auction or remarketing of the Securities of that
series and any security for the obligations of the Company with respect to such Securities) with respect to such series (which
terms shall not be inconsistent with the terms of this Indenture, as amended by any supplemental indenture) including any terms
which may be required by or advisable under United States laws or regulations or advisable in connection with the marketing of
Securities of that series;
(12) whether
the Securities are issuable as a Global Security and, in such case, the terms and the identity of the Depositary for such series;
(13) whether
the Securities will be convertible into or exchangeable for shares or other securities of the Company or any other Person and,
if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, including the conversion or
exchange price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional (at the Company’s
option or the holders’ option) conversion or exchange features, and the applicable conversion or exchange period;
(14) if
other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to Section 6.01;
(15) any
additional or different Events of Default or restrictive covenants (which may include, among other restrictions, restrictions on
the Company’s ability or the ability of the Company’s Subsidiaries to: incur additional indebtedness; issue additional
securities; create liens; pay dividends or make distributions in respect of their shares or capital stock; redeem shares or capital
stock; place restrictions on such Subsidiaries placing restrictions on their ability to pay dividends, make distributions or transfer
assets; make investments or other restricted payments; sell or otherwise dispose of assets; enter into sale-leaseback transactions;
engage in transactions with shareholders and affiliates; issue or sell shares or stock of their Subsidiaries; or effect a consolidation
or merger) or financial covenants (which may include, among other financial covenants, financial covenants that require the Company
and its Subsidiaries to maintain specified interest coverage, fixed charge, cash flow-based or asset-based ratios) provided for
with respect to the Securities of the series;
(16) if
other than dollars, the coin or currency in which the Securities of the series are denominated (including, but not limited to,
foreign currency);
(17) the
terms and conditions, if any, upon which the Company shall pay amounts in addition to the stated interest, premium, if any and
principal amounts of the Securities of the series to any Securityholder that is not a “United States person” for federal
tax purposes;
(18) any
restrictions on transfer, sale or assignment of the Securities of the series; and
(19) the
subordination terms of the Securities of the series.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant to any such Board Resolution or in any indentures
supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution of the Company, 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
of the Company setting forth the terms of the series.
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 dates.
Section 2.02 Form
of Securities and Trustee’s Certificate.
The Securities of any series and the Trustee’s certificate
of authentication to be borne by such Securities shall be substantially of the tenor and purport as set forth in one or more indentures
supplemental hereto or as provided in a Board Resolution, and set forth in an Officers’ Certificate, and they may have such
letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved
thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required
to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange
on which Securities of that series may be listed, or to conform to usage.
Section 2.03 Denominations:
Provisions for Payment.
The Securities shall be issuable as registered Securities and
in the denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, subject to Section 2.01(a)(10). The
Securities of a particular series shall bear interest payable on the dates and at the rate specified with respect to that series.
Subject to Section 2.01(a)(16), the principal of and the interest on the Securities of any series, as well as any premium thereon
in case of redemption thereof prior to maturity, shall be payable in the coin or currency of the United States of America that
at the time is legal tender for public and private debt, at the office or agency of the Company maintained for that purpose in
the Borough of Manhattan, the City and State of New York. Each Security shall be dated the date of its authentication. Interest
on the Securities shall be computed on the basis of a 360-day year composed of twelve 30-day months.
The interest installment on any Security that is payable, and
is punctually paid or duly provided for, on any Interest Payment Date for Securities of that series shall be paid to the Person
in whose name said Security (or one or more Predecessor Securities) is registered at the close of business on the regular record
date for such interest installment. In the event that any Security of a particular series or portion thereof is called for redemption
and the redemption date is subsequent to a regular record date with respect to any Interest Payment Date and prior to such Interest
Payment Date, interest on such Security will be paid upon presentation and surrender of such Security as provided in Section 3.03.
Any interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for Securities of the same series (herein called “Defaulted Interest”)
shall forthwith cease to be payable to the registered holder on the relevant regular record date by virtue of having been such
holder; and such Defaulted Interest shall be paid by the Company, at its election, as provided in clause (1) or clause (2) below:
(1) The
Company may make payment of any Defaulted Interest on Securities to the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered at the close of business on a special record date for the payment of such Defaulted Interest,
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 such Security and the date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon
the Trustee shall fix a special record date for the payment of such Defaulted Interest which shall not be more than 15 nor 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 notice
of the proposed payment. The Trustee shall promptly notify the Company of such special record date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the special record date therefor
to be mailed, first class postage prepaid, to each Securityholder at his or her address as it appears in the Security Register
(as hereinafter defined), 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 such Securities (or their respective Predecessor Securities) are registered on such special record date.
(2) The
Company may make payment of any Defaulted Interest on any Securities in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such 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.
Unless otherwise set forth in a Board Resolution or one or more
indentures supplemental hereto establishing the terms of any series of Securities pursuant to Section 2.01 hereof, the term “regular
record date” as used in this Section with respect to a series of Securities and any Interest Payment Date for such series
shall mean either the fifteenth day of the month immediately preceding the month in which an Interest Payment Date established
for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the first day of a month, or the
first day of the month in which an Interest Payment Date established for such series pursuant to Section 2.01 hereof shall occur,
if such Interest Payment Date is the fifteenth day of a month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section, each Security
of a series delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Security of such series
shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security.
Section 2.04 Execution
and Authentication.
The Securities shall be signed on behalf of the Company by one
of its Officers. Signatures may be in the form of a manual or facsimile signature.
The Company may use the facsimile signature of any Person who
shall have been an Officer, notwithstanding the fact that at the time the Securities shall be authenticated and delivered or disposed
of such Person shall have ceased to be such an officer of the Company. The Securities may contain such notations, legends or endorsements
required by law, stock exchange rule or usage. Each Security shall be dated the date of its authentication by the Trustee.
A Security shall not be valid until authenticated manually by
an authorized signatory of the Trustee, or by an Authenticating Agent. Such signature shall be conclusive evidence that the Security
so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits of this Indenture.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any
series executed by the Company to the Trustee for authentication, together with a written order of the Company for the authentication
and delivery of such Securities, signed by an Officer, and the Trustee in accordance with such written order shall authenticate
and deliver such Securities.
In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to
Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel stating that the form and terms thereof have been
established in conformity with the provisions of this Indenture.
The Trustee shall not be required to authenticate such Securities
if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under
the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee.
Section 2.05 Registration
of Transfer and Exchange.
(a) Securities
of any series may be exchanged upon presentation thereof at the office or agency of the Company designated for such purpose in
the Borough of Manhattan, the City and State of New York, for other Securities of such series of authorized denominations, and
for a like aggregate principal amount, upon payment of a sum sufficient to cover any tax or other governmental charge in relation
thereto, all as provided in this Section. In respect of any Securities so surrendered for exchange, the Company shall execute,
the Trustee shall authenticate and such office or agency shall deliver in exchange therefor the Security or Securities of the same
series that the Securityholder making the exchange shall be entitled to receive, bearing numbers not contemporaneously outstanding.
(b) The
Company shall keep, or cause to be kept, at its office or agency designated for such purpose in the Borough of Manhattan, the City
and State of New York, or such other location designated by the Company, a register or registers (herein referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall register the Securities
and the transfers of Securities as in this Article provided and which at all reasonable times shall be open for inspection by the
Trustee. The registrar for the purpose of registering Securities and transfer of Securities as herein provided shall be appointed
as authorized by Board Resolution (the “Security Registrar”).
Upon surrender for transfer of any Security at the office or
agency of the Company designated for such purpose, the Company shall execute, the Trustee shall authenticate and such office or
agency shall deliver in the name of the transferee or transferees a new Security or Securities of the same series as the Security
presented for a like aggregate principal amount.
All Securities presented or surrendered for exchange or registration
of transfer, as provided in this Section, shall be accompanied (if so required by the Company or the Security Registrar) by a written
instrument or instruments of transfer, in form satisfactory to the Company or the Security Registrar, duly executed by the registered
holder or by such holder’s duly authorized attorney in writing.
(c) Except
as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established
in one or more indentures supplemental to this Indenture, no service charge shall be made for any exchange or registration of transfer
of Securities, or issue of new Securities in case of partial redemption of any series, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge in relation thereto, other than exchanges pursuant to Section 2.06,
Section 3.03(b) and Section 9.04 not involving any transfer.
(d) The
Company shall not be required (i) to issue, exchange or register the transfer of any Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of redemption of less than all the Outstanding Securities
of the same series and ending at the close of business on the day of such mailing, nor (ii) to register the transfer of or exchange
any Securities of any series or portions thereof called for redemption, other than the unredeemed portion of any such Securities
being redeemed in part. The provisions of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
Section 2.06 Temporary
Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and the Trustee shall authenticate and deliver, temporary Securities (printed, lithographed or typewritten)
of any authorized denomination. Such temporary Securities shall be substantially in the form of the definitive Securities in lieu
of which they are issued, but with such omissions, insertions and variations as may be appropriate for temporary Securities, all
as may be determined by the Company. Every temporary Security of any series shall be executed by the Company and be authenticated
by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities
of such series. Without unnecessary delay the Company will execute and will furnish definitive Securities of such series and thereupon
any or all temporary Securities of such series may be surrendered in exchange therefor (without charge to the holders), at the
office or agency of the Company designated for the purpose in the Borough of Manhattan, the City and State of New York, and the
Trustee shall authenticate and such office or agency shall deliver in exchange for such temporary Securities an equal aggregate
principal amount of definitive Securities of such series, unless the Company advises the Trustee to the effect that definitive
Securities need not be executed and furnished until further notice from the Company. Until so exchanged, the temporary Securities
of such series shall be entitled to the same benefits under this Indenture as definitive Securities of such series authenticated
and delivered hereunder.
Section 2.07 Mutilated,
Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall become mutilated
or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence) shall execute, and upon the Company’s
request the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the same series, bearing a number
not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution for
the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security shall furnish to the Company
and the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every case of destruction,
loss or theft, the applicant shall also furnish to the Company and the Trustee evidence to their satisfaction of the destruction,
loss or theft of the applicant’s Security and of the ownership thereof. The Trustee may authenticate any such substituted
Security and deliver the same upon the written request or authorization of any officer of the Company. Upon the issuance of any
substituted Security, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
In case any Security that has matured or is about to mature
shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security, pay or authorize
the payment of the same (without surrender thereof except in the case of a mutilated Security) if the applicant for such payment
shall furnish to the Company and the Trustee such security or indemnity as they may require to save them harmless, and, in case
of destruction, loss or theft, evidence to the satisfaction of the Company and the Trustee of the destruction, loss or theft of
such Security and of the ownership thereof.
Every replacement Security issued pursuant to the provisions
of this Section shall constitute an additional contractual obligation of the Company whether or not the mutilated, destroyed, lost
or stolen Security shall be found at any time, or be enforceable by anyone, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities of the same series duly issued hereunder. All Securities shall be
held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
Section 2.08 Cancellation.
All Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer shall, if surrendered to the Company or any paying agent, be delivered to the Trustee for
cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no Securities shall be issued in lieu thereof except
as expressly required or permitted by any of the provisions of this Indenture. In the absence of such request the Trustee may dispose
of canceled Securities in accordance with its standard procedures and deliver a certificate of disposition to the Company. If the
Company shall otherwise acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee for cancellation.
Section 2.09 Benefits
of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give or be construed to give to any Person, other than the parties hereto and the holders of the Securities (and, with respect
to the provisions of Article Fourteen, the holders of any indebtedness of the Company to which the Securities of any series are
subordinated) any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant, condition
or provision herein contained; all such covenants, conditions and provisions being for the sole benefit of the parties hereto and
of the holders of the Securities (and, with respect to the provisions of Article Fourteen, the holders of any indebtedness of the
Company to which the Securities of any series are subordinated).
Section 2.10 Authenticating
Agent.
So long as any of the Securities of any series remain Outstanding
there may be an Authenticating Agent for any or all such series of Securities which the Trustee shall have the right to appoint.
Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued
upon exchange, transfer or partial redemption thereof, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. All references in this
Indenture to the authentication of Securities by the Trustee shall be deemed to include authentication by an Authenticating Agent
for such series. Each Authenticating Agent shall be acceptable to the Company and shall be a corporation that has a combined capital
and surplus, as most recently reported or determined by it, sufficient under the laws of any jurisdiction under which it is organized
or in which it is doing business to conduct a trust business, and that is otherwise authorized under such laws to conduct such
business and is subject to supervision or examination by federal or state authorities. If at any time any Authenticating Agent
shall cease to be eligible in accordance with these provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any time (and upon request by the Company shall) terminate
the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company.
Upon resignation, termination or cessation of eligibility of any Authenticating Agent, the Trustee may appoint an eligible successor
Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor hereunder as if originally named as an Authenticating
Agent pursuant hereto.
Section 2.11 Global
Securities.
(a) If
the Company shall establish pursuant to Section 2.01 that the Securities of a particular series are to be issued as a Global Security,
then the Company shall execute and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security
that (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding
Securities of such series, (ii) shall be registered in the name of the Depositary or its nominee, (iii) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary’s instruction and (iv) shall bear a legend substantially to the following
effect: “Except as otherwise provided in Section 2.11 of the Indenture, this Security may be transferred, in whole but not
in part, only to another nominee of the Depositary or to a successor Depositary or to a nominee of such successor Depositary.”
(b) Notwithstanding
the provisions of Section 2.05, the Global Security of a series may be transferred, in whole but not in part and in the manner
provided in Section 2.05, only to another nominee of the Depositary for such series, or to a successor Depositary for such series
selected or approved by the Company or to a nominee of such successor Depositary.
(c) If
at any time the Depositary for a series of the Securities notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no longer be registered or in good standing under the Exchange
Act, or other applicable statute or regulation, and a successor Depositary for such series is not appointed by the Company within
90 days after the Company receives such notice or becomes aware of such condition, as the case may be, or if an Event of Default
has occurred and is continuing and the Company has received a request from the Depositary, this Section 2.11 shall no longer be
applicable to the Securities of such series and the Company will execute, and subject to Section 2.04, the Trustee will authenticate
and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security.
In addition, the Company may at any time determine that the Securities of any series shall no longer be represented by a Global
Security and that the provisions of this Section 2.11 shall no longer apply to the Securities of such series. In such event the
Company will execute and, subject to Section 2.04, the Trustee, upon receipt of an Officers’ Certificate evidencing such
determination by the Company, will authenticate and deliver the Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security
of such series in exchange for such Global Security. Upon the exchange of the Global Security for such Securities in definitive
registered form without coupons, in authorized denominations, the Global Security shall be canceled by the Trustee. Such Securities
in definitive registered form issued in exchange for the Global Security pursuant to this Section 2.11(c) shall be registered in
such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Depositary for delivery to the Persons
in whose names such Securities are so registered.
ARTICLE 3
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
Section 3.01 Redemption.
The Company may redeem the Securities of any series issued hereunder
on and after the dates and in accordance with the terms established for such series pursuant to Section 2.01 hereof.
Section 3.02 Notice
of Redemption.
(a) In
case the Company shall desire to exercise such right to redeem all or, as the case may be, a portion of the Securities of any series
in accordance with any right the Company reserved for itself to do so pursuant to Section 2.01 hereof, the Company shall, or shall
cause the Trustee to, give notice of such redemption to holders of the Securities of such series to be redeemed by mailing, first
class postage prepaid, a notice of such redemption not less than 30 days and not more than 90 days before the date fixed for redemption
of that series to such holders at their last addresses as they shall appear upon the Security Register, unless a shorter period
is specified in the Securities to be redeemed. Any notice that is mailed in the manner herein provided shall be conclusively presumed
to have been duly given, whether or not the registered holder receives the notice. In any case, failure duly to give such notice
to the holder of any Security of any series designated for redemption in whole or in part, or any defect in the notice, shall not
affect the validity of the proceedings for the redemption of any other Securities of such series or any other series. In the case
of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance
with any such restriction.
Each such notice of redemption shall specify the date fixed
for redemption and the redemption price at which Securities of that series are to be redeemed, and shall state that payment of
the redemption price of such Securities to be redeemed will be made at the office or agency of the Company in the Borough of Manhattan,
the City and State of New York, upon presentation and surrender of such Securities, that interest accrued to the date fixed for
redemption will be paid as specified in said notice, that from and after said date interest will cease to accrue and that the redemption
is for a sinking fund, if such is the case. If less than all the Securities of a series are to be redeemed, the notice to the holders
of Securities of that series to be redeemed in part shall specify the particular Securities to be so redeemed.
In case any Security is to be redeemed in part only, the notice
that relates to such Security shall state the portion of the principal amount thereof to be redeemed, and shall state that on and
after the redemption date, upon surrender of such Security, a new Security or Securities of such series in principal amount equal
to the unredeemed portion thereof will be issued.
(b) If
less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 45 days’ notice
(unless a shorter notice shall be satisfactory to the Trustee) in advance of the date fixed for redemption as to the aggregate
principal amount of Securities of the series to be redeemed, and thereupon the Trustee shall select, by lot or in such other manner
as it shall deem appropriate and fair in its discretion and that may provide for the selection of a portion or portions (equal
to one thousand U.S. dollars ($1,000) or any integral multiple thereof) of the principal amount of such Securities of a denomination
larger than $1,000, the Securities to be redeemed and shall thereafter promptly notify the Company in writing of the numbers of
the Securities to be redeemed, in whole or in part. The Company may, if and whenever it shall so elect, by delivery of instructions
signed on its behalf by an Officer, instruct the Trustee or any paying agent to call all or any part of the Securities of a particular
series for redemption and to give notice of redemption in the manner set forth in this Section, such notice to be in the name of
the Company or its own name as the Trustee or such paying agent may deem advisable. In any case in which notice of redemption is
to be given by the Trustee or any such paying agent, the Company shall deliver or cause to be delivered to, or permit to remain
with, the Trustee or such paying agent, as the case may be, such Security Register, transfer books or other records, or suitable
copies or extracts therefrom, sufficient to enable the Trustee or such paying agent to give any notice by mail that may be required
under the provisions of this Section.
Section 3.03 Payment
Upon Redemption.
(a) If
the giving of notice of redemption shall have been completed as above provided, the Securities or portions of Securities of the
series to be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice
at the applicable redemption price, together with interest accrued to the date fixed for redemption and interest on such Securities
or portions of Securities shall cease to accrue on and after the date fixed for redemption, unless the Company shall default in
the payment of such redemption price and accrued interest with respect to any such Security or portion thereof. On presentation
and surrender of such Securities on or after the date fixed for redemption at the place of payment specified in the notice, said
Securities shall be paid and redeemed at the applicable redemption price for such series, together with interest accrued thereon
to the date fixed for redemption (but if the date fixed for redemption is an interest payment date, the interest installment payable
on such date shall be payable to the registered holder at the close of business on the applicable record date pursuant to Section
2.03).
(b) Upon
presentation of any Security of such series that is to be redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Security is presented shall deliver to the holder thereof, at the expense of the
Company, a new Security of the same series of authorized denominations in principal amount equal to the unredeemed portion of the
Security so presented.
Section 3.04 Sinking
Fund.
The provisions of Sections 3.04, 3.05 and 3.06 shall be applicable
to any sinking fund for the retirement of Securities of a series, except as otherwise specified as contemplated by Section 2.01
for Securities of such series.
The minimum amount of any sinking fund payment provided for
by the terms of 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 terms of Securities of any series is herein referred to as an “optional
sinking fund payment”. If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment
may be subject to reduction as provided in Section 3.05. Each sinking fund payment shall be applied to the redemption of Securities
of any series as provided for by the terms of Securities of such series.
Section 3.05 Satisfaction
of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series
and (ii) may apply as a credit Securities of a series that have been redeemed either at the election of the Company pursuant to
the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such
series required to be made pursuant to the terms of such Securities as provided for by the terms of such series, provided that
such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee
at the redemption price specified in such Securities for redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
Section 3.06 Redemption
of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date
for any series of 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 the series, the portion thereof, if any, that is to be satisfied by delivering and crediting Securities of that series pursuant
to Section 3.05 and the basis for such credit and will, together with such Officers’ Certificate, deliver to the Trustee
any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.02 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 3.02. Such notice having
been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 3.03.
ARTICLE 4
COVENANTS
Section 4.01 Payment
of Principal, Premium and Interest.
The Company will duly and punctually pay or cause to be paid
the principal of (and premium, if any) and interest on the Securities of that series at the time and place and in the manner provided
herein and established with respect to such Securities.
Section 4.02 Maintenance
of Office or Agency.
So long as any series of the Securities remain Outstanding,
the Company agrees to maintain an office or agency in the Borough of Manhattan, the City and State of New York, with respect to
each such series and at such other location or locations as may be designated as provided in this Section 4.02, where (i) Securities
of that series may be presented for payment, (ii) Securities of that series may be presented as herein above authorized for registration
of transfer and exchange, and (iii) notices and demands to or upon the Company in respect of the Securities of that series and
this Indenture may be given or served, such designation to continue with respect to such office or agency until the Company shall,
by written notice signed by any officer authorized to sign an Officers’ Certificate and delivered to the Trustee, designate
some other office or agency for such purposes or any of them. 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, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive
all such presentations, notices and demands. The Company initially appoints the Corporate Trust Office of the Trustee located in
the Borough of Manhattan, the City of New York as its paying agent with respect to the Securities.
Section 4.03 Paying
Agents.
(a) If
the Company shall appoint one or more paying agents for all or any series of the Securities, other than the Trustee, the Company
will cause each such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section:
(1) that
it will hold all sums held by it as such agent for the payment of the principal of (and premium, if any) or interest on the Securities
of that series (whether such sums have been paid to it by the Company or by any other obligor of such Securities) in trust for
the benefit of the Persons entitled thereto;
(2) that
it will give the Trustee notice of any failure by the Company (or by any other obligor of such Securities) to make any payment
of the principal of (and premium, if any) or interest on the Securities of that series when the same shall be due and payable;
(3) that
it will, at any time during the continuance of any failure referred to in the preceding paragraph (a)(2) above, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent; and
(4) that
it will perform all other duties of paying agent as set forth in this Indenture.
(b) If
the Company shall act as its own paying agent with respect to any series of the Securities, it will on or before each due date
of the principal of (and premium, if any) or interest on Securities of that series, set aside, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay such principal (and premium, if any) or interest so becoming
due on Securities of that series until such sums shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of such action, or any failure (by it or any other obligor on such Securities) to take such action.
Whenever the Company shall have one or more paying agents for any series of Securities, it will, prior to each due date of the
principal of (and premium, if any) or interest on any Securities of that series, deposit with the 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 this action or failure so to act.
(c) Notwithstanding
anything in this Section to the contrary, (i) the agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 11.05, and (ii) the Company may at any time, for the purpose of obtaining the satisfaction and discharge
of this Indenture or for any other purpose, pay, or 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 terms and conditions as those upon which such sums
were held by the Company or such paying agent; and, upon such payment by the Company or any paying agent to the Trustee, the Company
or such paying agent shall be released from all further liability with respect to such money.
Section 4.04 Appointment
to Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in
the office of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall at all times be a Trustee
hereunder.
Section 4.05 Compliance
with Consolidation Provisions.
The Company will not, while any of the Securities remain Outstanding,
consolidate with or merge into any other Person, in either case where the Company is not the survivor of such transaction, or sell
or convey all or substantially all of its property to any other Person unless the provisions of Article Ten hereof are complied
with.
ARTICLE 5
SECURITYHOLDERS’ LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
Section 5.01 Company
to Furnish Trustee Names and Addresses of Securityholders.
The Company will furnish or cause to be furnished to the Trustee
(a) within 15 days after each regular record date (as defined in Section 2.03) a list, in such form as the Trustee may reasonably
require, of the names and addresses of the holders of each series of Securities as of such regular record date, provided that the
Company shall not be obligated to furnish or cause to furnish such list at any time that the list shall not differ in any respect
from the most recent list furnished to the Trustee by the Company and (b) 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, in either case, no such list need be furnished for any
series for which the Trustee shall be the Security Registrar .
Section 5.02 Preservation
Of Information; Communications With Securityholders.
(a) The
Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the
holders of Securities contained in the most recent list furnished to it as provided in Section 5.01 and as to the names and addresses
of holders of Securities received by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b) The
Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders
may communicate as provided in Section 312(b) of the Trust Indenture Act with other Securityholders with respect to their rights
under this Indenture or under the Securities, and, in connection with any such communications, the Trustee shall satisfy its obligations
under Section 312(b) of the Trust Indenture Act in accordance with the provisions of Section 312(b) of the Trust Indenture Act.
Section 5.03 Reports
by the Company.
The Company covenants and agrees to provide a copy to the Trustee,
after the Company files the same with the Securities and Exchange Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing as the Securities and Exchange Commission may from
time to time by rules and regulations prescribe) that the Company files with the Securities and Exchange Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; provided, however, the Company shall not be required to deliver to the Trustee
any materials for which the Company has sought and received confidential treatment by the SEC. The Company shall also comply with
the requirements of Section 314 of the Trust Indenture Act, but only to the extent then applicable to the Company.
Section 5.04 Reports
by the Trustee.
(a) On
or before July 1 in each year in which any of the Securities are Outstanding, the Trustee shall transmit by mail, first class postage
prepaid, to the Securityholders, as their names and addresses appear upon the Security Register, a brief report dated as of the
preceding May 1, if and to the extent required under Section 313(a) of the Trust Indenture Act.
(b) The
Trustee shall comply with Section 313(b) and 313(c) of the Trust Indenture Act.
(c) A
copy of each such report shall, at the time of such transmission to Securityholders, be filed by the Trustee with the Company,
with each securities exchange upon which any Securities are listed (if so listed) and also with the Securities and Exchange Commission.
The Company agrees to notify the Trustee when any Securities become listed on any securities exchange.
ARTICLE 6
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 6.01 Events
of Default.
(a) Whenever
used herein with respect to Securities of a particular series, “Event of Default” means any one or more of the following
events that has occurred and is continuing:
(1) the
Company defaults in the payment of any installment of interest upon any of the Securities of that series, as and when the same
shall become due and payable, and such default continues for a period of 90 days; provided, however, that a valid extension of
an interest payment period by the Company in accordance with the terms of any indenture supplemental hereto shall not constitute
a default in the payment of interest for this purpose;
(2) the
Company defaults in the payment of the principal of (or premium, if any, on) any of the Securities of that series as and when the
same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required
by any sinking or analogous fund established with respect to that series; provided, however, that a valid extension of the maturity
of such Securities in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment
of principal or premium, if any;
(3) the
Company fails to observe or perform any other of its covenants or agreements with respect to that series contained in this Indenture
or otherwise established with respect to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or agreement
that has been expressly included in this Indenture solely for the benefit of one or more series of Securities other than such series)
for a period of 90 days after the date on which written notice of such failure, requiring the same to be remedied and stating that
such notice is a “Notice of Default” hereunder, shall have been given to the Company by the Trustee, by registered
or certified mail, or to the Company and the Trustee by the holders of at least 25% in principal amount of the Securities of that
series at the time Outstanding;
(4) the
Company pursuant to or within the meaning of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the entry of an
order for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially
all of its property or (iv) makes a general assignment for the benefit of its creditors; or
(5) a
court of competent jurisdiction enters an order under any Bankruptcy Law that (i) is for relief against the Company in an involuntary
case, (ii) appoints a Custodian of the Company for all or substantially all of its property or (iii) orders the liquidation of
the Company, and the order or decree remains unstayed and in effect for 90 days.
(b) In
each and every such case (other than an Event of Default specified in clause (4) or clause (5) above), unless the principal of
all the Securities of that series shall have already become due and payable, either the Trustee or the holders of not less than
25% in aggregate principal amount of the Securities of that series then Outstanding hereunder, by notice in writing to the Company
(and to the Trustee if given by such Securityholders), may declare the principal of (and premium, if any, on) and accrued and unpaid
interest on all the Securities of that series to be due and payable immediately, and upon any such declaration the same shall become
and shall be immediately due and payable. If an Event of Default specified in clause (4) or clause (5) above occurs, the principal
of and accrued and unpaid interest on all the Securities of that series shall automatically be immediately due and payable without
any declaration or other act on the part of the Trustee or the holders of the Securities.
(c) At
any time after the principal of (and premium, if any, on) and accrued and unpaid interest on the Securities of that series shall
have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the holders of a majority in aggregate principal amount of the Securities of that series then
Outstanding hereunder, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences
if: (i) the Company has paid or deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all
the Securities of that series and the principal of (and premium, if any, on) any and all Securities of that series that shall have
become due otherwise than by acceleration (with interest upon such principal and premium, if any, and, to the extent that such
payment is enforceable under applicable law, upon overdue installments of interest, at the rate per annum expressed in the Securities
of that series to the date of such payment or deposit) and the amount payable to the Trustee under Section 7.06, and (ii) any and
all Events of Default under the Indenture with respect to such series, other than the nonpayment of principal on (and premium,
if any, on) and accrued and unpaid interest on Securities of that series that shall not have become due by their terms, shall have
been remedied or waived as provided in Section 6.06.
No such rescission and annulment shall extend to or shall affect
any subsequent default or impair any right consequent thereon.
(d) In
case the Trustee shall have proceeded to enforce any right with respect to Securities of that series under this Indenture and such
proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall
have been determined adversely to the Trustee, then and in every such case, subject to any determination in such proceedings, the
Company and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies
and powers of the Company and the Trustee shall continue as though no such proceedings had been taken.
Section 6.02 Collection
of Indebtedness and Suits for Enforcement by Trustee.
(a) The
Company covenants that (i) in case it shall default in the payment of any installment of interest on any of the Securities of a
series, or in any payment required by any sinking or analogous fund established with respect to that series as and when the same
shall have become due and payable, and such default shall have continued for a period of 90 Business Days, or (ii) in case it shall
default in the payment of the principal of (or premium, if any, on) any of the Securities of a series when the same shall have
become due and payable, whether upon maturity of the Securities of a series or upon redemption or upon declaration or otherwise
then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the holders of the Securities of that
series, the whole amount that then shall have been become due and payable on all such Securities for principal (and premium, if
any) or interest, or both, as the case may be, with interest upon the overdue principal (and premium, if any) and (to the extent
that payment of such interest is enforceable under applicable law) upon overdue installments of interest at the rate per annum
expressed in the Securities of that series; and, in addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, and the amount payable to the Trustee under Section 7.06.
(b) If
the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums
so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment
or final decree against the Company or other obligor upon the Securities of that series and collect the moneys adjudged or decreed
to be payable in the manner provided by law or equity out of the property of the Company or other obligor upon the Securities of
that series, wherever situated.
(c) In
case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial
proceedings affecting the Company, or its creditors or property, the Trustee shall have power to intervene in such proceedings
and take any action therein that may be permitted by the court and shall (except as may be otherwise provided by law) be entitled
to file such proofs of claim and other papers and documents as may be necessary or advisable in order to have the claims of the
Trustee and of the holders of Securities of such series allowed for the entire amount due and payable by the Company under the
Indenture at the date of institution of such proceedings and for any additional amount that may become due and payable by the Company
after such date, and to collect and receive any moneys or other property payable or deliverable on any such claim, and to distribute
the same after the deduction of the amount payable to the Trustee under Section 7.06; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the holders of Securities of such series to make such payments to
the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly to such Securityholders,
to pay to the Trustee any amount due it under Section 7.06.
(d) All
rights of action and of asserting claims under this Indenture, or under any of the terms established with respect to Securities
of that series, may be enforced by the Trustee without the possession of any of such Securities, or the production thereof at any
trial or other proceeding relative thereto, and any such suit or 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 payment to the Trustee of any amounts
due under Section 7.06, be for the ratable benefit of the holders of the Securities of such series.
In case of an Event of Default hereunder, the Trustee may in
its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy
or otherwise, whether for the specific enforcement of any covenant or agreement contained in the Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture
or by law.
Nothing contained herein shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities of that series or the rights of any holder thereof or to authorize the Trustee to vote
in respect of the claim of any Securityholder in any such proceeding.
Section 6.03 Application
of Moneys or Property Collected.
Any moneys or property collected by the Trustee pursuant to
this Article with respect to a particular series of Securities shall be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such moneys or property on account of principal (or premium, if any) or interest,
upon presentation of the Securities of that series, and notation thereon of the payment, if only partially paid, and upon surrender
thereof if fully paid:
FIRST: To the payment of reasonable costs and expenses of collection
and of all amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of all indebtedness of the Company to
which such series of Securities is subordinated to the extent required by Section 7.06 and Article Fourteen;
THIRD: To the payment of the amounts then due and unpaid upon
Securities of such series for principal (and premium, if any) and interest, in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such
Securities for principal (and premium, if any) and interest, respectively; and
FOURTH: To the payment of the remainder, if any, to the Company
or any other Person lawfully entitled thereto, as requested by the Company.
Section 6.04 Limitation
on Suits.
No holder of any Security of any series shall have any right
by virtue or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other remedy hereunder,
unless (i) such holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance
thereof with respect to the Securities of such series specifying such Event of Default, as hereinbefore provided; (ii) the holders
of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder; (iii) such holder or holders
shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby; (iv) the Trustee for 90 days after its receipt of such notice, request and offer of indemnity, shall
have failed to institute any such action, suit or proceeding and (v) during such 90 day period, the holders of a majority in principal
amount of the Securities of that series do not give the Trustee a direction inconsistent with the request.
Notwithstanding anything contained herein to the contrary or
any other provisions of this Indenture, the right of any holder of any Security to receive payment of the principal of (and premium,
if any) and interest on such Security, as therein provided, on or after the respective due dates expressed in such Security (or
in the case of redemption, on the redemption date), or to institute suit for the enforcement of any such payment on or after such
respective dates or redemption date, shall not be impaired or affected without the consent of such holder and by accepting a Security
hereunder it is expressly understood, intended and covenanted by the taker and holder of every Security of such series with every
other such taker and holder and the Trustee, that no one or more holders of Securities of such series shall have any right in any
manner whatsoever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of the
holders of any other of such Securities, or to obtain or seek to obtain priority over or preference to any other such holder, or
to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of
all holders of Securities of such series. For the protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Section 6.05 Rights
and Remedies Cumulative; Delay or Omission Not Waiver.
(a) Except
as otherwise provided in Section 2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders shall,
to the extent permitted by law, be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee
or the holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants
and agreements contained in this Indenture or otherwise established with respect to such Securities.
(b) No
delay or omission of the Trustee or of any holder of any of the Securities to exercise any right or power accruing upon any Event
of Default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of
any such default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by this
Article or by law to the Trustee or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient,
by the Trustee or by the Securityholders.
Section 6.06 Control
by Securityholders.
The holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding, determined in accordance with Section 8.04, 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 such series; provided, however, that such direction shall not be in conflict with any rule of law
or with this Indenture. Subject to the provisions of Section 7.01, 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 officers of the Trustee, determine that the proceeding
so directed, subject to the Trustee’s duties under the Trust Indenture Act, would involve the Trustee in personal liability
or might be unduly prejudicial to the Securityholders not involved in the proceeding. The holders of a majority in aggregate principal
amount of the Securities of any series at the time Outstanding affected thereby, determined in accordance with Section 8.04, may
on behalf of the holders of all of the Securities of such series waive any past default in the performance of any of the covenants
contained herein or established pursuant to Section 2.01 with respect to such series and its consequences, except a default in
the payment of the principal of, or premium, if any, or interest on, any of the Securities of that series as and when the same
shall become due by the terms of such Securities otherwise than by acceleration (unless such default has been cured and a sum sufficient
to pay all matured installments of interest and principal and any premium has been deposited with the Trustee (in accordance with
Section 6.01(c)). Upon any such waiver, the default covered thereby shall be deemed to be cured for all purposes of this Indenture
and the Company, the Trustee and the holders of the Securities of such series shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 6.07 Undertaking
to Pay Costs.
All parties to this Indenture agree, and each holder of any
Securities 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 this Indenture, or in any suit against the Trustee for any action
taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, 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 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder,
or group of Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities of any series, or
to any suit instituted by any Securityholder for the enforcement of the payment of the principal of (or premium, if any) or interest
on any Security of such series, on or after the respective due dates expressed in such Security or established pursuant to this
Indenture.
ARTICLE 7
CONCERNING THE TRUSTEE
Section 7.01 Certain
Duties and Responsibilities of Trustee.
(a) The
Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing of all
Events of Default with respect to the Securities of that series that may have occurred, shall undertake to perform with respect
to the Securities of such series such duties and only such duties as are specifically set forth in this Indenture, and no implied
covenants shall be read into this Indenture against the Trustee. In case an Event of Default with respect to the Securities of
a series has occurred (that has not been cured or waived), the Trustee shall exercise with respect to Securities of that series
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 man would exercise or use under the circumstances in the conduct of his own affairs.
(b) 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) prior
to the occurrence of an Event of Default with respect to the Securities of a series and after the curing or waiving of all such
Events of Default with respect to that series that may have occurred:
(A) the
duties and obligations of the Trustee shall with respect to the Securities of such series be determined solely by the express provisions
of this Indenture, and the Trustee shall not be liable with respect to the Securities of such series except for the performance
of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(B) in
the absence of bad faith on the part of the Trustee, the Trustee may with respect to the Securities of such series conclusively
rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any 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
that by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirement of this Indenture;
(ii) the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, 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 not less than a majority in principal amount of the Securities of any series at the time Outstanding
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 Securities of that series; and
(iv) None
of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise of any of its rights or powers if there is reasonable
ground for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Indenture
or adequate indemnity against such risk is not reasonably assured to it.
Section 7.02 Certain
Rights of Trustee.
Except as otherwise provided in Section 7.01:
(a) The
Trustee may rely conclusively and shall be protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, security or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or parties;
(b) Any
request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or an
instrument signed in the name of the Company by any authorized officer of the Company (unless other evidence in respect thereof
is specifically prescribed herein);
(c) The
Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted hereunder in good faith and in reliance thereon;
(d) The
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that may be incurred therein
or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of
Default with respect to a series of the Securities (that has not been cured or waived), to exercise with respect to Securities
of that series such of the rights and powers vested in it by this Indenture, and to use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;
(e) The
Trustee shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this Indenture;
(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, consent, order, approval, bond, security, or other papers or documents, unless requested
in writing so to do by the holders of not less than a majority in principal amount of the Outstanding Securities of the particular
series affected thereby (determined as provided in Section 8.04); provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such costs, expenses or liabilities as a condition to so proceeding. The reasonable
expense of every such examination shall be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon
demand; and
(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.
In addition, the Trustee shall not be deemed to have knowledge
of any Default or Event of Default except (1) any Event of Default occurring pursuant to Sections 6.01(a)(1), 6.01(a)(2) and 4.01
hereof or (2) any Default or Event of Default of which the Trustee shall have received written notification in the manner set forth
in this Indenture or a Responsible Officer of the Trustee shall have obtained actual knowledge. Delivery of reports, information
and documents to the Trustee under Section 5.03 is for informational purposes only and the information and the Trustee’s
receipt of the foregoing shall not constitute constructive notice of any information contained therein, or determinable from information
contained therein including the Company’s compliance with any of their covenants thereunder (as to which the Trustee is entitled
to rely conclusively on an Officers’ Certificate).
Section 7.03 Trustee
Not Responsible for Recitals or Issuance or Securities.
(a) The
recitals contained herein and in the Securities shall be taken as the statements of the Company, and the Trustee assumes no responsibility
for the correctness of the same.
(b) The
Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities.
(c) The
Trustee shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds of such
Securities, or for the use or application of any moneys paid over by the Trustee in accordance with any provision of this Indenture
or established pursuant to Section 2.01, or for the use or application of any moneys received by any paying agent other than the
Trustee.
Section 7.04 May
Hold Securities.
The Trustee or any paying agent or Security Registrar, in its
individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not
Trustee, paying agent or Security Registrar.
Section 7.05 Moneys
Held in Trust.
Subject to the provisions of Section 11.05, all moneys received
by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest
on any moneys received by it hereunder except such as it may agree with the Company to pay thereon.
Section 7.06 Compensation
and Reimbursement.
(a) The
Company covenants and agrees to pay to the Trustee, and the Trustee shall be entitled to, such reasonable compensation (which shall
not be limited by any provision of law in regard to the compensation of a trustee of an express trust) as the Company and the Trustee
may from time to time agree in writing, for all services rendered by it in the execution of the trusts hereby created and in the
exercise and performance of any of the powers and duties hereunder of the Trustee, and, except as otherwise expressly provided
herein, the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all Persons not regularly in its employ), except any such expense, disbursement
or advance as may arise from its negligence or bad faith and except as the Company and Trustee may from time to time agree in writing.
The Company also covenants to indemnify the Trustee (and its officers, agents, directors and employees) for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad faith on the part of the Trustee and arising out of
or in connection with the acceptance or administration of this trust, including the reasonable costs and expenses of defending
itself against any claim of liability in the premises.
(b) The
obligations of the Company under this Section to compensate and indemnify the Trustee and to pay or reimburse the Trustee for reasonable
expenses, disbursements and advances shall constitute indebtedness of the Company to which the Securities are subordinated. Such
additional indebtedness shall be secured by a lien prior to that of the Securities upon all property and funds held or collected
by the Trustee as such, except funds held in trust for the benefit of the holders of particular Securities.
Section 7.07 Reliance
on Officers’ Certificate.
Except as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it reasonably necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting to take any action hereunder, such matter (unless other evidence
in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee,
be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee and such certificate,
in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted to be taken by it under the provisions of this Indenture upon the faith thereof.
Section 7.08 Disqualification;
Conflicting Interests.
If the Trustee has or shall acquire any “conflicting interest”
within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the Company shall in all respects comply with
the provisions of Section 310(b) of the Trust Indenture Act.
Section 7.09 Corporate
Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to the Securities
issued hereunder which shall at all times be a corporation organized and doing business under the laws of the United States of
America or any state or territory thereof or of the District of Columbia, or a corporation or other Person permitted to act as
trustee by the Securities and Exchange Commission, authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination by federal,
state, territorial, or District of Columbia authority.
If such corporation or other Person 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 or other Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. The Company may not, nor may any Person directly
or indirectly controlling, controlled by, or under common control with the Company, serve as Trustee. In case at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 7.10.
Section 7.10 Resignation
and Removal; Appointment of Successor.
(a) The
Trustee or any successor hereafter appointed may at any time resign with respect to the Securities of one or more series by giving
written notice thereof to the Company and by transmitting notice of resignation by mail, first class postage prepaid, to the Securityholders
of such series, as their names and addresses appear upon the Security Register. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor trustee with respect to Securities of such series by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy
to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within 30 days after
the mailing of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment
of a successor trustee with respect to Securities of such series, or any Securityholder of that series who has been a bona fide
holder of a Security or Securities for at least six months may on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper
and prescribe, appoint a successor trustee.
(b) In
case at any time any one of the following shall occur:
(i) the
Trustee shall fail to comply with the provisions of Section 7.08 after written request therefor by the Company or by any Securityholder
who has been a bona fide holder of a Security or Securities for at least six months; or
(ii) the
Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 and shall fail to resign after written request
therefor by the Company or by any such Securityholder; or
(iii) the
Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding,
or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee with
respect to all Securities and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or
any Securityholder who has been a bona fide holder of a Security or Securities for at least six months may, on behalf of that holder
and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment
of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, remove the Trustee
and appoint a successor trustee.
(c) The
holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any time remove
the Trustee with respect to such series by so notifying the Trustee and the Company and may appoint a successor Trustee for such
series with the consent of the Company.
(d) Any
resignation or removal of the Trustee and appointment of a successor trustee with respect to the Securities of a series pursuant
to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided
in Section 7.11.
(e) Any
successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more series or all
of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.
Section 7.11 Acceptance
of Appointment By Successor.
(a) In
case of the appointment hereunder of a successor trustee with respect to all 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 the
request of the Company or the successor trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver
an instrument transferring to such successor trustee all the rights, powers, and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor trustee all property and money held by such retiring Trustee hereunder.
(b) In
case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor trustee with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor trustee shall accept such appointment and which (i) 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 Securities of that or those series to which the appointment
of such successor trustee relates, (ii) 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 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 (iii) 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, 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 that no Trustee shall be responsible for any act or failure
to act on the part of any other Trustee hereunder; 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, such retiring Trustee shall with respect
to the Securities of that or those series to which the appointment of such successor trustee relates have no further responsibility
for the exercise of rights and powers or for the performance of the duties and obligations vested in the Trustee under this Indenture,
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 Securities of that or those series to which the appointment of such
successor trustee relates; but, on request of the Company or any successor trustee, such retiring Trustee shall duly assign, transfer
and deliver to such successor trustee, to the extent contemplated by such supplemental indenture, the property and money held by
such retiring Trustee hereunder with respect to the 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.
(e) Upon
acceptance of appointment by a successor trustee as provided in this Section, the Company shall transmit notice of the succession
of such trustee hereunder by mail, first class postage prepaid, to the Securityholders, as their names and addresses appear upon
the Security Register. If the Company fails to transmit such notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be transmitted at the expense of the Company.
Section 7.12 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 the corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation shall be qualified under the provisions of Section 7.08 and eligible under the provisions
of Section 7.09, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 7.13 Preferential
Collection of Claims Against the Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or
been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
Section 7.14 Notice
of Default
If any Default or any Event of Default occurs and is continuing
and if such Default or Event of Default is known to a Responsible Officer of the Trustee, the Trustee shall mail to each Securityholder
in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act notice of the Default or Event of Default
within 45 days after it occurs and becomes known to the Trustee, unless such Default or Event of Default has been cured;
provided,
however
, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest on any Security,
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 Responsible Officers of the Trustee in good faith determine that the withholding of such
notice is in the interest of the Securityholders.
ARTICLE 8
CONCERNING THE SECURITYHOLDERS
Section 8.01 Evidence
of Action by Securityholders.
Whenever in this Indenture it is provided that the holders of
a majority or specified percentage in aggregate principal amount of the Securities of a particular series may take any action (including
the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that
at the time of taking any such action the holders of such majority or specified percentage of that series have joined therein may
be evidenced by any instrument or any number of instruments of similar tenor executed by such holders of Securities of that series
in person or by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders of any
series any request, demand, authorization, direction, notice, consent, waiver or other action, the Company may, at its option,
as evidenced by an Officers’ Certificate, fix in advance a record date for such series for the determination of Securityholders
entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company shall
have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver
or other action may be given before or after the record date, but only the Securityholders of record at the close of business on
the record date shall be deemed to be Securityholders for the purposes of determining whether Securityholders of the requisite
proportion of Outstanding Securities of that series have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other action, and for that purpose the Outstanding Securities of that series shall be computed
as of the record date; provided, however, that no such authorization, agreement or consent by such Securityholders on the record
date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six
months after the record date.
Section 8.02 Proof
of Execution by Securityholders.
Subject to the provisions of Section 7.01, proof of the execution
of any instrument by a Securityholder (such proof will not require notarization) or his agent or proxy and proof of the holding
by any Person of any of the Securities shall be sufficient if made in the following manner:
(a) The
fact and date of the execution by any such Person of any instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The
ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security Registrar
thereof.
The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
Section 8.03 Who
May be Deemed Owners.
Prior to the due presentment for registration of transfer of
any Security, the Company, the Trustee, any paying agent and any Security Registrar may deem and treat the Person in whose name
such Security shall be registered upon the books of the Company as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notice of ownership or writing thereon made by anyone other than the Security Registrar)
for the purpose of receiving payment of or on account of the principal of, premium, if any, and (subject to Section 2.03) interest
on such Security and for all other purposes; and neither the Company nor the Trustee nor any paying agent nor any Security Registrar
shall be affected by any notice to the contrary.
Section 8.04 Certain
Securities Owned by Company Disregarded.
In determining whether the holders of the requisite aggregate
principal amount of Securities of a particular series have concurred in any direction, consent or waiver under this Indenture,
the Securities of that series that are owned by the Company or any other obligor on the Securities of that series or by any Person
directly or indirectly controlling or controlled by or under common control with the Company or any other obligor on the Securities
of that series shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that for
the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver, only Securities
of such series that the Trustee actually knows are so owned shall be so disregarded. The Securities so owned that have been pledged
in good faith may be regarded as Outstanding for the purposes of this Section, if the pledgee shall establish to the satisfaction
of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not a Person directly
or indirectly controlling or controlled by or under direct or indirect common control with the Company or any such other obligor.
In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to
the Trustee.
Section 8.05 Actions
Binding on Future Securityholders.
At any time prior to (but not after) the evidencing to the Trustee,
as provided in Section 8.01, of the taking of any action by the holders of the majority or percentage in aggregate principal amount
of the Securities of a particular series specified in this Indenture in connection with such action, any holder of a Security of
that series that is shown by the evidence to be included in the Securities the holders of which have consented to such action may,
by filing written notice with the Trustee, and upon proof of holding as provided in Section 8.02, revoke such action so far as
concerns such Security. Except as aforesaid any such action taken by the holder of any Security shall be conclusive and binding
upon such holder and upon all future holders and owners of such Security, and of any Security issued in exchange therefor, on registration
of transfer thereof or in place thereof, irrespective of whether or not any notation in regard thereto is made upon such Security.
Any action taken by the holders of the majority or percentage in aggregate principal amount of the Securities of a particular series
specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Trustee and the
holders of all the Securities of that series.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental
Indentures Without the Consent of Securityholders.
In addition to any supplemental indenture otherwise authorized
by this Indenture, the Company and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act as then in effect), without the consent of the Securityholders,
for one or more of the following purposes:
(a) to
cure any ambiguity, defect, or inconsistency herein or in the Securities of any series;
(b) to
comply with Article Ten;
(c) to
provide for uncertificated Securities in addition to or in place of certificated Securities and to make all appropriate changes
for such purpose;
(d) to
add to the covenants, restrictions, conditions or provisions relating to the Company for the benefit of the holders of all or any
series of Securities (and if such covenants, restrictions, conditions or provisions are to be for the benefit of less than all
series of Securities, stating that such covenants, restrictions, conditions or provisions are expressly being included solely for
the benefit of such series), to make the occurrence, or the occurrence and the continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an Event of Default, or to surrender any right or power herein conferred upon
the Company;
(e) to
add to, delete from, or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue,
authentication, and delivery of Securities, as herein set forth;
(f) to
make any change that does not adversely affect the rights of any Securityholder in any material respect;
(g) to
provide for the issuance of and establish the form and terms and conditions of the Securities of any series as provided in Section
2.01, to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or any series
of Securities, or to add to the rights of the holders of any series of Securities;
(h) to
evidence and provide for the acceptance of appointment hereunder by a successor trustee; or
(i) to
comply with any requirements of the Securities and Exchange Commission or any successor in connection with the qualification of
this Indenture under the Trust Indenture Act.
The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, and to make any further appropriate agreements and stipulations that may be therein
contained, but the Trustee shall not be obligated to enter into any such supplemental indenture that affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent of the holders of any of the Securities at the time
Outstanding, notwithstanding any of the provisions of Section 9.02.
Section 9.02 Supplemental
Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Section 8.01) of
the holders of not less than a majority in aggregate principal amount of the Securities of each series affected by such supplemental
indenture or indentures at the time Outstanding, the Company, when authorized by a Board Resolution, and the Trustee may from time
to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect) for the purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner not covered by Section 9.01
the rights of the holders of the Securities of such series under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the holders of each Security then Outstanding and affected thereby, (a) extend the fixed maturity
of any Securities of any series, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption thereof or (b) reduce the aforesaid percentage of Securities, the holders
of which are required to consent to any such supplemental indenture.
It shall not be necessary for the consent of the Securityholders
of any series affected thereby under this Section to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such consent shall approve the substance thereof.
Section 9.03 Effect
of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to
the provisions of this Article or of Section 10.01, this Indenture shall, with respect to such series, be and be deemed to be modified
and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under
this Indenture of the Trustee, the Company and the holders of Securities of the series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
Section 9.04 Securities
Affected by Supplemental Indentures.
Securities of any series affected by a supplemental indenture,
authenticated and delivered after the execution of such supplemental indenture pursuant to the provisions of this Article or of
Section 10.01, may bear a notation in form approved by the Company, provided such form meets the requirements of any securities
exchange upon which such series may be listed, as to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of that series so modified as to conform, in the opinion of the Board of Directors, to any modification
of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated by the Trustee and
delivered in exchange for the Securities of that series then Outstanding.
Section 9.05 Execution
of Supplemental Indentures.
Upon the request of the Company, accompanied by its Board Resolutions
authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of
Securityholders required to consent thereto as aforesaid, the Trustee shall join with the Company in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture
or otherwise, in which case the Trustee may in its discretion but shall not be obligated to enter into such supplemental indenture.
The Trustee, subject to the provisions of Section 7.01, will be entitled to receive and will be fully protected in relying upon
an Officers’ Certificate and an Opinion of Counsel stating that any supplemental indenture executed pursuant to this Article
is authorized or permitted by, and conforms to, the terms of this Article and that it is proper for the Trustee under the provisions
of this Article to join in the execution thereof; provided, however, that such Officers’ Certificate or Opinion of Counsel
need not be provided in connection with the execution of a supplemental indenture that establishes the terms of a series of Securities
pursuant to Section 2.01 hereof.
Promptly after the execution by the Company and the Trustee
of any supplemental indenture pursuant to the provisions of this Section, the Trustee shall transmit by mail, first class postage
prepaid, a notice, setting forth in general terms the substance of such supplemental indenture, to the Securityholders of all series
affected thereby as their names and addresses appear upon the Security Register. Any failure of the Trustee to mail such notice,
or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
ARTICLE 10
SUCCESSOR ENTITY
Section 10.01 Company
May Consolidate, Etc.
Except as provided pursuant to Section 2.01 pursuant to a Board
Resolution, and set forth in an Officers’ Certificate, or established in one or more indentures supplemental to this Indenture,
nothing contained in this Indenture shall prevent any consolidation or merger of the Company with or into any other Person (whether
or not affiliated with the Company) or successive consolidations or mergers in which the Company or its successor or successors
shall be a party or parties, or shall prevent any sale, conveyance, transfer or other disposition of the property of the Company
or its successor or successors as an entirety, or substantially as an entirety, to any other corporation (whether or not affiliated
with the Company or its successor or successors) authorized to acquire and operate the same; provided, however, the Company hereby
covenants and agrees that, upon any such consolidation or merger (in each case, if the Company is not the survivor of such transaction),
sale, conveyance, transfer or other disposition, the due and punctual payment of the principal of (premium, if any) and interest
on all of the Securities of all series in accordance with the terms of each series, according to their tenor, and the due and punctual
performance and observance of all the covenants and conditions of this Indenture with respect to each series or established with
respect to such series pursuant to Section 2.01 to be kept or performed by the Company shall be expressly assumed, by supplemental
indenture (which shall conform to the provisions of the Trust Indenture Act, as then in effect) reasonably satisfactory in form
to the Trustee executed and delivered to the Trustee by the entity formed by such consolidation, or into which the Company shall
have been merged, or by the entity which shall have acquired such property.
Section 10.02 Successor
Entity Substituted.
(a) In
case of any such consolidation, merger, sale, conveyance, transfer or other disposition and upon the assumption by the successor
entity by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the obligations
set forth under Section 10.01 on all of the Securities of all series Outstanding, such successor entity shall succeed to and be
substituted for the Company with the same effect as if it had been named as the Company herein, and thereupon the predecessor corporation
shall be relieved of all obligations and covenants under this Indenture and the Securities.
(b) In
case of any such consolidation, merger, sale, conveyance, transfer or other disposition, such changes in phraseology and form (but
not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
(c) Nothing
contained in this Article shall require any action by the Company in the case of a consolidation or merger of any Person into the
Company where the Company is the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise, of
all or any part of the property of any other Person (whether or not affiliated with the Company).
Section 10.03 Evidence
of Consolidation, Etc. to Trustee.
The Trustee, subject to the provisions of Section 7.01, may
receive an Officers’ Certificate or an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale,
conveyance, transfer or other disposition, and any such assumption, comply with the provisions of this Article.
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction
and Discharge of Indenture.
If at any time: (a) the Company shall have delivered to the
Trustee for cancellation all Securities of a series theretofore authenticated and not delivered to the Trustee for cancellation
(other than any Securities that shall have been destroyed, lost or stolen and that shall have been replaced or paid as provided
in Section 2.07 and Securities for whose payment money or Governmental Obligations have theretofore been deposited in trust or
segregated and held in trust by the Company and thereupon repaid to the Company or discharged from such trust, as provided in Section
11.05); or (b) all such Securities of a particular series not theretofore delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company shall deposit or
cause to be deposited with the Trustee as trust funds the entire amount in moneys or Governmental Obligations or a combination
thereof, sufficient in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay at maturity or upon redemption all Securities of that series not theretofore delivered
to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such date of maturity
or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable
hereunder with respect to such series by the Company then this Indenture shall thereupon cease to be of further effect with respect
to such series except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall survive until the
date of maturity or redemption date, as the case may be, and Sections 7.06 and 11.05, that shall survive to such date and thereafter,
and the Trustee, on demand of the Company and at the cost and expense of the Company shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to such series.
Section 11.02 Discharge
of Obligations.
If at any time all such Securities of a particular series not
heretofore delivered to the Trustee for cancellation or that have not become due and payable as described in Section 11.01 shall
have been paid by the Company by depositing irrevocably with the Trustee as trust funds moneys or an amount of Governmental Obligations
sufficient to pay at maturity or upon redemption all such Securities of that series not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and interest due or to become due to such date of maturity or date fixed
for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable hereunder by the
Company with respect to such series, then after the date such moneys or Governmental Obligations, as the case may be, are deposited
with the Trustee the obligations of the Company under this Indenture with respect to such series shall cease to be of further effect
except for the provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02, 4,03, 7.05, 7.10 and 11.05 hereof that shall survive until
such Securities shall mature and be paid.
Thereafter, Sections 7.06 and 11.05 shall survive.
Section 11.03 Deposited
Moneys to be Held in Trust.
All moneys or Governmental Obligations deposited with the Trustee
pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be available for payment as due, either directly or through
any paying agent (including the Company acting as its own paying agent), to the holders of the particular series of Securities
for the payment or redemption of which such moneys or Governmental Obligations have been deposited with the Trustee.
Section 11.04 Payment
of Moneys Held by Paying Agents.
In connection with the satisfaction and discharge of this Indenture
all moneys or Governmental Obligations then held by any paying agent under the provisions of this Indenture shall, upon demand
of the Company, be paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect
to such moneys or Governmental Obligations.
Section 11.05 Repayment
to Company.
Any moneys or Governmental Obligations deposited with any paying
agent or the Trustee, or then held by the Company, in trust for payment of principal of or premium, if any, or interest on the
Securities of a particular series that are not applied but remain unclaimed by the holders of such Securities for at least two
years after the date upon which the principal of (and premium, if any) or interest on such Securities shall have respectively become
due and payable, or such other shorter period set forth in applicable escheat or abandoned or unclaimed property law, shall be
repaid to the Company on May 31 of each year or upon the Company’s request or (if then held by the Company) shall be discharged
from such trust; and thereupon the paying agent and the Trustee shall be released from all further liability with respect to such
moneys or Governmental Obligations, and the holder of any of the Securities entitled to receive such payment shall thereafter,
as a general creditor, look only to the Company for the payment thereof.
ARTICLE 12
IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS
Section 12.01 No
Recourse.
No recourse under or upon any obligation, covenant or agreement
of this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall be had against any
incorporator, shareholder, officer or director, past, present or future as such, of the Company or of any predecessor or successor
corporation, either directly or through the Company or any such predecessor or successor corporation, 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, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators, shareholders, officers or directors as such, of the
Company or of any predecessor or 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 Securities or implied
therefrom; and that any and all such personal liability of every name and nature, 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, shareholder, 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 Securities 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 issuance of such Securities.
ARTICLE 13
MISCELLANEOUS PROVISIONS
Section 13.01 Effect
on Successors and Assigns.
All the covenants, stipulations, promises and agreements in
this Indenture made by or on behalf of the Company shall bind its successors and assigns, whether so expressed or not.
Section 13.02 Actions
by Successor.
Any act or proceeding by any provision of this Indenture authorized
or required to be done or performed by any board, committee or officer of the Company shall and may be done and performed with
like force and effect by the corresponding board, committee or officer of any corporation that shall at the time be the lawful
successor of the Company.
Section 13.03 Surrender
of Company Powers.
The Company by instrument in writing executed by authority of
its Board of Directors and delivered to the Trustee may surrender any of the powers reserved to the Company, and thereupon such
power so surrendered shall terminate both as to the Company and as to any successor corporation.
Section 13.04 Notices.
Except as otherwise expressly provided herein, any notice, request
or demand that by any provision of this Indenture is required or permitted to be given, made or served by the Trustee or by the
holders of Securities or by any other Person pursuant to this Indenture to or on the Company may be given or served by being deposited
in first class mail, postage prepaid, addressed (until another address is filed in writing by the Company with the Trustee), as
follows: C T Corporation System, 111 Eighth Avenue, New York, New York 10011, with a copy to Loeb & Loeb, LLP, 345 Park Avenue,
New York, New York 10154, Attn: Mitchell S. Nussbaum, Esq. Any notice, election, request or demand by the Company or any Securityholder
or by any other Person pursuant to this Indenture to or upon the Trustee shall be deemed to have been sufficiently given or made,
for all purposes, if given or made in writing at the Corporate Trust Office of the Trustee.
Section 13.05 Governing
Law.
This Indenture and each Security shall be deemed to be a contract
made under the internal laws of the State of New York, and for all purposes shall be construed in accordance with the laws of said
State, except to the extent that the Trust Indenture Act is applicable.
Section 13.06 Treatment
of Securities as Debt.
It is intended that the Securities will be treated as indebtedness
and not as equity for federal income tax purposes. The provisions of this Indenture shall be interpreted to further this intention.
Section 13.07 Certificates
and Opinions as to Conditions Precedent.
(a) Upon
any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company
shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent provided for in this Indenture
(other than the certificate to be delivered pursuant to Section 13.13) 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 have been complied with, except
that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.
(b) Each
certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition
or covenant in this Indenture shall include (i) a statement that the Person making such certificate or opinion has read such covenant
or condition; (ii) 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; (iii) a statement that, in the opinion of such Person, he has made
such examination or investigation as is reasonably necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and (iv) a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been complied with.
Section 13.08 Payments
on Business Days.
Except as provided pursuant to Section 2.01 pursuant to a Board
Resolution, and set forth in an Officers’ Certificate, or established in one or more indentures supplemental to this Indenture,
in any case where the date of maturity of interest or principal of any Security or the date of redemption of any Security shall
not be a Business Day, then payment of interest or principal (and premium, if any) may be made on the next succeeding Business
Day with the same force and effect as if made on the nominal date of maturity or redemption, and no interest shall accrue for the
period after such nominal date.
Section 13.09 Conflict
with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
Section 13.10 Indenture
and Securities Solely Corporate Obligations.
No recourse for the payment of the principal of, premium, if
any, or interest on any Securities, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon
any obligation, covenant or agreement of the Company in this Indenture or in any supplemental indenture or in any Security, or
because of the creation of any indebtedness represented thereby, shall be had against any incorporator, shareholder, employee,
agent, officer, director or subsidiary, as such, past, present or future, of the Company or of any successor entity, either directly
or through the Company or any successor entity, 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 all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this Indenture and the issuance of the Securities.
Section 13.11 Counterparts.
This Indenture may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
Section 13.12 Separability.
In case any one or more of the provisions contained in this
Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such Securities,
but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision had never been
contained herein or therein.
Section 13.13 Compliance
Certificates.
The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year during which any Securities of any series were outstanding, a compliance certificate stating whether
or not the signer knows of any Default or Event of Default that occurred during such fiscal year. Such certificate shall contain
a certification from the principal executive officer, principal financial officer or principal accounting officer of the Company
that a review has been conducted of the activities of the Company and the Company’s performance under this Indenture and
that the Company has complied with all conditions and covenants under this Indenture. For purposes of this Section 13.13, such
compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture. If
the officer of the Company signing such certificate has knowledge of such a Default or Event of Default, the certificate shall
describe any such Default or Event of Default and its status.
ARTICLE 14
SUBORDINATION OF SECURITIES
Section 14.01 Agreement of Subordination.
The Company covenants and agrees, and each
holder of Securities issued hereunder by his acceptance thereof likewise covenants and agrees, that all Securities shall be issued
subject to the provisions of this Article 14; and each Securityholder, whether upon original issue or upon transfer or assignment
thereof, accepts and agrees to be bound by such provisions.
The payment of the principal of, premium,
if any, and interest on all Securities issued hereunder shall, to the extent and in the manner hereinafter set forth, be subordinated
and subject in right of payment to the prior payment in full of all Senior Indebtedness of the Company, whether outstanding at
the date of this Indenture or thereafter incurred.
The provisions of this Article 14 define the
subordination of the Securities, as obligations of the Company, with respect to Senior Indebtedness of the Company.
No provision of this Article 14 shall prevent
the occurrence of any default or Event of Default hereunder.
Section 14.02 Payments to Securityholders.
In the event and during the continuation of
any default in the payment of principal, premium, interest or any other payment due on any Senior Indebtedness of the Company continuing
beyond the period of grace, if any, specified in the instrument or lease evidencing such Senior Indebtedness of the Company, then,
unless and until such default shall have been cured or waived or shall have ceased to exist, no payment shall be made by the Company
with respect to the principal of, or premium, if any, or interest on the Securities, except payments made pursuant to Article 11
hereof from monies deposited with the Trustee pursuant thereto prior to the happening of such default.
Upon any payment by the Company, or distribution
of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or
winding-up or liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership
or other proceedings, all amounts due or to become due upon all Senior Indebtedness of the Company shall first be paid in full,
or payment thereof provided for in money in accordance with its terms, before any payment is made on account of the principal (and
premium, if any) or interest on the Securities (except payments made pursuant to Article 8 hereof from monies deposited with the
Trustee pursuant thereto prior to the happening of such dissolution, winding-up, liquidation or reorganization); and upon any such
dissolution or winding-up or liquidation or reorganization any payment by the Company, or distribution of assets of the Company
of any kind or character, whether in cash, property or securities, to which the holders of the Securities or the Trustee would
be entitled, except for the provisions of this Article 14, shall (except as aforesaid) be paid by the Company or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the holders of the
Securities or by the Trustee under this Indenture if received by them or it, directly to the holders of Senior Indebtedness of
the Company (pro rata to such holders on the basis of the respective amounts of Senior Indebtedness of the Company held by such
holders, as calculated by the Company) or their representative or representatives, or to the trustee or trustees under any indenture
pursuant to which any instruments evidencing any Senior Indebtedness of the Company may have been issued, as their respective interests
may appear, to the extent necessary to pay all Senior Indebtedness of the Company in full, in money or money’s worth, after
giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness of the Company, before any
payment or distribution is made to the holders of the Securities or to the Trustee.
In the event that, notwithstanding the foregoing,
any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, prohibited
by the foregoing, shall be received by the Trustee or the holders of the Securities before all Senior Indebtedness of the Company
is paid in full, or provision is made for such payment in money in accordance with its terms, such payment or distribution shall
be held in trust for the benefit of and shall be paid over or delivered to the holders of Senior Indebtedness of the Company or
their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing
any Senior Indebtedness of the Company may have been issued, as their respective interests may appear, as calculated by the Company,
for application to the payment of all Senior Indebtedness of the Company remaining unpaid to the extent necessary to pay all Senior
Indebtedness of the Company in full in money in accordance with its terms, after giving effect to any concurrent payment or distribution
to or for the holders of such Senior Indebtedness.
For purposes of this Article 14, the words,
“cash, property or securities” shall not be deemed to include shares of stock of the Company as reorganized or readjusted,
or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment, the payment of
which is subordinated at least to the extent provided in this Article 14 with respect to the Securities to the payment of all Senior
Indebtedness of the Company which may at the time be outstanding; provided that (i) the Senior Indebtedness of the Company is assumed
by the new corporation, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of the
Senior Indebtedness of the Company (other than leases) and of leases which are assumed are not, without the consent of such holders,
altered by such reorganization or readjustment. The consolidation of the Company with, or the merger of the Company into, another
corporation or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety,
or substantially as an entirety, to another corporation upon the terms and conditions provided for in Article 5 hereof shall not
be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 14.02 if such other corporation
shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article 10 hereof.
Nothing in this Section 14.02 shall apply to claims of, or payments to, the Trustee under or pursuant to Article 7.
Section 14.03 Subrogation of Securities.
Subject to the payment in full of all Senior
Indebtedness of the Company, the rights of the holders of the Securities shall be subrogated to the rights of the holders of Senior
Indebtedness of the Company to receive payments or distributions of cash, property or securities of the Company applicable to the
Senior Indebtedness of the Company until the principal of (and premium, if any) and interest on the Securities shall be paid in
full; and, for the purposes of such subrogation, no payments or distributions to the holders of the Senior Indebtedness of the
Company of any cash, property or securities to which the holders of the Securities or the Trustee would be entitled except for
the provisions of this Article 14 to or for the benefit of the holders of Senior Indebtedness of the Company by holders of the
Securities or the Trustee, shall, as between the Company, its creditors other than holders of Senior Indebtedness of the Company,
and the holders of the Securities, be deemed to be a payment by the Company to or on account of the Senior Indebtedness of the
Company. It is understood that the provisions of this Article 14 are and are intended solely for the purpose of defining the relative
rights of the holders of the Securities, on the one hand, and the holders of the Senior Indebtedness of the Company, on the other
hand.
Nothing contained in this Article 14 or elsewhere
in this Indenture or in the Securities is intended to or shall impair, as between the Company, its creditors other than the holders
of its Senior Indebtedness, and the holders of the Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the holders of the Securities the principal of (and premium, if any) and interest on the Securities as and when the same
shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the holders
of the Securities and creditors of the Company other than the holders of its Senior Indebtedness, nor shall anything herein or
therein prevent the Trustee or the holder of any Security from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article 14 of the holders of Senior Indebtedness of the
Company in respect of cash, property or securities of the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets
of the Company referred to in this Article 14, the Trustee, subject to the provisions of Article 7, and the holders of the Securities
shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which such dissolution, winding-up,
liquidation or reorganization proceedings are pending, or a certificate of the receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, delivered to the Trustee or to the holders of the Securities, for the
purpose of ascertaining the Persons entitled to participate in such distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article 14.
Section 14.04 Authorization by Securityholders.
Each holder of a Security by his acceptance
thereof authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article 14 appoints the Trustee his attorney-in-fact for any and all such purposes.
Section 14.05 Notice to Trustee.
The Company shall give promptly written notice
to the Trustee of any fact known to the Company which would prohibit the making of any payment of monies to or by the Trustee in
respect of the Securities pursuant to the provisions of this Article 14. Notwithstanding the provisions of this Article 14 or any
other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts which would prohibit
the making of any payment of monies to or by the Trustee in respect of the Securities pursuant to the provisions of this Article
14, unless and until the Trustee shall have received written notice thereof in accordance with Section 13.07 from the Company or
a holder or holders of Senior Indebtedness of the Company or from any trustee therefor; and before the receipt of any such written
notice, the Trustee, subject to the provisions of Article 7, shall be entitled in all respects to assume that no such facts exist;
provided that if on a date not fewer than three Business Days prior to the date upon which by the terms hereof any such monies
may become payable for any purpose (including, without limitation, the payment of the principal of (or premium, if any) or interest
on any Security) the Trustee shall not have received, with respect to such monies, the notice provided for in this Section 14.05,
then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such
monies and to apply the same to the purpose for which they were received, and shall not be affected by any notice to the contrary
which may be received by it on or after such prior date. Notwithstanding anything to the contrary hereinbefore set forth, nothing
shall prevent any payment by the Company or the Trustee to the Securityholders of monies in connection with a redemption of Securities
if (i) notice of such redemption has been given in accordance herewith prior to the receipt by the Trustee of written notice as
aforesaid, and (ii) such notice of redemption is given not earlier than 60 days before the redemption date.
The Trustee conclusively shall be entitled
to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness of the
Company (or a trustee on behalf of such holder) to establish that such notice has been given by a holder of Senior Indebtedness
of the Company or a trustee on behalf of any such holder or holders. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness of the Company to participate
in any payment or distribution pursuant to this Article 14, the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness of the Company held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under
this Article 14, and if such evidence is not furnished the Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
Section 14.06 Trustee’s Relation
to Senior Indebtedness.
The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article 14 in respect of any Senior Indebtedness of the Company at any time held
by it, to the same extent as any other holder of Senior Indebtedness of the Company and nothing elsewhere in this Indenture shall
deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness
of the Company, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically
set forth in this Article 14, and no implied covenants or obligations with respect to the holders of Senior Indebtedness of the
Company shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness of the Company and the Trustee shall not be liable to any holder of Senior Indebtedness of the Company
if it shall pay over or deliver to holders of Securities, the Company or any other Person money or assets to which any holder of
Senior Indebtedness of the Company shall be entitled by virtue of this Article 14 or otherwise.
Section 14.07 No Impairment of Subordination.
No right of any present or future holder of
any Senior Indebtedness of the Company to enforce subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof which any such holder may have or otherwise be charged with.
Section 14.08 Rights of Trustee.
Nothing in this Article 14 shall apply to
claims of, or payments to, the Trustee pursuant to Article 7.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed all as of the day and year first above written.
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AMBOW EDUCATION HOLDING LTD.
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By:
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Name:
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Title:
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[TRUSTEE],
as Trustee
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By:
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Name:
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Title:
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CROSS-REFERENCE TABLE (1)
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Section of Trust Indenture Act Of 1939, as Amended
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Section of Indenture
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310(a)
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7.09
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310(b)
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7.08
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7.10
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310(c)
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Inapplicable
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311(a)
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7.13
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311(b)
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7.13
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311(c)
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Inapplicable
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312(a)
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5.01
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5.02(a)
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312(b)
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5.02(c)
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312(c)
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5.02(c)
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313(a)
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5.04(a)
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313(b)
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5.04(b)
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313(c)
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5.04(a)
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5.04(b)
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313(d)
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5.04(c)
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314(a)
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5.03
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13.12
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314(b)
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Inapplicable
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314(c)
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13.07(a)
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314(d)
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Inapplicable
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314(e)
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13.07(b)
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314(f)
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Inapplicable
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Section of Trust Indenture Act Of 1939, as Amended
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Section of Indenture
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315(a)
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7.01(a)
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7.01(b)
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315(b)
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7.14
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315(c)
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7.01
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315(d)
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7.01(b)
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315(e)
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6.07
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316(a)
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6.06
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8.04
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316(b)
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6.04
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316(c)
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8.01
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317(a)
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6.02
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317(b)
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4.03
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318(a)
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13.09
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(1)
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This Cross-Reference Table does not constitute part of
the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions.
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Exhibit 5.1
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8 May 2019
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Our Ref: DW/THTW/A5122-H15134
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Ambow Education Holding Ltd.
12th Floor, No 1 Financial Street
Chang An Center
Shijingshan District
Beijing, 100043
People’s Republic of China
Dear Sir or Madam
AMBOW EDUCATION HOLDING LTD.
We have acted as Cayman Islands legal advisers
to Ambow Education Holding Ltd. (the “
Company
”) in connection with the registration for issuance and sale from
time to time, on a delayed basis, by the Company of (i) Class A ordinary shares, par value US$0.003 per share (“
Ordinary
Shares
”), including Ordinary Shares represented by American Depositary Shares (“
ADSs
”), each ADS representing
two Ordinary Shares, (ii) preferred shares, par value US$0.003 per share (“
Preferred Shares
”, and together with
the Ordinary Shares and ADSs, “
Equity Securities
”) (iv) debt securities of the Company (”
Debt Securities
”),
in one or more series, (v) warrants to purchase Equity Securities or Debt Securities (“
Warrants
”), (vi) subscription
rights to purchase Equity Securities or Debt Securities (“
Rights
”) (vi) and/or (vii) units consisting of one
or more of the foregoing (“
Units”
), in each case as contemplated by the Form F-3 Registration Statement (“
Registration
Statement
”), filed by the Company under the U.S. Securities Act of 1933, as amended with the U.S. Securities and Exchange
Commission (the "
Commission
") on or about 8 May 2019. The Ordinary Shares, Preferred Shares, Debt Securities,
Warrants, Rights and Units being registered are for a maximum aggregate offering price of US$100,000,000.00. We are furnishing
this opinion as exhibit 5.1 to the Registration Statement.
For the purposes of giving this opinion,
we have examined and relied upon the originals, copies or translations of the documents listed in Schedule 1.
In giving this opinion we have relied upon
the assumptions set out in Schedule 2, which we have not independently verified.
We are Cayman Islands Attorneys at Law
and express no opinion as to any laws other than the laws of the Cayman Islands in force and as interpreted at the date of this
opinion. We have not, for the purposes of this opinion, made any investigation of the laws, rules or regulations of any other jurisdiction.
Except as explicitly stated herein, we express no opinion in relation to any representation or warranty contained in any of the
documents cited in this Opinion nor upon matters of fact or the commercial terms of the transactions the subject of this Opinion.
Based upon the foregoing examinations and
assumptions and upon such searches as we have conducted and having regard to legal considerations which we consider relevant, and
subject to the qualifications set out in Schedule 3, and under the laws of the Cayman Islands, we give the following opinion in
relation to the matters set out below.
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1.
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With respect to Ordinary Shares and Preferred Shares, when (a) the Board of Directors of the Company
(the “
Board
”) has taken all necessary corporate action to approve the issuance thereof, the terms of the offering
thereof and related matters; (b) the provisions of the applicable definitive purchase, underwriting or similar agreement approved
by the Board have been satisfied and payment of the consideration specified therein (being not less than their par value) has been
made; and (c) valid book-entry notations are made in the register of members of the Company, then such Ordinary Shares or Preferred
Shares, as the case may be, will have been duly authorised and validly issued, fully paid and non-assessable (meaning that no additional
sums may be levied on the holder thereof by the Company).
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We hereby consent to the use of this opinion
in, and the filing hereof, as an exhibit to the Registration Statement and to the reference to our firm under the headings “Legal
Matters” and "Description of Shares and Governing Documents" in the prospectus included in the Registration Statement.
In giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under Section
7 of the U.S. Securities Act of 1933, as amended, or the Rules and Regulations of the Commission thereunder.
This opinion is limited to the matters
referred to herein and shall not be construed as extending to any other matter or document not referred to herein.
This opinion shall be construed in accordance
with the laws of the Cayman Islands.
Yours faithfully
Walkers (hong kong)
Schedule
1
LIST OF DOCUMENTS EXAMINED
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1.
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The Certificate of Incorporation dated 22 June 2007, Sixth Amended and Restated Memorandum and
Articles of Association as adopted on 30 June 2015 (the "
Memorandum and Articles
"), the Register of Members and
Register of Directors of the Company, copies of which have been provided to us by its registered office in the Cayman Islands (together
the "
Company Records
").
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2.
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A Certificate of Good Standing dated 24 April 2019 in respect of the Company issued by the Registrar
(the "
Certificate of Good Standing
").
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3.
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Copies of executed written resolutions of the Board of Directors of the Company dated 18 May 2018,
and certified true extract of the executed written resolutions of the Board of Directors of the Company passed on 3 May 2019 dated
8 May 2019, setting out the resolutions relating to the Registration Statement (the "
Resolutions
").
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4.
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A certificate from a director of the Company dated 8 May 2019, a copy of which is attached hereto
(the "
Director's Certificate
").
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5.
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The Company's draft registration statement on Form F-3 filed by the Company with the United States
Securities and Exchange Commission on or about 6 May 2019.
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Schedule
2
ASSUMPTIONS
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1.
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All authorisations, approvals, consents, licences and exemptions required by, and all filings and
other steps required of each of the parties to or in connection with the documents outside the Cayman Islands to ensure the legality,
validity and enforceability of the Documents have been or will be duly obtained, made or fulfilled and are and will remain in full
force and effect and any conditions to which they are subject have been satisfied.
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2.
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The resolutions authorising the issuance of the Equity Securities, Debt Securities, Warrants, Rights
and Units are and shall remain in full force and effect and have not been and will not be rescinded or amended.
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3.
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The originals of all documents examined in connection with this opinion are authentic. The documents
conform in every material respect to the latest draft of the same produced to us and, where provided in successive drafts, have
been marked up to indicate all changes to such documents.
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4.
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The Registration Statement and the documents or agreements referred to therein have been or will
be duly authorised, executed and delivered by or on behalf of all relevant parties prior to the issue and sale of the Equity Securities,
Debt Securities, Warrants, Rights and Units and will be legal, valid, binding and enforceable against all relevant parties in accordance
with their terms.
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5.
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We have relied upon the statements and representations of directors, officers and other representatives
of the Company as to factual matters.
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6.
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On the date of issue of the Ordinary Shares and Preferred Shares the Company shall have sufficient
authorised but unissued share capital available.
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7.
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The Resolutions have been duly executed (and where by a corporate entity such execution has been
duly authorised if so required) by or on behalf of each Director and the signatures and initials thereon are those of a person
or persons in whose name the Resolutions have been expressed to be signed.
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8.
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The Company has received, or will on issue of the relevant Equity Securities, Debt Securities,
Warrants, Rights and Units receive, consideration in money or money’s worth for each share when issued, such consideration
in any event not being less than the stated par or nominal value of each share.
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9.
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The Company has, or will on issue of the relevant Ordinary Shares and Preferred Shares have, issued
and sold the shares in the manner contemplated by the Registration Statement and the documents or agreements referred to therein
and otherwise in compliance with all applicable laws.
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10.
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There is nothing under any law (other than the laws of the Cayman Islands) which would or might
affect any of the opinions set forth herein.
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Schedule
3
QUALIFICATIONS
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1.
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Our opinion as to good standing is based solely upon receipt of the Certificate of Good Standing
issued by the Registrar. The Company shall be deemed to be in good standing under section 200A of the Companies Law on the date
of issue of the certificate if all fees and penalties under the Companies Law have been paid and the Registrar has no knowledge
that the Company is in default under the Companies Law.
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2.
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We accept no responsibility for any liability in relation to any opinion which was given in reliance
on the Director's Certificate.
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Exhibit 5.2
|
Loeb
& Loeb LLP
345 Park Avenue
New York, NY 10154
|
Main
Fax
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212.407.4000
212.407.4990
|
May 8, 2019
Ambow Education Holding Ltd.
12th Floor, Tower 1, Financial Street,
Chang’an Center, Shijingshan District, Beijing
100043
People’s Republic of China
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Re:
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Registration Statement on Form F-3
|
Ladies and Gentlemen:
We have acted as securities counsel for
Ambow Education Holding Ltd., a Cayman Islands company (the “Company”), in connection with the preparation and filing
by the Company of a registration statement on Form F-3 (including the Offering Prospectus constituting part thereof (the “Prospectus”))
to which this opinion letter has been filed as an exhibit (the “Registration Statement”), relating to the offer and
sale by the Company from time to time, pursuant to Rule 415 under the Securities Act of 1933, as amended (the “Securities
Act”), of (i) Class A ordinary shares, par value $0.003 per share (the “Ordinary Shares”), including Ordinary
Shares represented by American Depositary Shares (“ADSs”), each ADS representing two Ordinary Shares, (ii) preferred
shares, par value $0.003 per share (“Preferred Shares”, and together with the Ordinary Shares and ADSs, “Equity
Securities”) (ii) debt securities of the Company (the “Debt Securities”), in one or more series, (iii) warrants
to purchase Equity Securities or Debt Securities (the “Warrants”), (iv) subscription rights to purchase Equity Securities
or Debt Securities (the “Rights”), and (v) units consisting of one or more of the foregoing (the “Units”).
The Ordinary Shares, Preferred Shares, Debt Securities, Warrants, Rights and Units are collectively referred to herein as the “Securities.”
The Securities being registered for sale by the Company are for a maximum aggregate offering price of $100,000,000. Such Securities
may be offered and sold from time to time pursuant to Rule 415 under the Securities Act, at which time it is contemplated that
the Offering Prospectus included in the Registration Statement will be supplemented by one or more supplements (each, a “Prospectus
Supplement”).
In rendering our opinions set forth below,
we have reviewed such corporate documents and records of the Company, such certificates of public officials and such other matters
as we have deemed necessary or appropriate for purposes of this opinion letter. As to facts material to the opinions expressed
herein, we have relied upon oral and written statements and representations of officers and other representatives of the Company.
We also have assumed (a) the authenticity of all documents submitted to us as originals; (b) the conformity to the originals of
all documents submitted to us as copies; (c) the genuineness of all signatures; (d) the legal capacity of natural persons; (e)
the truth, accuracy and completeness of the information, factual matters, representations and warranties contained in all of such
documents, (f) the Company’s due organization and valid existence, in good standing, under the laws of the Cayman Islands;
and (g) the Company’s legal power and authority to execute, deliver, and perform its obligations under the Securities.
|
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Ambow Education Holding Ltd.
May 8, 2019
Page
2
|
Based upon such examination, and subject
to the further assumptions, qualifications and limitations contained herein, it is our opinion that:
1. The Debt Securities, upon issuance and
delivery of certificates of indebtedness or notes (or book-entry notation if uncertificated) evidencing such Debt Securities, against
payment therefor of such lawful consideration as the Board of Directors of the Company (the “Board”) (or a duly authorized
committee thereof) may determine, will be validly issued and will constitute valid and legally binding obligations of the Company.
2. The Warrants, upon their issuance and
delivery of certificates (or book-entry notation if uncertificated) for such Warrants, against payment therefor of such lawful
consideration as the Board (or a duly authorized committee thereof) may determine, will be validly issued and will constitute valid
and legally binding obligations of the Company.
3. The Rights, upon their issuance and delivery
of certificates (or book-entry notation if uncertificated) for such Rights, against payment therefor of such lawful consideration
as the Board (or a duly authorized committee thereof) may determine, will be validly issued and will constitute valid and legally
binding obligations of the Company.
4. The Units, upon their issuance and delivery
of certificates (or book-entry notation if uncertificated) for such Units, against payment therefor of such lawful consideration
as the Board (or a duly authorized committee thereof) may determine, to the extent such Units constitute or include Debt Securities,
Warrants or Rights, will be validly issued and will constitute valid and legally binding obligations of the Company.
In rendering the foregoing opinions, we
have assumed that: (i) the Registration Statement, and any amendments thereto, shall have become effective under the Securities
Act and will remain effective at the time of issuance of any Securities thereunder; (ii) a Prospectus Supplement describing each
class or series of Securities offered pursuant to the Registration Statement, to the extent required by applicable law and relevant
rules and regulations of the Securities and Exchange Commission (the “Commission”), will be timely filed with the Commission;
(iii) the definitive terms of each class or series of Securities shall have been established in accordance with resolutions duly
adopted by the Board (or an authorized committee thereof) (each, a “Board Action”), the Company’s Amended and
Restated Memorandum and Articles, (the “Articles”) and applicable law; (iv) the Company will issue and deliver the
Securities in the manner contemplated by the Registration Statement, the Prospectus, the applicable Prospectus Supplement and any
applicable underwriting agreement; (v) the total number of shares of Ordinary Shares issuable (including upon conversion, exchange
or exercise of any other Security) will not exceed the total number of shares of Ordinary Shares that the Company is then authorized
to issue under its Articles; (vi) the Board Action authorizing the Company to issue, offer and sell the Securities will have been
adopted by the Board (or an authorized committee thereof) and will be in full force and effect at all times at which the Securities
are offered or sold by the Company; and (vii) all Securities will be issued in compliance with applicable federal and state securities
laws.
|
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Ambow Education Holding Ltd.
May 8, 2019
Page 3
|
With respect to any Securities consisting
of Debt Securities, we have further assumed that: (i) such Debt Securities shall have been issued pursuant to an indenture (individually,
and as supplemented from time to time, an “Indenture”) between the Company and a trustee to be identified in the applicable
Prospectus Supplement (the “Trustee”); (ii) such Indenture shall have been duly authorized, executed and delivered
on behalf of the Company; (iii) all terms of such Debt Securities not provided for in such Indenture shall have been established
in accordance with the provisions of the Indenture and reflected in appropriate documentation approved by us and, if applicable,
executed and delivered by the Company and the Trustee; (iv) such Debt Securities shall have been duly executed, authenticated,
issued and delivered in accordance with the provisions of such Indenture; (v) such Debt Securities, as executed and delivered,
do not violate any law applicable to the Company or result in a default under or breach of any agreement or instrument binding
upon the Company; and (vi) such Debt Securities, as executed and delivered, comply with all requirements and restrictions, if any,
applicable to the Company, whether imposed by any court or governmental or regulatory body having jurisdiction over the Company.
With respect to any Securities consisting
of Warrants, we have further assumed that (i) such Warrants shall have been issued pursuant to a warrant agreement (individually,
a “Warrant Agreement”) between the Company and a warrant agent to be identified in the applicable Prospectus Supplement
(the “Warrant Agent”); (ii) such Warrant Agreement shall have been duly authorized, executed and delivered on behalf
of the Company; (iii) all terms of such Warrants shall have been established in accordance with the provisions of such Warrant
Agreement(s); (iv) such Warrants shall have been duly executed, issued and delivered in accordance with the provisions of such
Warrant Agreement(s); (v) such Warrants and the related Warrant Agreement(s), as executed and delivered, do not violate any law
applicable to the Company or result in a default under or breach of any agreement or instrument binding upon the Company; and (vi)
such Warrants and the related Warrant Agreement(s), as executed and delivered, comply with all requirements and restrictions, if
any, applicable to the Company, in any case whether imposed by any court or governmental or regulatory body having jurisdiction
over the Company.
With respect to any Securities consisting
of Rights, we have further assumed that (i) such Rights shall have been issued pursuant to a rights agreement (individually, a
“Rights Agreement”) between the Company and a rights agent to be identified in the applicable Prospectus Supplement
(the “Rights Agent”); (ii) such Rights Agreement shall have been duly authorized, executed and delivered on behalf
of the Company; (iii) all terms of such Rights shall have been established in accordance with the provisions of such Rights Agreement(s);
(iv) such Rights shall have been duly executed, issued and delivered in accordance with the provisions of such Rights Agreement(s);
(v) such Rights and the related Rights Agreement(s), as executed and delivered, do not violate any law applicable to the Company
or result in a default under or breach of any agreement or instrument binding upon the Company; and (vi) such Rights and the related
Rights Agreement(s), as executed and delivered, comply with all requirements and restrictions, if any, applicable to the Company,
in any case whether imposed by any court or governmental or regulatory body having jurisdiction over the Company.
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Ambow Education Holding Ltd.
May 8, 2019
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To the extent that the obligations of the
Company under an Indenture may be dependent on such matters, we further have assumed for purposes of this opinion letter that the
Trustee under each Indenture (i) is duly organized, validly existing and in good standing under the laws of its jurisdiction of
organization; (ii) is duly qualified to engage in activities contemplated by such Indenture; (iii) has duly authorized, executed
and delivered such Indenture, and such Indenture constitutes the legally valid and binding obligation of such Trustee enforceable
against such Trustee in accordance with its terms; (iv) is in compliance, with respect to acting as a trustee under such Indenture,
with all applicable laws and regulations; and (v) has the requisite organizational and legal power and authority to perform its
obligations under such Indenture.
To the extent that the obligations of the
Company under any Warrant or Warrant Agreement may be dependent on such matters, we further have assumed for purposes of this opinion
letter that the Warrant Agent under each Warrant Agreement (i) is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization; (ii) is duly qualified to engage in the activities contemplated by such Warrant Agreement;
(iii) has duly authorized, executed and delivered such Warrant Agreement, and such Warrant Agreement constitutes the legally valid
and binding obligation of such Warrant Agent enforceable against such Warrant Agent in accordance with its terms; (iv) is in compliance,
with respect to acting as a Warrant Agent under such Warrant Agreement, with all applicable laws and regulations; and (v) has the
requisite organizational and legal power and authority to perform its obligations under such Warrant Agreement.
To the extent that the obligations of the
Company under any Rights or Rights Agreement may be dependent on such matters, we further have assumed for purposes of this opinion
letter that the Rights Agent under each Rights Agreement (i) is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization; (ii) is duly qualified to engage in the activities contemplated by such Rights Agreement;
(iii) has duly authorized, executed and delivered such Rights Agreement, and such Rights Agreement constitutes the legally valid
and binding obligation of such Rights Agent enforceable against such Rights Agent in accordance with its terms; (iv) is in compliance,
with respect to acting as a Rights Agent under such Rights Agreement, with all applicable laws and regulations; and (v) has the
requisite organizational and legal power and authority to perform its obligations under such Rights Agreement.
We express no opinion with respect to the
enforceability of: (i) provisions relating to choice of law, choice of venue, jurisdiction or waivers of jury trial, or (ii) any
waiver of any usury defense. This opinion letter is rendered as of the date hereof, and we disclaim any undertaking to advise you
of any subsequent changes in the facts stated or assumed herein or any subsequent changes in applicable law that may come to our
attention, and we have assumed that no change in the facts stated or assumed herein or in applicable law after the date hereof
will affect adversely our ability to render an opinion letter after the date hereof (i) containing the same legal conclusions set
forth herein and (ii) subject only to such (or fewer) assumptions, limitations and qualifications as are contained herein.
The foregoing opinions are limited to the
laws of the State of New York and applicable federal laws of the United States of America, and we express no opinion as to the
effect of the laws of any other jurisdiction, domestic or foreign. We are not rendering any opinion as to compliance with any federal
or state antifraud law, rule, or regulation relating to securities, or to the sale or issuance thereof.
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Ambow Education Holding Ltd.
May 8, 2019
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We hereby consent to the filing of this
opinion letter with the Commission as Exhibit 5.2 to the Registration Statement in accordance with the requirements of Item 601(b)(5)
of Regulation S−K under the Securities Act and to the reference to our firm therein and in the Prospectus and any Prospectus
Supplement under the caption “Legal Matters.” In giving such consent, we do not thereby admit that this firm is within
the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission
thereunder.
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Very truly yours,
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/s/ Loeb & Loeb LLP
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Loeb & Loeb LLP
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Exhibit 23.3
Independent
Registered Public Accounting Firm’s Consent
We consent to the incorporation by reference
in this Registration Statement of Ambow Education Holding Ltd. on Form F-3 of our report dated April 5, 2019, with respect
to our audits of the consolidated financial statements of Ambow Education Holding Ltd. as of December 31, 2018 and 2017 and
for the years ended December 31, 2018, 2017 and 2016 appearing in the Annual Report on Form 20-F of Ambow Education Holding Ltd.
for the year ended December 31, 2018. We also consent to the reference to our firm under the heading “Experts” in the
Prospectus, which is part of this Registration Statement.
/s/ Marcum Bernstein & Pinchuk
llp
Marcum Bernstein & Pinchuk
llp
Guangzhou, China
May 8, 2019